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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 the Matter of the Application of ) ) CHARLOTTESVILLE QUALITY ) File No. 52898-CM-P-92 CABLE CORPORATION ) ) For Authority to Construct and Operate) A Multipoint Distribution Service Station) on Channel 1 at Lynchburg, Virginia ) 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 an application for authority to construct and operate a Multipoint Distribution Service ("MDS") station on Channel 1 at Lynchburg, Virginia. Charlottesville Quality Cable Corporation ("CQCC" or "Petitioner") seeks reconsideration of the Commission staff decision to return its application as unacceptable for filing. In this order, we find that the application was properly returned. Accordingly, the petition for reconsideration is denied. II. BACKGROUND 2. The subject application was filed with the Commission on December 31, 1991. Commission staff reviewed the application, which was returned by individual return letter. The returned application proposed an MDS station on Channel 1 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). According to the return letter, the application was returned for "inadequate interference analysis pursuant to 47 C.F.R.  21.902 due to [the] . . . failure to consider all previously-proposed and/or authorized ITFS [Instructional Television Fixed Service] or MDS station(s)." 3. Interference Study Requirements. At the time the above-referenced application was filed,  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 other authorized or previously proposed cochannel station, or if the applicant's proposed transmitter was within 50 miles of the transmitter coordinates of any other authorized or previously proposed cochannel station. 47 C.F.R.  21.902(c)(1) (1991). In addition, 21.902(c)(2) required that an 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) (1991). III. DISCUSSION 4. Availability of Information on Authorized or Previously Proposed Stations. On reconsideration, petitioner argues that the returned application was acceptable for filing. Primarily, it claims that the interference analysis filed with its application "established complete compliance with the interference analysis requirements of Section 21.902" and that it is "unaware of any licensed or proposed facilities, other than those addressed . . . that should have been analyzed." See CQCC Petition for Reconsideration at 1-2. 5. Despite petitioner's claim that it is not aware of any authorized stations or pending applications filed for the geographic areas of the returned application except for the one authorized station petitioner did study, a review by Commission staff of two FCC listings of active applications reveals one authorized station and one pending application in addition to the one station studied by the petitioner that had an unobstructed electrical path from or were within 50 miles of, the petitioned application. Petitioner did not file interference analyses for these stations. The listings of active applications reviewed were dated November 8, 1991, and December 16, 1991, and these listings were available prior to the December 31, 1991 filing date of the petitioned application. The Commission has identified the list of active applications as a resource to be consulted by applicants for new stations in preparing the required interference studies. 6. Additional sources of information were also available for petitioner's use. For example, petitioner could have utilized the data base of the Commission's official online contractor or consulted public notices to become aware of the pending applications and the authorized stations that it was required to study. If Commission listings, the official online Commission data base, and public notices were consulted by petitioner, the required interference studies could have been prepared and transmitter sites could have been selected with more care based on the information available. In light of petitioner's failure to elaborate further upon its claim that it was unaware of any licensed or proposed facilities, other than the one station studied in its application, and in light of the results of our staff review of the list of active applications, petitioner has failed to satisfactorily explain why its application lacked interference studies. Petitioner has not made a case sufficient to support reinstatement. 7. Failure to File Interference Studies. Petitioner failed to include with its application interference studies for one authorized station and one pending application. 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. 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)(an 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 . . . ."). 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). Thus,  21.902(b) sets certain threshold interference protection levels and requires all MDS applicants to demonstrate that protection in interference studies submitted with the applications. 8. In failing to include interference studies with its application, petitioner failed to demonstrate a lack of harmful interference to existing and previously proposed MDS stations. The Commission stressed that applicants are expected "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." Amendment 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) (emphasis in original). See also 47 C.F.R.  21.902(b) and (c). Consequently, there has been a series of cases emphasizing the importance of including interference protection showings in MDS applications at the time they are filed. See, e.g., New Channels Communications, Inc., 57 RR 2d 1600, 1602 (1985); CNI Wireless, Inc., 9 FCC Rcd 2039, 2040 (Dom. Fac. Div. 1994); G.C. Cooper, 8 FCC Rcd 7007, 7008, n. 9 (Dom. Fac. Div. 1993); Marylan J. Benson, 7 FCC Rcd 4668 (Dom. Fac. Div. 1992). In addition, the interference study filed by petitioner with its application for a previously authorized station was inadequate in that it failed to demonstrate that the proposed station would provide at least 45 dB of cochannel interference protection pursuant to  21.902(b)(4). Therefore, the petitioner did not meet the interference protection requirements of  21.902 with regard to this previously authorized station. 9. Thus, having conducted a de novo review of the application and having considered the petitioner's argument on reconsideration, we conclude the staff action returning the petitioned application was proper in that the application was unacceptable for filing. See Family Entertainment Network, 9 FCC Rcd at 567 ("[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 analyses required by [ 21.902] are crucial.") 10. Therefore, it is based upon all the foregoing considerations that we affirm the staff's return of the Charlottesville Quality Cable Corporation application under consideration in this order. Reinstatement is not warranted and reconsideration is not justified. 11. Accordingly, IT IS ORDERED, that the petition for reconsideration filed by Charlottesville Quality Cable Corporation IS HEREBY DENIED. 12. IT IS FURTHER ORDERED, that the staff of the Video Services Division shall send copies of the decision to the authorized representative for the petitioner by certified mail, return receipt requested. FEDERAL COMMUNICATIONS COMMISSION Charles E. Dziedzic Assistant Chief, Video Services Division Mass Media Bureau