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File pnmc5021 (.txt & .wp) is in directory \pub\Public_Notices\Miscellaneous. ************************************************************************* Before the Federal Communications Commission Washington, D.C. 20554 In re Applications of ) ) RURALVISION CENTRAL, INC. ) File No. 00136-CM-P-92 ) For Authority to Construct And Operate a) Multipoint Distribution Service Station on) Channel 1 at Forrest City, Arkansas ) ) RURALVISION SOUTH, INC. ) File No. 00111-CM-P-92 ) For Authority to Construct And Operate a) Multipoint Distribution Service Station on) Channel 2A at Adairsville, Georgia ) ) RURALVISION CENTRAL, INC. ) File No. 00134-CM-P-92 ) For Authority to Construct And Operate a) Multipoint Distribution Service Station on) Channel 1 at Crystal, Michigan ) ) RURALVISION SOUTH, INC. ) File No. 00416-CM-P-92 ) For Authority to Construct And Operate a) Multipoint Distribution Service Station on) Channel 2A at Las Cruces, New Mexico ) ORDER ON RECONSIDERATION Adopted: June 7, 1996 Released: June 12, 1996 By the Assistant Chief, Video Services Division: I. INTRODUCTION 1. The Video Services Division has before it petitions for reconsideration of the return, pursuant to 47 C.F.R.  1.106(a) on delegated authority, of four applications for authority to construct and operate Multipoint Distribution Service ("MDS") stations on channels 1 and 2A at the following four transmitter sites: Forrest City, Arkansas; Adairsville, Georgia; Crystal, Michigan; and Las Cruces, New Mexico. Petitioners seek reconsideration of the Commission staff decision to return their applications as unacceptable for filing. 2. As these petitions raise common issues, their collective consideration is the most efficient use of Commission resources. Thus, we consider these petitions for reconsideration in this single order. In this order, we find that the applications were properly returned. Accordingly, the petitions for reconsideration are denied. II. BACKGROUND 3. Commission staff reviewed each of the subject applications and returned each by individual return letters. Each of the returned applications proposed an MDS station on channels 1 or 2 to which Part 21 of the Commission's rules apply. Section 21.20(a) of the rules sets forth the standards for returning MDS applications as unacceptable for filing: Unless the Commission shall otherwise permit, an application will be unacceptable for filing and will be returned to the applicant with a brief statement as to the omissions or discrepancies if: (1) The application is defective with respect to completeness of answers to questions, informational showings, execution, or other matters of a formal character; or (2) The application does not substantially comply with the Commission's rules, regulations, specific requests for additional information, or other requirements. 47 C.F.R.  21.20(a). Section 21.20(b) lists examples of common deficiencies which result in defective applications under paragraph (a) such as, the "application does not demonstrate compliance with the special requirements applicable to the radio service involved," the "application does not include all necessary exhibits," and the "application is filed after the cut-off date prescribed in  21.31 or  21.914 of this part." 47 C.F.R.  21.20(b)(4), (8) and (9). III. PETITIONS FOR RECONSIDERATION 4. Identical or substantially similar petitions for reconsideration were filed for four returned applications proposing four different transmitter sites. There follows a description of the applications filed for each of these locations and the reasons for the staff's return of each application. 5. Forrest City, Arkansas. On January 2, 1992, a petitioner filed an application proposing MDS station operation on channel 1 at a transmitter site at Forrest City, Arkansas. After reviewing the application, Commission staff returned the application as defective and unacceptable for filing by return notification letter dated February 10, 1993. The letter indicated that the application was returned because the applicant failed to demonstrate site availability pursuant to 47 C.F.R.  21.15(a). A reconsideration petition for the returned application was timely filed on March 12, 1993. 6. The application proposed a transmitter site that was within 50 miles of, or had an unobstructed electrical path to, one previously authorized MDS station. The Forrest City application lacked interference studies, required by  21.902(b) and (c), for this one authorized MDS station. In addition, the applicant failed to satisfy the requirements for service of interference studies stipulated by  21.902(g). 7. Adairsville, Georgia. On January 2, 1992, a petitioner filed an application proposing MDS station operation on channel 2A at a transmitter site at Adairsville, Georgia. After reviewing the application, Commission staff returned the application as defective and unacceptable for filing by return notification letter dated January 19, 1994. The letter indicated that the application was returned because the applicant: (1) failed to demonstrate site availability pursuant to 47 C.F.R.  21.15(a); and (2) failed to meet the requirements for performance of interference analysis as required by  21.902 due to failure to serve all affected parties with interference studies and failure to consider all authorized or previously proposed MDS stations. A reconsideration petition for the returned application was timely filed on February 18, 1994. 8. The application proposed a transmitter site that was within 50 miles of, or had an unobstructed electrical path to, four previously proposed MDS stations, for which applications were pending on January 2, 1992, the filing date of the Adairsville application. The Adairsville application lacked interference studies, required by  21.902(b) and (c), for three of these four pending applications. 9. Crystal, Michigan. On January 2, 1992, a petitioner filed an application proposing MDS station operation on channel 1 at a transmitter site at Crystal, Michigan. After reviewing the application, Commission staff returned the application as defective and unacceptable for filing by return notification letter dated April 14, 1993. The letter indicated that the application was returned because the applicant failed to demonstrate site availability pursuant to 47 C.F.R.  21.15(a). A reconsideration petition for the returned application was timely filed on May 12, 1993. 10. The Crystal application proposed a transmitter site that was within 50 miles of, or had an unobstructed electrical path to: (1) one previously authorized MDS station; and (2) one subsequently authorized MDS station, for which an application was pending on January 2, 1992, the filing date of the Crystal application. The application lacked interference studies, required by  21.902(b) and (c), for one previously authorized MDS station and one proposed MDS station. Thus, the Crystal applicant failed to demonstrate that the station proposed in the returned application would not cause harmful interference to authorized or previously proposed stations. See  21.902. In addition, the applicant failed to satisfy the requirements for service of interference studies stipulated by  21.902(g). 11. Las Cruces, New Mexico. On January 2, 1992, a petitioner filed an application proposing MDS station operation on channel 2A at a transmitter site at Las Cruces, New Mexico. After reviewing the application, Commission staff returned the application as defective and unacceptable for filing by return notification letter dated January 19, 1994. The letter indicated that the application was returned because the applicant: (1) failed to demonstrate site availability pursuant to 47 C.F.R.  21.15(a); (2) failed to submit sufficient, specific maintenance information pursuant to 47 C.F.R.  21.15(e); (3) failed to meet the requirements for performance of interference analysis as required by 47 C.F.R.  21.902 due to failure to serve all affected parties with interference studies and failure to consider all authorized or previously proposed MDS stations; and (4) failed to submit an adequate analysis concerning the possible impact upon Canadian or Mexican communications as required by 47 C.F.R.  21.902(c)(5). A reconsideration petition for the returned application was timely filed on February 18, 1994. 12. The application proposed a transmitter site that was within 50 miles of, or had an unobstructed electrical path to, three previously authorized MDS stations, for which applications were pending on January 2, 1992, the filing date of the Las Cruces application. The application lacked interference studies, required by  21.902(b) and (c), for one previously authorized MDS station. The interference studies that were submitted were inadequate in that the applicants: (1) did not include free space calculations for the desired to undesired signal ratio to each reference receiving antenna within the protected service area of the authorized or previously proposed stations, as required by  21.902(c), (d) and (f) (see  21.902(e)); (2) used incorrect methodology in calculating the protected service area of authorized or previously proposed stations; and (3) failed to engineer the station to provide at least 45 dB of cochannel interference protection pursuant to  21.902(b)(3), and/or 0 dB of adjacent channel interference protection pursuant to  21.902(b)(4). Thus, the Las Cruces applicant failed to demonstrate that the station proposed in the returned application would not cause harmful interference to authorized or previously proposed stations. See  21.902. In addition, the applicant failed to satisfy the requirements for service of interference studies stipulated by  21.902(g). No waiver requests were included in the Las Cruces application. IV. DISCUSSION 13. We note that each of the above applications was returned for failure to demonstrate site availability as required by  21.15(a). Upon further examination, on reconsideration, we find that the applications did meet the requirements of  21.15(a). It was harmless error nonetheless as the applications were deficient and unacceptable for filing due to each applicant's failure to submit required interference studies with its application and to give notice, by service of these studies, to parties required to be studied as noted infra and supra. See Greater Boston Television Corporation v. FCC, 444 F.2d 841, 851 (D.C. Cir. 1970), cert. denied, 403 U.S. 923 (1971). 14. Failure to File Interference Studies. Applicants for new MDS stations are required to file with their applications specific, technical interference showings for: (1) authorized and pending cochannel stations which are within 50 miles of the proposed station or to which the proposed station has an unobstructed electrical path (see 47 C.F.R. 21.902(c)(1)); and (2) adjacent channel stations to which the proposed station has an unobstructed electrical path (see 47 C.F.R.  21.902(c)(2)). See also In the Matter of 4,430 Applications for Authority to Construct and Operate Multipoint Distribution Service Stations at 62 Transmitter Sites, 10 FCC Rcd 1335, 1342 (1994) aff'd mem A/B Financial Inc., et. al. v. FCC, No. 95-1027 (D.C. Cir. Dec 26, 1995) (per curiam). Section 21.902(b) of the Commission's rules requires all MDS applicants to provide 45 dB of cochannel interference protection and 0 dB of adjacent channel protection, and  21.902(c) requires that the applicant demonstrate that protection in interference studies submitted with the applications. It has been recognized that "the demonstration of interference protection, at the time of filing, aids the Commission in the public interest determination that an applicant is technically qualified to be an MDS/MMDS licensee." Family Entertainment Network, Inc., 9 FCC Rcd 566, 567-68 n. 10 (Dom. Fac. Div. 1994). 15. Petitioners failed to file interference analyses for the authorized and previously proposed MDS stations that were within 50 miles of the applicants' proposed transmitter sites. Two of the petitioned applications, the Adairsville and Las Cruces applications, were also returned for failing to meet the requirements for performance of interference analysis as required by 47 C.F.R.  21.902 due to failure to serve all affected parties with interference studies and failure to consider all authorized or previously proposed MDS stations. Upon a de novo review on reconsideration, Commission staff has determined that the Forrest City and Crystal petitioners also failed to file interference studies for all authorized or previously proposed MDS stations within 50 miles or an unobstructed electrical path of the proposed station. 16. On reconsideration, the Adairsville and Las Cruces petitioners claim that for purposes of preparing interference studies they used a privately maintained electronic data base and referred to the Commission's database, both of which indicated that there were no pending or authorized MDS applications within 50 miles of petitioners' applications. The Adairsville and Las Cruces petitioners contend that they cannot be held accountable for information that is beyond their "ken." 17. We do not find the Adairsville and Las Cruces petitioners' claims persuasive. As noted previously, all of the proposed and authorized stations that petitioners failed to file studies for appeared on prior public notice or were listed on the Commission's December 16, 1991, internal staff listing. Therefore, had these petitioners reviewed the Commission's data base as claimed, they would have discovered the pending and authorized stations for which they were required to conduct interference studies. 18. The Adairsville and Las Cruces petitioners do not indicate which commercial data base they relied upon. It is possible that petitioners consulted a data base other than that of the Commission official on-line contractor, which provides a read-only version of the Commission's actual data base. Therefore, without providing additional facts, the Commission is unable to address the argument of these petitioners regarding their reliance upon a commercially available database. 19. The Las Cruces and Adairsville petitioners contend that their consulting engineers reviewed their respective return letters and, after consultation with Commission staff, learned that there were pending applications or authorized stations within 50 miles of their proposed transmitter sites. On reconsideration, petitioners submitted interference studies for these newly discovered stations or pending applications. However, as discussed supra, these applications and stations were all listed on the publicly available sources of prior public notice or the Commission's internal staff listing. Therefore, we decline to accept these post-return interference showings. It is established that the Commission is under no obligation to accept curative showings after an application has been returned or dismissed, and there has been a series of cases denying attempts to submit such showings post-return. See, e.g., Edna Cornaggia, 8 FCC Rcd 5442, 5444 n.7 (Dom. Fac. Div. 1993); Marylan J. Benson, 7 FCC Rcd 4668, 4669, n.9 (Dom. Fac. Div. 1992). Thus, we find that these applications were properly returned as unacceptable for filing. See MDS Technical Order, Amendment of Parts 21, 74 and 94 of the Commission's Rules and Regulations with regard to the Technical Requirements Applicable to the Multipoint Distribution Service, the Instructional Fixed Television Service and the Private Operational-Fixed Microwave Service (OFS), 98 FCC 2d 68, 93 (1984); see also Family Entertainment, 9 FCC Rcd at 567; Dan S. Bagley, Jr., 7 FCC Rcd 4002, 4003 (Dom. Fac. Div. 1992). 20. Notice to Affected Parties In addition, each applicant failed to serve copies of interference analyses, as required by  21.902(g), on all applicants, conditional licensees and licensees for stations required to be studied by  21.902(c), thus depriving affected parties of notice and an opportunity to be heard. In Edna Cornaggia, 8 FCC Rcd at 5444, the return of a modification application was upheld for failure to comply with  21.902(g): The Commission makes provision for actual notice and an opportunity to be heard by parties in interest by requiring at Section 21.902(g) that microwave stations that might be affected by operation of an MDS station be served a copy of the required interference analysis for their station. Cornaggia admittedly failed to properly serve VisionAire with a copy of the interference analysis . . . . Due to this lack of service, the orderly process contemplated in the Commission's rulemaking order, in which Commission staff resolves interference problems after oppositions are filed, was negated. Thus, these applications were also properly returned as unacceptable for filing due to failure to comply with the service requirements of  21.902(g). V. CONCLUSION 21. In view of all of the foregoing considerations, we affirm the staff's return of the Ruralvision Central, Inc. and Ruralvision South, Inc. applications under consideration in this order. Reinstatement is not warranted and reconsideration is not justified. 22. Accordingly, IT IS ORDERED, that the above-referenced Ruralvision Central, Inc. and Ruralvision South, Inc. petitions for reconsideration ARE HEREBY DENIED. 23. IT IS FURTHER ORDERED, that the staff of the Video Services Division shall send copies of the decision to the authorized representative for the petitioners by certified mail, return receipt requested. FEDERAL COMMUNICATIONS COMMISSION Charles E. Dziedzic Assistant Chief, Video Services Division Mass Media Bureau