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Wilson j)ppFile No. 50553CMP90 j) For Authority to Construct and Operate aj) Multipoint Distribution Service Station onj) the E Group Channels at El Centro,j) Californiaj) j)  Xr -Liberty Broadcast Partnersj)ppFile No. 50567CMP90 j) For Authority to Construct and Operate aj) Multipoint Distribution Service Station onj) the E Group Channels at El Centro,j) Californiaj) j)  X-BFD Microcable Partnershipj)ppFile No. 50584CMP90 j) For Authority to Construct and Operate aj) Multipoint Distribution Service Station onj) the E Group Channels at El Centro,j) Californiaj)  X0-  ORDER ON RECONSIDERATION lU  X-X` hp x (#%'0*,.8135@8:X[W]e reject FEN's claim that its applications should be granted because the level of interference . . . is de  {On#- minimis. Section 21.902(b)(3) requires that an applicant demonstrate 45 dB of cochannel interference  >protection. In this rule provision, no reference is made to qualifying terms, degrees or levels, other than 45 dB at which interference would be deemed acceptable.(# 9 FCC Rcd at 568. and to demonstrate that"A. ,-(-(ZZ?" 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,   l21.902(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   Lmiles 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  X -  _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   LE 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  X-  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  XR-  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  X-  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  X- %of interference protection showings in MDS applications for the E or F channels. | {O\"-  ԍ See, e.g., New Channels Communications, Inc., 57 RR 2d 1600, 1602 (1985) ("In our view, an MDS   Japplication which does not contain the important and essential technical showing required by  21.902(c) cannot be   characterized as complete, or in substantial compliance with the Commission's rules and regulations, as required by  {O$-  ithe criteria for acceptability outlined in rule  21.20(a)."); CNI Wireless, Inc., 9 FCC Rcd 2039, 2040 (Dom. Fac.    Div. 1994) ("Section 21.902(c)(2) requires that an applicant initially file with the application analysis of the potential   for harmful interference with any authorized or previously proposed adjacent channel stations within the radio   <horizon of the applicant's proposed transmitting antenna . . . [B]ased upon CNI's failure to comply with Section"' ,-(-(W'"  {O-  21.902, the Division's finding, that CNI's application was defective and unacceptable for filing, was proper."); G.C.  {OZ-  hCooper, 8 FCC Rcd 7007, 7008, n. 9 (Dom. Fac. Div. 1993) ("[T]he standard for evaluating applications under Part   21 of the rules is not 'substantial completeness' but rather 'acceptability for filing'. . . . Cooper's application was  {O-  properly returned as unacceptable for filing. . . for failure to include the technical showing required. . . ."); Marylan  {O-  J. Benson, 7 FCC Rcd 4668 (Dom. Fac. Div. 1992) ("[T]hose applications that do not contain an analysis of how   the applicant intends to avoid cochannel interference in adjacent areas will not be considered acceptable . . . . This interference protection showing is a significant requirement. . . .").  (#(# " ,-(-(ZZ"  X- 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'   Oapplications lacked interference studies, required by  21.902(b) and (c), for two 1983  X-  .subsequently authorized MMDS stations and 19 1983 previously proposed MMDS stations,8 X yOP -  ԍ For example, the applicants failed to submit interference study for two 1983 subsequently authorized stations   Jat Yuma, Arizona, Application File Nos. 01530CMP83 and 09085CMP83, which were placed on public notice on August 29, 1986. 8   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,   ktheir applications cannot be characterized as complete or in substantial compliance with the  X -  0Commission'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  X -  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  X -  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  X-  Mconsidered a basic requirement in determining the acceptability of an application."); Dan S.  Xl-  \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.").  X)- !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  X-  by  21.902(c), thus depriving affected parties of notice and an opportunity to be heard. In Edna  X-  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):  XThe 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  0analysis 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"G0 ,-(-(ZZ]"  ]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   zaffected 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 cutoff, the submission of postcut 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.  l11. Accordingly, IT IS ORDERED, that the joint reconsideration petition filed by Ronald L. Wilson, Liberty Broadcast Partners and BFD Microcable Partnership U   U 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  J ` `  hh,Vpp