NOTICE ************************************************************************* NOTICE ************************************************************************* This document was originally prepared in Word Perfect. If the original document contained-- * Footnotes * Boldface & Italics --this information is missing in this version The document format (spacing, margins, tabs, etc.) is changed too. If you need the complete document, download the Word Perfect version. For information about downloading documents (FTP) see file pnmc5021. File pnmc5021 (.txt & .wp) is in directory \pub\Public_Notices\Miscellaneous. ************************************************************************* Before the Federal Communications Commission Washington, D.C. 20554 In re Applications of ) ) Ronald L. Wilson ) File No. 50553-CM-P-90 ) For Authority to Construct and Operate a) Multipoint Distribution Service Station on) the E Group Channels at El Centro, ) California ) ) Liberty Broadcast Partners ) File No. 50567-CM-P-90 ) For Authority to Construct and Operate a) Multipoint Distribution Service Station on) the E Group Channels at El Centro, ) California ) ) BFD Microcable Partnership ) File No. 50584-CM-P-90 ) For Authority to Construct and Operate a) Multipoint Distribution Service Station on) the E Group Channels at El Centro, ) California ) ORDER ON RECONSIDERATION Adopted: June 19, 1996 Released: June 25, 1996 By the Assistant Chief, Video Services Division: I. INTRODUCTION 1. The Video Services Division has before it a petition for reconsideration of the return, pursuant to 47 C.F.R.  1.106(a) on delegated authority, of three applications for authority to construct and operate Multipoint Distribution Service ("MDS") stations on the E channels at El Centro, California. These three applications were originally filed with the Commission on March 5, 1990, and were amended on April 12, 1990, and April 19, 1990. The applications were again amended on June 15, 1990, June 18, 1990, and June 19, 1990. In their joint petition, which was timely filed on August 3, 1990, petitioners seek reconsideration of the Commission staff decision to return their applications as unacceptable for filing. We will consider this petition for reconsideration of the above-referenced applications in a single order. II. BACKGROUND 2. On March 5, 1990, petitioners filed three Multichannel Multipoint Distribution Service ("MMDS") applications proposing the same transmitter site at El Centro, California. Applicants filed amendments on April 12, 1990, and April 19, 1990, to change their proposed transmitter operations from the F channel group to the E channel group, to specify the exact visual and aural frequencies to be used, to specify different transmitter equipment, to specify different antenna polarization, to specify different equipment specifications, and to submit new interference analysis. The Commission staff returned the applications as unacceptable for filing on May 16, 1990. However, applicants contacted Commission staff and asserted that the previously submitted amendments had cured the Commission-noted defects regarding the applications. Based on these assertions, Commission staff returned the applications to the processing line for further review. Applicants filed additional amendments on June 15, 1990, June 18, 1990, and June 19, 1990, proposing to co-locate with adjacent channel stations or change antenna polarization to reduce interference with adjacent channel operations. After again reviewing each El Centro application and their respective amendments, Commission staff returned the applications as defective and unacceptable for filing on July 20, 1990. Specifically, the return notification letters stated that the El Centro applicants had "perfected" their applications after the May 7, 1990, cut-off date for the E channel group applications. Reconsideration petitions for the returned applications were timely filed on August 3, 1990. 3. Petitioners contend that since the June 1990 curative amendments to their applications were submitted after the cut-off date but prior to the July 1990 return of their applications, their amendments should be accepted. Petitioners further argue that the amendments were minor, did not affect the underlying engineering of the proposed stations and that the applications were otherwise acceptable for filing on the May 7, 1990, cut-off date. Thus, petitioners argue that their applications should be reinstated and given comparative consideration with applications pending prior to May 7, 1990. III. DISCUSSION 4. Interference Protection. At the very inception of MDS, the Commission established the principle that subsequently filed applications must not cause harmful interference to any previously proposed or authorized MDS station. "Of course, the applicant for the second channel sought will be expected to demonstrate that his system is designed so that significant interference will not occur with respect to the first MDS channel . . . . " Amendments of Parts 1,2,21 and 43 of the Commission's Rules and Regulations to Provide for Licensing and Regulation of Common Carrier Radio Stations in the Multipoint Distribution Service, 45 FCC 2d 616, 621 (1974). More than eight years before the above-referenced applications were filed, the Commission explained its emphasis on this requirement for MDS applications. It is possible for co-channel interference generated by one MDS station to cause unacceptable distortion of another station's signal from as far away as 50 miles. Section 21.90[2](c) of our Rules therefore requires an MDS application to include an interference study containing an analysis of the potential for harmful interference with other MDS stations located within a 50 mile radius of the proposed station. R.L. Mohr, 85 FCC 2d 596, 606 (1981). It has also 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). Thus,  21.902(b) requires all MDS applicants and licensees to provide 45 dB of cochannel interference protection and 0 dB of adjacent channel interference protection, and to demonstrate that protection in interference studies submitted with the applications. 5. At the time that the El Centro applications were filed, in order to demonstrate compliance with  21.902(b) and so that mutually exclusive determinations could be made,  21.902(c)(1) of the Commission's rules required that an MDS applicant include with the application an analysis of the potential for harmful cochannel interference with any authorized or previously proposed station if the applicant's proposed transmitting antenna had an unobstructed electrical path to any part of the protected service area of any authorized or previously proposed cochannel station, or if the applicant's proposed transmitter is within 50 miles of the transmitter coordinates of any other authorized or previously proposed cochannel station. 47 C.F.R.  21.902(c)(1). In addition,  21.902(c)(2) required that any MDS applicant include with the application an analysis of the potential for harmful adjacent channel interference if the applicant's proposed transmitting antenna had an unobstructed electrical path to any part of the protected service area of any other authorized or previously proposed adjacent channel station. 47 C.F.R.  21.902(c)(2); see 47 C.F.R.  21.902(a), (b), (d), and (f). Section 21.901(d)(7) further required that each MDS application for the E or F channels include the applicant's written statement of the techniques that would be employed at the proposed station to avoid interference with the operation of adjacent channel stations. 47 C.F.R.  21.901(d)(7). 6. Petitioners' applications failed to demonstrate a lack of harmful interference to existing MMDS licensees and to previously proposed MMDS licensees and to previously proposed MMDS applicants. As discussed above, applicants for new E or F channels are required to file specific technical interference protection showings for cochannel and adjacent channel stations. These interference showings are a significant requirement because the Commission, in reallocating the E and F channels from Instructional Television Fixed Service ("ITFS") to MDS, did so with the understanding that certain adjacent channel interference problems might arise. The Commission also anticipated that some authorized cochannel stations would be spaced more closely than ordinarily allowed and require careful planning and engineering. Amendments of Parts 2, 21, 74 and 94 of the Commission's Rules and Regulations in regard to frequency allocation to the Instructional Television Fixed Service, the Multipoint Distribution Service, and the Private Operational Fixed Microwave Service, 94 FCC 2d 1203, 1264 (1983). Thus, the Commission stressed that "we expect applicants to address this problem in their applications. Those applications that do not contain an analysis of how the applicant intends to avoid cochannel interference in adjacent areas will not be considered acceptable for filing." Id. at 1264. See also  21.902(b) and (c). Consequently, there has been a series of cases emphasizing the importance of interference protection showings in MDS applications for the E or F channels. 7. Based upon a de novo review of the returned El Centro applications, we conclude that the El Centro petitioners failed to meet the requirements for performance of interference studies, 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. Specifically, petitioners' applications lacked interference studies, required by  21.902(b) and (c), for two 1983 subsequently authorized MMDS stations and 19 1983 previously proposed MMDS stations, which were pending on March 5, 1990, the initial filing date of the el Centro applications, as well as April 12, 1990 and April 19, 1990, the filing dates of the first El Centro amendments. Because petitioners here failed to make the required showings regarding interference protection, their applications cannot be characterized as complete or in substantial compliance with the Commission's rules. 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 (OFS), 98 FCC 2d 68, 93 (1984) ( hereinafter MDS Technical Order); ("An application that proposes cochannel or adjacent channel operation and does not contain a showing that the proposed operation will not cause harmful interference as described herein will not be accepted for filing."); see also Family Entertainment, Inc., 9 FCC Rcd 566, 567 (Dom. Fac. Div. 1994) ("[T]he filing of an interference analysis, which demonstrates lack of harmful interference, is considered a basic requirement in determining the acceptability of an application."); Dan S. Bagley, Jr., 7 FCC Rcd 4002, 4003 (Dom. Fac. Div. 1992) ("In the processing of MDS station applications, the interference analysis required by [ 21.902] are crucial."). 8. Notice to Affected Parties. In addition, each applicant failed to serve, as required by  21.902(g), 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 5442, 5444 (Dom. Fac. Div. 1993), 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. Hence, each of the above referenced applications were properly returned as unacceptable for filing due to failure to comply with the service requirements of  21.902(g). 9. As the El Centro applications were unacceptable for filing due to failure to serve all affected parties with interference studies and failure to consider all authorized or previously proposed MDS stations, pursuant to  21.902, we need not discuss the arguments presented by the petitioners regarding cut-off, the submission of post-cut off amendments, and the definition of such amendments as either major or minor. IV. CONCLUSION 10. In view of all the foregoing considerations, we affirm the staff's return of the applications under consideration in this order. Reconsideration is not justified and reinstatement of the applications is not warranted. 11. Accordingly, IT IS ORDERED, that the joint reconsideration petition filed by Ronald L. Wilson, Liberty Broadcast Partners and BFD Microcable Partnership IS HEREBY DENIED. 12. IT IS FURTHER ORDERED, that the staff of the Video Service 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