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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 Applications of ) ) TRI-COUNTY COMMUNICATIONS ) File No. 62626-CM-P-91, ) 62627-CM-P-91 For Authority To Construct and Operate) Multipoint Distribution Service Stations) on Channels 1 and 2A ) at Brownsville, Texas ) 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 two petitions for reconsideration of the return, pursuant to 47 C.F.R.  1.106(a) on delegated authority, of two applications for authority to construct and operate Multipoint Distribution Service ("MDS") stations on channels 1 and 2A at Brownsville, Texas, filed by the above-captioned petitioner, Tri-County Communications ("Tri-County"). The Tri-County applications were filed with the Commission on January 20, 1991. In its petitions, which were filed on April 22, 1994, Tri- County seeks reconsideration of the Commission staff decisions to return its applications as unacceptable for filing. As these petitions raise common issues, we will consider them in this single order. II. BACKGROUND 2. Each of the returned applications proposed an MDS station to which Part 21 of the Commission's rules apply. A review of the applications, conducted by Commission staff, revealed that the applications were unacceptable for filing. 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). 3. Commission staff returned the Tri-County applications by return notification letters dated March 23, 1993, pursuant to  21.20. Specifically, the Tri-County applications were returned by the Commission staff as unacceptable for filing because the applicant: (1) 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 Multichannel Multipoint Distribution Service ("MMDS") or Instructional Television Fixed Service ("ITFS") stations; (2) did not include a list of the correct carrier frequencies on which the transmitter would operate, pursuant to 47 C.F.R.  21.907; and, (3) failed to include a written description of emergency repair notification procedures by customers to the local maintenance center or person responsible for the technical operation, and the average repair response time as required by 47 C.F.R.  21.15(e). The Tri-County channel 1 application was additionally returned because the applicant failed to include an analysis concerning possible impact upon Mexican communications as required by 47 C.F.R.  21.902(c)(5). III. DISCUSSION 4. As discussed in detail below, petitioner in its applications failed to provide correct information concerning carrier frequency, emissions designator and emergency maintenance procedures. Therefore, as petitioner's deficiencies in these areas are sufficient grounds to justify return, we need not address the additional application deficiencies listed in the return letters. 5. Carrier Frequency Information and Emissions Designators. Tri-County argues that the staff erred in returning its applications for failure to include the correct carrier frequency on which the transmitter would operate. Tri-County states that the regulation cited by the staff, 47 C.F.R.  21.907, incorporates by reference certain definitions of carrier frequencies found in Part 73 of the rules, but that  21.907 does not call for specific carrier frequencies. Tri-County contends that if the Commission wanted specific information on carrier frequency, it should have required it through a condition in the authorization of the station. Section 21.907 states that an MDS licensee assigned a 6 MHz channel must be able to provide television service which complies with the VHF transmission standards set forth in  73.682(a) of the regulations. Tri-County specified MDS 2156-2160 MHz(V) as its frequency path information for both its Channel 1 and 2A applications. Application File No. 62626-CM-P-91, the channel 1 application, did not satisfy the transmission standards enumerated in  73.682(a), which specifies a visual carrier frequency of 1.25 MHz above the lower boundary of the channel and an aural center frequency 4.5 higher than the visual carrier frequency. 47 C.F.R.  73.682(a). Application File No. 62627-CM-P-91, the channel 2A application, did not satisfy the visual carrier frequency part of the transmission standards. Hence, these applications were properly returned as unacceptable for filing for failure to provide correct carrier frequency information. 6. We also found, on de novo review, that the Tri-County applications were properly returned for failure to specify the correct emission designator type. The application form used for MDS stations at the time Tri-County applied, FCC-494, includes in section 10, "Transmitter Information," question (g), which asks for specification of the type of emission designator to be used. Tri-County included as the emission designator type "4M00F1D" in each of its applications. Section 21.905(a) of Part 21, which regulates "Emissions and Bandwidth," for MDS stations, states that a station transmitting a television signal will normally employ "vestigial sideband amplitude modulation (C3F) for the visual signal, and frequency modulation (F3E) or (G3E) for the accompanying aural signal." 47 C.F.R.  21.905(a). Part (b) of that regulation allows for different types of emissions to be authorized if the applicant describes fully the modulation and bandwidth desired. 47 C.F.R.  21.905(b). A review of  2.201 of the Commission's regulations, which specifies the symbol classification of emissions, reveals that the code selected by Tri-County,"4M00F1D," does not comply with the requirements of the regulation. For example, the "D" code indicates that the emission designator will transmit "data transmission, telemetry, telecommand" rather than television, code F. 47 C.F.R.  2.201(e). See also 47 C.F.R.  21.907 (requiring MDS licensee to provide television service). 7. Statement of Maintenance and Emergency Notification Procedures. Section 21.15(e) requires that an applicant "submit a showing of the general maintenance procedures involved . . . . The showing should include . . . (2) [t]he manner in which technical personnel are made aware of the malfunction . . . and the appropriate time required for them to reach any of the stations in the event of an emergency . . . ." 47 C.F.R.  21.15(e). We affirmed the importance of expressly describing emergency notification procedures when we revised Part 21 of the Commission's rules and eliminated some of the maintenance information requirements, but retained this required description. See Revision of Part 21 of the Commission's Rules, 2 FCC Rcd 5713, 5752, n.53 (1987). The return notification letters notified the applicant of the failure to comply with  21.15(e). Petitioner argues that the provision of Exhibit H of the application, in which applicants are asked to describe emergency notification procedures, and the provision of a telephone number and address as a point of contact in the event of a service problem at question 18 of form 494, satisfied the regulation. Exhibit H of these applications stated in full: A routine preventive maintenance schedule will be followed. While the MDS transmitter is operated, it will be monitored off-air to verify quality transmission. Properly licensed technical personnel will be responsible for the operation and maintenance of the station. Checks and adjustments will be made using the equipment manufacturer's instruction manuals as a guide. Emergency repairs will be performed by assigned and licensed maintenance personnel or by a manufacturer's field engineer. This statement fails to provide the specificity required by  21.15(e)(2). In particular, it does not state the manner in which the technical personnel are made aware of the malfunction, nor the appropriate time required for them to reach the station as required by the regulation. Accordingly, these applications were also properly returned for failure to provide satisfactory information on maintenance and emergency notification procedures. 8. Unacceptable Application. Tri-County contends that the deficiencies noted in the return notification letter, other than the lack of interference studies, "is data of the sort which does not affect the grant of a conditional license," and that when such information is requested, it is made an express condition to be fulfilled prior to the construction of a station. However, Tri-County's petitions cite no regulation or case law to support this contention. Tri- County failed to specify the correct carrier frequency pursuant to  21.907 and emission designator pursuant to  21.905, and failed to provide specific maintenance and emergency notification information pursuant to  21.15(e)(2). These applications were therefore unacceptable for filing pursuant to  21.20(a), which states that an application will be deemed unacceptable if it is "defective with respect to completeness of answers to questions, informational showings, execution, or other matters of a formal character." 47 C.F.R.  21.20(a)(1). III. CONCLUSION 9. In view of the foregoing, we affirm the staff's return of the Tri-County applications considered in this order. Reconsideration is not justified and reinstatement of the applications is not warranted. 10. Accordingly, IT IS ORDERED THAT the reconsideration petitions filed by Tri- County ARE HEREBY DENIED. 11. IT IS FURTHER ORDERED THAT the staff of the Video Services Division shall send copies 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