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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 ) ) CARIBBEAN MMDS PARTNERSHIP ) File Nos. 2299-CM-P-92 ) and 52019-CM-P-92 For Authority to Construct ) and Operate Multipoint ) Distribution Service Stations on ) the E and F Channels at ) Mayaguez, Puerto Rico ) 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 filed by Caribbean MMDS Partnership ("Caribbean") seeking reconsideration of the staff decision to return as unacceptable for filing the above-captioned applications for authority to construct and operate Multipoint Distribution Service ("MDS") stations on the E and F channels at Mayaguez, Puerto Rico. This order has been referred to the Video Services Division pursuant to  1.106(a) of the Commission's rules, 47 C.F.R.  1.106(a). Upon consideration of the arguments raised in the petitions, we find that petitioner's applications were properly returned, and thus, its petitions for reconsideration are denied. 2. On November 29, 1991, petitioner filed its MDS application for the F channel group. On February 28, 1992, petitioner filed its application for the E channel group. Part 21 of the Commission's rules applies to these applications. After reviewing the applications, the Commission staff returned each application by return notification letter dated March 17, 1993. The return letters indicated that the applications were being returned because the applicant: (1) filed past the cut-off period established in  21.31 or  21.914; (2) filed in an area not open for filing, pursuant to 47 C.F.R.  21.901(d)(4), as it did not meet the criteria established in Public Notice, Common Carrier Bureau Opens Filing Period For Multichannel Multipoint Distribution Service Applications, 3 FCC Rcd 2661 (Comm. Car. Bur. 1988) (hereinafter 1988 Public Notice), in that the applicants filed in the geographic area of an authorized MMDS station or a pending MMDS application; and (3) failed to comply with the Commission's requirements under  21.19 for grant of a waiver, and without a waiver, the applications were unacceptable for filing. See 47 C.F.R.  21.20(a). 3. Caribbean filed a petition for reconsideration for each of the applications on April 15, 1993. On reconsideration, petitioner argues that the return notification letters fail to express the factual basis for the decisions and thus do not comply with the Administrative Procedures Act; that the applications were not filed past the applicable cut-off date; and that the request for waiver of the fifty mile location restriction contained in the 1988 Public Notice, included in the applications, was not given a hard look as required by New Orleans Channel 20 v. FCC, 830 F.2d 361, 365 (D.C. Cir. 1987). Specifically, petitioner argues that the unique terrain situation present in Puerto Rico justifies the grant of a waiver in that total terrain blockage exists between the applicant's proposed stations and other stations in the region. Accordingly, petitioner requests that its applications be reinstated. II. BACKGROUND 4. Section 21.20(a) of the Commission's 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); see 47 C.F.R.  21.13, 21.15, 21.26 and 21.900. 5. Mutual Exclusivity. Typically, the first determination made by Commission staff is whether an MDS application is mutually exclusive with any authorized station or previously filed application. Section 21.31(a) of the Commission's rules provides the following standard for this determination: The Commission will consider applications to be mutually exclusive if their conflicts are such that the grant of one application would effectively preclude by reason of harmful electrical interference, or other practical reason, the grant of one or more of the other applications. The Commission will presume "harmful electrical interference" to mean interference which would result in a material impairment to service rendered to the public despite full cooperation in good faith by all applicants or parties to achieve reasonable technical adjustments which would avoid electrical conflict. 47 C.F.R.  21.31(a); see 47 C.F.R.  21.902(c), (d) and (f). In applying this standard, the staff evaluates whether the MDS applications were filed: (1) within 50 miles of an authorized or previously proposed MDS station, and (2) within the radio horizon, with an unobstructed electrical path, to the protected service area of an authorized or previously proposed MDS station. Applications which are determined to be either within 50 miles, or with an unobstructed electrical path to any part of the protected service area, of any station are considered to be mutually exclusive with the station, unless the applicant demonstrates a lack of harmful interference by submission of interference studies with its application pursuant to the standards specified in the Commission's rules. See 47 C.F.R.  21.902(b)(3) and (4) and text,  8, below. 6. Cut-off Date. In order to be acceptable for filing, MDS applications must be filed on or before the applicable cut-off date for mutually exclusive applications. The Commission initially authorized the filing of MDS applications on the E or F channels on one filing date, September 9, 1983. 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, 1262-66 (1983); Establishment of Multi-Channel Systems, 48 Fed. Reg. 33,873, as corrected, 48 Fed. Reg. 34,746 (1983). Thereafter, no additional applications for new stations on the E or F channels were accepted for filing until April 20, 1988, pursuant to 47 C.F.R.  21.901(d)(4). Applications for the E or F channels which complied with specified restrictions could be filed between April 20, 1988 and April 9, 1992. See  9, below. 7. If an MMDS application for the E or F channels is mutually exclusive with a 1983 authorized station or application, the applicable cut-off date is the one-day filing date designated for these applications, September 9, 1983. Establishment of Multi-Channel Systems, 48 Fed. Reg. 33,873, as corrected, 48 Fed. Reg. 34,746. 8. Station Design Requirement and Interference Protection. Section 21.902 sets technical station design requirements for MDS applicants. For example,  21.902(b)(3) requires each MDS applicant to engineer its station to provide at least 45 dB of interference protection within the protected service areas of all other authorized or previously proposed cochannel stations. 47 C.F.R.  21.902(b)(3). In order to demonstrate compliance with  21.902(b), and so that determinations could be made about mutual exclusivity, at the time these applications were 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) of the Commission's rules 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). 9. Location Restrictions. After the initial filing date of September 9, 1983, no filing period for MDS applications on the E or F channels was again designated until April 20, 1988. In accordance with  21.901(d)(4) of the Commission's rules, MDS applications for E or F channel stations could then be submitted for filing commencing April 20, 1988, but only for locations which were: (1) farther than 50 miles from any proposed location of an MDS application pending on April 19, 1988, or an existing authorized facility, and (2) farther than 15 miles from the boundary of a statistical area for which there was an MDS application pending as of April 19, 1988. 1988 Public Notice at 2661. The 1988 Public Notice also advised potential applicants that all applications had to comply with the specified location restrictions, that grants of waivers of the location requirements were not anticipated, and that applications failing to meet these location restrictions would be dismissed as unacceptable for filing. Id. at 2661-2662. III. DISCUSSION 10. Mutually Exclusivity, Cut-off and Interference Protection. Petitioner's primary argument on reconsideration is that its proposed stations at Mayaguez could not cause harmful interference to other authorized and proposed stations due to the "massive" terrain blockage in the region. Petitioner argues that because of this terrain blockage, the proposed stations could not be mutually exclusive with the authorized and previously proposed stations and could not be cut-off by the authorized and previously proposed stations. Petitioner's applications correctly identified most of the stations required to be studied; however, the interference studies submitted were deficient in several material respects. The interference studies included only one terrain profile per study, which is inadequate to demonstrate terrain blockage between the proposed stations at Mayaguez and the authorized or proposed stations within fifty miles. Thus, these interference studies could not legitimately illustrate the terrain blockage that they were purported to demonstrate. In addition, our independent engineering evaluation shows that the proposed stations at Mayaguez did have an unobstructed electrical path to the protected service areas of 1983 authorized stations WMH325 and WMI889 at Aguadilla, Puerto Rico, and was not, as petitioner claims, terrain blocked. Further, our engineering studies show that the proposed stations at Mayaguez did not provide 45 dB of cochannel interference protection to these stations as required by  21.902(b)(3), and would cause harmful electrical interference to these authorized stations. 11. It follows, then, that the Caribbean applications were mutually exclusive with and cut-off by these 1983 authorized stations. As discussed above at  5, MDS applications are presumed to be mutually exclusive with authorized and proposed cochannel stations within fifty miles of the proposed site, and with authorized and proposed adjacent channel stations within the radio horizon with an unobstructed electrical path, unless the applicants submit interference studies proving otherwise. Since the interference studies submitted by petitioner were inadequate, the Caribbean applications could rightfully be presumed to be mutually exclusive with and cut-off by the stations within 50 miles or the radio horizon with an unobstructed electrical path, pursuant to the MDS Allocation Order. Indeed, because our independent engineering evaluation shows that harmful electrical interference would be caused to the 1983 authorized stations by the grant of these applications, we know that the presumption need not be relied upon and that these applicants are, in fact, mutually exclusive with these 1983 stations and are, therefore, filed more than eight years past the cut-off date of September 9, 1983. 12. Location Restrictions. As discussed above at  9, after April 20, 1988, applicants were permitted to file for transmitter sites farther than 50 miles from any proposed location of an MDS application pending on April 19, 1988, or an existing authorized facility, among other restrictions. Caribbean filed within 50 miles of four 1983 authorized stations and two 1983 proposed stations, in violation of the restrictions of the 1988 Public Notice, and were, thus, properly returned as unacceptable for filing. 13. Waiver Request. Petitoner argues that the "unique terrain situation present in this area of Puerto Rico" justifies a waiver of the 50 mile location restrictions contained in the 1988 Public Notice because no harmful electrical interference could result from the grant of the applications. 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. The regulations allowing for the grant of a waiver are difficult to meet. "An applicant for waiver faces a high hurdle even at the starting gate. When an applicant seeks a waiver of a rule, it must plead with particularity the facts and circumstances which warrant such action.'" WAIT Radio v. FCC, 418 F.2d 1153, 1157 (D.C. Cir. 1969) (citing Rio Grande Family Radio Fellowship, Inc. v. FCC, 406 F.2d 664 (D.C. Cir. 1968) (per curiam); see also David Laustsen, 3 FCC Rcd 2053, 2054 (Comm. Car. Bur. 1988) ("[A] request for waiver . . . must affirmatively demonstrate that application of the rule would frustrate the underlying purposes of the rule.") Petitioner's sole basis for a waiver is the purported lack of harmful interference to other authorized or proposed stations. Since, as discussed above, the grant of the Caribbean applications would cause harmful interference to authorized stations, WMH325 and WMI889, the justification for waiver is lacking and the denial of the request for waiver was correct. 14. Finally, petitioner argues that the return notification letters fail to express the factual basis for the decisions and thus do not comply with the Administrative Procedures Act, citing Ace Motor Freight Inc. v. ICC, 557 F.2d 859, 864 (D.C. Cir. 1977) and National Motor Freight Traffic Ass'n v. ICC, 590 F.2d 1180, 1184 (D.C. Cir. 1978). We disagree. The return notification letters sent to petitioner indicated several reasons why the applications were unacceptable for filing and cited the relevant rule section or Commission action on which the staff's conclusion was based. Thus, we believe the reasons stated in the letters were sufficient for petitioner to understand the basis for the return of the applications. See Adams Telcom, Inc. v. FCC, 38 F.3d 576, 582 (D.C. Cir. 1994) (finding brief explanations of why applications were dismissed adequate because the explanations were sufficient for the parties and court to understand the basis for the decision); see also WAIT Radio, 418 F.2d at 1157 n.9 ("[T]he agency is not required to author an essay for the disposition of each application."). 15. Accordingly, IT IS ORDERED, that the above-referenced reconsideration petitions filed by Caribbean MMDS Partnership ARE HEREBY DENIED. 16. IT IS FURTHER ORDERED, that the staff of the Video Services Division shall send a copy of the decision to petitioner's authorized representative by certified mail, return receipt requested. FEDERAL COMMUNICATIONS COMMISSION Charles E. Dziedzic Assistant Chief, Video Services Division Mass Media Bureau