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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 ) ) PAUL JACKSON ENTERPRISES ) File No. 271-CM-P-92 ) For Authority to Construct and Operate a ) Multipoint Distribution Service Station on) the E Group Channels in ) Chatsworth, Georgia ) 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 the E channels at Chatsworth, Georgia. We will consider this reconsideration petition in this order. II. BACKGROUND 2. Paul Jackson Enterprises ("PJE") proposed a transmitter site at Chatsworth, Georgia for the E group channels which was filed with the Commission, on January 2, 1992. A preliminary review of the PJE application, conducted by Commission staff, revealed that the application was unacceptable for filing. Specifically, the return notification letter stated that the Chatsworth applicant failed to meet the requirements for performance of interference analysis, as set forth at 47 C.F.R.  21.902, due to failure to serve all affected parties pursuant to  21.902(g) and failure to consider all previously proposed or authorized MMDS or Instructional Television Fixed Service ("ITFS") stations as well as failure to engineer the proposed station to provide at least 0 dB of interference protection within the protected service areas of other authorized or previously proposed adjacent channel stations as required by  21.902(b). Consequently, the Commission staff returned PJE's application by return notification letter dated January 28, 1993, pursuant to 47 C.F.R.  21.20. III. DISCUSSION 3. Interference Protection. Section 21.902(b) requires each MDS applicants to engineer its proposed station to provide at least 45 dB of interference protection within the protected service areas of all other authorized or previously proposed cochannel stations and at least 0 dB of interference protection within the protected service area of all other previously proposed or authorized adjacent channel stations. 47 C.F.R. 21.902(b)(3) and (4). MDS applicants are required to demonstrate these protections in interference studies submitted with their applications. 4. At the time PJE's application was filed, in order to demonstrate compliance with  21.902(b), applicants were required to 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); 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 operation of adjacent channel stations. The applicant was also required to show what steps were taken to comply with the requirements of  21.902(a), which required MDS applicants, licensees, and conditional licensees, to make exceptional efforts to avoid harmful interference to other users and to avoid blocking potential adjacent channel stations in the same area and cochannel stations in nearby areas. 47 C.F.R.  21.901(d)(7). 5. These interference showings are a significant requirement which the Commission has repeatedly emphasized because of the extensive planning and engineering involved in the MDS licensing process. The Commission, in reallocating the E and F channels from 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. See 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) (MMDS Allocation Order). 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." MMDS Allocation Order, 94 FCC 2d at 1264. See also 47 C.F.R.  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. Hence, "the filing of an interference analysis, which demonstrates lack of harmful interference, is considered a basic requirement in determining the acceptability of an application." Family Entertainment, 9 FCC at 567. 6. In a de novo review, on reconsideration, we have determined that PJE's application was properly returned for failure to comply with our interference protection requirements by failing to demonstrate the lack of harmful interference to proposed and authorized stations required to be studied pursuant to  21.902(c). Specifically, at the time of PJE's application filing, PJE failed to file interference studies for: (1) one 1983 previously authorized MMDS station; (2) two 1983 subsequently authorized MMDS stations; (2) 65 1983 previously proposed MMDS stations, which had applications pending on January 2, 1992, the filing date of the Chatsworth application; and (3) 149 post-1983 previously proposed MMDS stations, which had applications pending on January 2, 1992. 7. Petitioner raises several arguments to explain its failure to file some, but not all, of these required studies with its application. Specifically, after the return of its application, petitioner claims to have spoken with FCC engineering staff who revealed three areas of concern. The first omission, according to petitioner, was petitioner's failure to submit an interference study, with its application, for the pending previously proposed cochannel application, Southern Wireless Cable ("Southern"), Application File No. 53494-CM-P-92, for Jasper, Georgia. With respect to the Southern application, which was filed on November 12, 1991, petitioner argues that prior to its application filing this application did not appear on FCC internal staff listings, which petitioner characterizes as "inventory," nor on public notice, hence, PJE was unable to know of the Southern application. The second area of concern, according to petitioner, was petitioner's failure to submit interference studies, with its application, for pending previously proposed adjacent channel stations for Chattanooga, Tennessee. Regarding these proposed adjacent channel Chattanooga stations, petitioner claims it was not required to submit interference studies for these as  21.902(c)(2) requires interference studies for adjacent channels only when there exists an unobstructed electrical path. Here, PJE asserts, there is an obstructed electrical pathway between PJE's site and these stations. The last omission, according to PJE, was its failure to submit an interference study, with its application, for a pending previously proposed adjacent channel application, Greene Communications ("Greene"), Application File No. 5138-CM-P-83, for Atlanta, Georgia, located approximately ten miles from PJE's proposed site. As for the Greene application, petitioner argues that it acknowledged this proposed station in its application; pledged cooperation to protect it from interference, including possible collocation; held discussions which resulted in the applicant agreeing, if granted, "to work with PJE;" and that the application has since been dismissed. 8. At the time of PJE's application filing, PJE failed to submit required interference analyses for authorized or previously proposed stations which had appeared on public notice or FCC staff internal listings prior to the filing date of petitioner's application. For example, PJE failed to submit an interference study for an authorized station, WHT663, Application File No. 13505-CM-P-83, for Atlanta, Georgia which was placed on public notice on October 25, 1985, almost seven years prior to the Chatsworth application filing date. Copies of the Commission's public notices are available to the public at the time of issuance. See 47 C.F.R.  0.322 and 0.443. In addition, previously released notices are available for public inspection at the Commission's Press and News Media Division. Id. Furthermore, in PJE's application it was stated that "[a] further search was conducted of the FCC's lists on non-MSA market areas that were requested in 1983 and the weekly Public Notices current through December 11, 1991." (emphasis added). Therefore, given petitioner's failure to file interference analyses, at the time of its application filing, for numerous pending previously proposed and authorized stations listed on public notice, which according to PJE's application, it should have been aware of, we find that even apart from any failure of PJE to file an interference study for the Southern proposed station, petitioner failed to comply with  21.902(c). 9. Regarding the pending previously proposed Chattanooga stations, we reject petitioner's claims that interference studies were not required for the proposed adjacent channel stations, because of an alleged obstructed electrical pathway as factually incorrect. Our own independent engineering review, conducted on reconsideration, has revealed that PJE's transmitter site has an unobstructed electrical pathway to all of the adjacent channel Chattanooga stations. Hence, pursuant to  21.902(c)(2), PJE was required to submit interference analyses, with its application, for these previously proposed adjacent channel Chattanooga stations. 10. In addition, the one study that was submitted with PJE's application, for the 1983 subsequently authorized cochannel Chattanooga station, WMI855, Application File No. 10779- CM-P-83, was inadequate. Specifically, the interference analysis: (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 station, as required by  21.902(c),(d) and (f) (see  21.902(e)); (2) used incorrect methodology in calculating the protected service area of the authorized station; (3) failed to engineer the station to provide at least 45 dB of cochannel interference protection pursuant to  21.902(b)(3); and (4) used incorrect technical parameters for the transmitting antenna gain and the reference receiving antenna gain. 11. Lastly, we decline to grant PJE's request, contained in a supplement to its petition for reconsideration, for waiver of its obligation, pursuant to  21.902(c), to submit interference analyses for all of the pending previously proposed Chattanooga cochannel and adjacent channel stations. Section  21.20(c) allows for the acceptance of applications for filing if: (1) The application is accompanied by a request which sets forth the reasons in support of a waiver of (or an exception to), in whole or in part, any specific rule, regulation, or requirement with which the application is in conflict; or (2) The Commission, upon its own motion, waives (or allows an exception to), in whole or in part, any rule, regulation or requirement. 47 C.F.R.  21.20(c)(1) and (2) (emphasis added). In addition, Section 21.19 provides that applications seeking waiver of the Commission's rules must contain a statement of reasons sufficient to justify a waiver. A waiver will only be granted upon an affirmative showing that: (a) The underlying purpose of the rule will not be served, or would be frustrated, by its application in the particular case, and that grant of the waiver is otherwise in the public interest; or (b) The unique facts and circumstances of a particular case render application of the rule inequitable, unduly burdensome, or otherwise contrary to the public interest. Applicants must also show the lack of a reasonable alternative. 47 C.F.R.  21.19. Accordingly, as PJE did not submit its request for waiver with its application, petitioner's request is untimely. See 47 C.F.R.  21.20(c)(1). Nor will we grant a waiver upon our own motion. We find that grant of a waiver of these required studies would not be in the public interest. As discussed previously, the interference analysis requirement is an imperative one which demands compliance at the time of the application. In addition, we do not believe the facts and circumstances of the Chatsworth application are sufficiently unique so as to warrant a waiver of this requirement. Also, due to the procedures established for MDS lotteries, it is not unusual for an applicant that initially loses in a lottery to be selected in a later lottery for qualification review and to be subsequently granted because the initial tentative selectee did not survive qualification review. See 47 C.F.R.  1.824(a). Thus, we will not grant a waiver sua sponte. 12. With respect to PJE's failure to submit an interference study for the closely located adjacent channel 1983 Greene application, we find petitioner's arguments unpersuasive. While PJE's application does recognize the existence of this proposed station, this acknowledgment does not substitute for the required interference study. Nor does PJE's proposal of collocation suffice as this is technically impossible based on the sites as proposed in the applications. According to Commission records, the Greene station is 10.16 miles from PJE's proposed site. In order to collocate with an adjacent channel station the applicants must be located at the same transmitter site. As for PJE's application pledge to cooperate to protect the Greene proposed station from interference, this does not excuse petitioner's failure to submit an interference study. A pledge to comply with the requirements of Section 21.902(a) does not exempt any MDS applicant from compliance with the requirements of Sections 21.901(d)(7) or 21.902(c). The mandate that applicants submit interference analyses with their applications is a separate requirement from the good faith commandment of  21.902(a), which mandates that "[a]ll [MDS] applicants, permittees, and licensees shall make exceptional efforts to avoid harmful interference . . . and . . . are expected to cooperate fully in attempting to resolve problems of potential interference . . . ." As noted earlier, interference analyses are necessary at the beginning of processing MDS applications; cannot be skipped; and are a prerequisite to the grant of a license. We also reject petitioner's unsupported assertion that Greene agreed "to work with PJE" if Greene's application was granted as petitioner provides no evidence of this "agreement." See Jim Bolton, 2 FCC Rcd 3207 ( Comm. Car. Bur. 1987) (a bald conclusion, without any offer of proof or documentary support, has no probative value). Finally, petitioner's statement concerning the probability of the subsequently dismissed Greene application receiving a license does not excuse petitioner's failure to file a required interference study for the application which was then-pending. See 47 C.F.R.  21.902(c). 13. Thus, due to PJE's failure to file required interference analyses for pending previously proposed and authorized 1983 and post-1983 stations as well as the deficiencies of the one interference study submitted, we find that the Chatsworth applicant failed to comply with  21.902(c). "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." Amendments of Parts 21, 74 and 94 of the Commission's Rules and Regulations with regard to Technical Requirements Applicable to the Multipoint Distribution Service, the Instructional Television Fixed Service and the Private Operational-Fixed Microwave Service (OFS), 98 FCC 2d 68, 93 (1984). Accordingly, PJE's application was unacceptable for filing and properly returned. 14. Post-Return Interference Analyses. On reconsideration and in several supplements thereto, petitioner seeks to submit interference analyses which were required at the time of PJE's application filing. Applications which lack complete and necessary information are unacceptable for filing pursuant to  21.20. In addition, at the time of PJE's application filing, pursuant to  21.23(a), the applicant could have amended,as a matter of right, its application prior to return. 15. As noted above, we find that the Chatsworth applicant was required to submit these interference showings and had access to the information necessary to prepare required interference analyses prior to filing. See supra  6, 8. However, PJE failed to make virtually any of the required interference showings with its application. In addition, the one study that was submitted with PJE's application was premised, by PJE's own admission, on a hypothetical transmitter site. See supra note 12. Therefore, in light of the foregoing, we decline to accept, on reconsideration, petitioner's interference showings. See Edna Cornaggia, 8 FCC Rcd 5442, 5444, n.7 (Dom. Fac. Div. 1993) ("[I]t is no longer possible to amend an application which has already been dismissed. . . ."); Earl V. Levels, 8 FCC Rcd 5506 (Dom. Fac. Div. 1993) (curative amendments filed with petition for reconsideration, attempting to supply a missing interference showing and other missing information, not allowed); Marylan J. Benson, 7 FCC Rcd at 4699 n.9 ("We reject Benson's contention that she should be permitted to file curative amendments and have her application reinstated nunc pro tunc, for further processing. We believe that the Division's initial return of the above-referenced Benson application as unacceptable for filing was correct. . . ."). Thus, acceptance of petitioner's interference studies on reconsideration is not warranted. 16. Notice to Affected Parties. In addition to submitting the required interference analyses to the Commission, an MDS applicant also must serve each required interference study upon all previously proposed or authorized station applicants, conditional licensees or licensees required to be studied and submit a list identifying each applicant, conditional licensee and licensee served. 47 C.F.R.  21.902(g). The Chatsworth applicant failed to serve copies of the required interference analyses, as mandated by  21.902(g), on all applicants, conditional licensees and licensees for stations stipulated to be studied by  21.902(c), thus depriving affected parties of notice and 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 opposition are filed, was negated. Thus, PJE's application was also properly returned as unacceptable for filing based on its failure to comply with the service requirements contained in  21.902(g). IV. CONCLUSION 17. In view of all the foregoing considerations, we affirm the staff's return of the Paul Jackson Enterprises application under consideration in this order. Reconsideration is not justified and reinstatement of the application is not warranted. 18. Accordingly, IT IS ORDERED, that the reconsideration petition filed by Paul Jackson Enterprises IS HEREBY DENIED. 19. IT IS FURTHER ORDERED, that the staff of the Video Services Division shall send a copy of the decision to the authorized representative for petitioner by certified mail, return receipt requested. FEDERAL COMMUNICATIONS COMMISSION Charles E. Dziedzic Assistant Chief, Video Services Division Mass Media Bureau