WPCB 2?BJ%<Courier3|j#Xw PE37}XP#Times New RomanTimes New Roman Bold P6G;XPPX@Times New RomanTimes New Roman BoldTimes New Roman Italic}XP#2@qK Z CourierCG Times"i~'^:DPddDDDdp4D48dddddddddd88pppX|pDL|pp||D8D\dDXdXdXDdd88d8ddddDL8ddddX`(`lD4l\DDD4DDDDDDDDd8XXXXXX|X|X|X|XD8D8D8D8ddddddddddXdbdddpdXXXXXlX~|X|X|X|XdddldldD8DdDDDdplld|8|P|D|D|8dvddddDDDpLpLpLpl|T|8|\ddddddl|X|X|Xd|DdpL|Dd~4ddC$CWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNHxxH\dDXddddd8@d<@d<DDXXdDDxddzHxxHvppDXd<"dxtldpxxdkd|H|8~ddddddddXXXd~ddkd~ddxCddCCCWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNdddCYQQddddddFddddFCChhd44ddzzdddvooChdF"dhd9dCCzCddoddCdYds]zUvdYYCCCCz~ozoY~NYdYC8YooYdYzsdzdd~YYzozzz~CdzYzzzzCCdddddddzCsdYC\   pxtll\tll@\@\`Lc406c3\lj_hp4si_2033M_600_2HPLAS4SI.PRSXj\  P6G;\PXP8wC;,}Xw PE37XP\ @^5q.$h';U7G;A 7ier<?xxx,>fx6X@`7X@2rrZKX'3|jHP LaserJet 4M (PCL) 600 on LPT1PT1HPLA4MPC.PRSXj\  P6G;\ DXP"i~'^09CSS999S]+9+/SSSSSSSSSS//]]]Ixnnxg]xx9?xgxx]xn]gxxxxg9/9MS9ISISI9SS//S/SSSS9?/SSxSSIP!PZ9+ZM999+99999999S/xIxIxIxIxIlnIgIgIgIgI9/9/9/9/xSxSxSxSxSxSxSxSxSxSxIxSxRxSxSxS]SxIxIxInInInZnIxigIgIgIgIxSxSxSxZxSxZxS9/9S999Su]ZZxSg/gCg9g9g/xSbxSxSxSxSxn9n9n9]?]?]?]ZgFg/gMxSxSxSxSxSxSxxZgIgIgIxSg9xS]?g9xSi+SS88WuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxN/>/>/>/x]SSSSx]x]x]x]xSxSx]SSxSxSf]xSxSxSxIxIxWxIx{nInInInISSSWS]a?/?]?9?]]WW]n/nKn9nCn/x]xx]x]SSxxIxIxI]?]?]?]WnUn9nax]x]x]x]x]x]xxWnInInIx]n9x]]?n9xSz+SS8-8WuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxN8HH"&H>XHH8HB8>HH^HH>"".2",2,2,"222N2222"&22H22,006"6."""""""""""2H,H,H,H,H,XAB,>,>,>,>,""""H2H2H2H2H2H2H2H2H2H2H,H2H1H2H2H282H,H,H,B,B,B6B,H?>,>,>,>,H2H2H2H6H2H6H2""2"""2F866H2>>(>">">H2;H2H2H2H2XHB"B"B"8&8&8&86>*>>.H2H2H2H2H2H2^HH6>,>,>,H2>"H28&>"H2?22!!WFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxN$<<$.2",2222`2 LL2 LL2L"",,2d""defective applications under paragraph (a), such as, the "application does not demonstrate  xcompliance with the special requirements applicable to the radio service involved," the  xK"application does not include all necessary exhibits," and the "application is filed after the cutoff  X- xdate prescribed in  21.31 or  21.914 of this part." 47 C.F.R.  21.20(b)(4), (8) and (9); see  Xk-47 C.F.R.  21.13, 21.15, 21.26 and 21.900.  X=-  |x5. Mutual Exclusivity. Typically, the first determination made by Commission staff is  xwhether an MDS application is mutually exclusive with any authorized station or previously filed  xapplication. Section 21.31(a) of the Commission's rules provides the following standard for this determination:      !XxThe 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   1electrical 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.(# ")',-(-(ZZ%"Ԍ X- x47 C.F.R.  21.31(a); see 47 C.F.R.  21.902(c), (d) and (f). In applying this standard, the staff  xevaluates whether the MDS applications were filed: (1) within 50 miles of an authorized or  X- xpreviously proposed MDS station,E6 ? yOM- xԍ MDS applicants must submit interference studies analyzing the potential for harmful cochannel interference  xwith other MDS stations located within a 50 mile radius of the proposed station because "[i]t is possible for co xYchannel interference generated by one MDS station to cause unacceptable distortion of another station's signal from  {O- x!as far away as 50 miles."  R.L. Mohr, 85 FCC 2d 596, 606 (1981); see 47 C.F.R. 21.901(d)(7) and  {Oo- x21.902(c)(1)(1991). The 50 mile benchmark for MDS stations was adopted in Amendments of Parts 1, 2, 21 and  x43 of the Commission's Rules and Regulations to Provide for Licensing and Regulation of Common Carrier Radio  {O - xStations in the Multipoint Distribution Service, 45 FCC 2d 616, 620621 (1974) (hereinafter MDS Allocation Order),  xwhich codified, as a rebuttable presumption, Commission policy as to what constitutes mutually exclusive status for  {O - xhMDS stations. See also Amendment of Parts 1 and 21 of the Commission's Rules and Regulations Applicable to the  {O] - xDomestic Public Radio Services (Other Than Maritime Mobile), 60 FCC 2d 549, 559 (1976) (hereinafter Domestic  {O' - xPublic Radio Services Order). The Commission adopted this 50 mile benchmark to enhance administrative efficiency  xin processing applications, avoid "gridlock" situations, and permit authorization of stations to proceed expeditiously.  {O -See Sioux Valley Empire Elec. Ass'n, Inc., 3 FCC Rcd 7375, 7376 (Dom. Fac. Div. 1988). E and (2) within the radio horizon, with an unobstructed  X- x\electrical path, to the protected servicep ? yO4-ԍ Section 21.902(d) defines the protected service area for MDS stations.p area of an authorized or previously proposed MDS  X- xstation.V ? yO- xԍ As the Commission noted in the MDS technical rulemaking order, "the mileage between these [MDS] stations  {Ou- xis not the only factor that determines whether interference will occur... ." Amendment of Parts 21, 74 and 94 of  xthe Commission's Rules and Regulations with regard to the technical requirements applicable to the Multipoint  {O- xDistribution Service, the Instructional Fixed Television Service and the Private OperationalFixed Microwave Service,  {O-98 FCC 2d 68, 90 (1984) (hereinafter MDS Technical Order).  Applications which are determined to be either within 50 miles, or with an unobstructed  x electrical path to any part of the protected service area, of any station are considered to be  xmutually exclusive with the station, unless the applicant demonstrates a lack of harmful  xinterference by submission of interference studies with its application pursuant to the standards  XJ- xzspecified in the Commission's rules. See 47 C.F.R. 21.902(b)(3) and (4) and text,  8, below.  X -  x6. Cutoff Date. In order to be acceptable for filing, MDS applications must be filed on  xor before the applicable cutoff date for mutually exclusive applications. The Commission  x>initially authorized the filing of MDS applications on the E or F channels on one filing date,  X - xSeptember 9, 1983. See Amendment of Parts 2, 21, 74 and 94 of the Commission's Rules and  xRegulations in Regard to Frequency Allocation to the Instructional Television Fixed Service, the  X- xKMultipoint Distribution Service, and the Private Operational Fixed Microwave Service, 94 FCC  X- x2d 1203, 126266 (1983); Establishment of MultiChannel Systems, 48 Fed. Reg. 33,873, as  Xl- xcorrected, 48 Fed. Reg. 34,746 (1983). Thereafter, no additional applications for new stations  xon the E or F channels were accepted for filing until April 20, 1988, pursuant to 47 C.F.R.   x21.901(d)(4). Applications for the E or F channels which complied with specified restrictions  X)-could be filed between April 20, 1988 and April 9, 1992.  See  9, below.    @x7. If an MMDS application for the E or F channels is mutually exclusive with a 1983" ,-(-(ZZ"  xauthorized station or application, the applicable cutoff date is the oneday filing date designated  X- x-for these applications, September 9, 1983. Establishment of MultiChannel Systems, 48 Fed. Reg.  X-33,873, as corrected, 48 Fed. Reg. 34,746.  X-  X-  x8. Station Design Requirement and Interference Protection. Section 21.902 sets technical  xstation design requirements for MDS applicants. For example,  21.902(b)(3) requires each MDS  xapplicant to engineer its station to provide at least 45 dB of interference protection within the  xprotected service areas of all other authorized or previously proposed cochannel stations. 47  XL- xC.F.R. 21.902(b)(3). In order to demonstrate compliance with  21.902(b), and so that  xdeterminations could be made about mutual exclusivity, at the time these applications were filed,  xl 21.902(c)(1) of the Commission's rules required that an MDS applicant include with the  x=application an analysis of the potential for harmful cochannel interference with any authorized  x0or previously proposed station, if the applicant's proposed transmitting antenna had an  xunobstructed electrical path to any part of the protected service area of any other authorized or  xpreviously proposed cochannel station, or if the applicant's proposed transmitter was within 50  xLmiles of the transmitter coordinates of any other authorized or previously proposed cochannel  x>station. 47 C.F.R.  21.902(c)(1)(1991). In addition, 21.902(c)(2) of the Commission's rules  x>required that an MDS applicant include with the application an analysis of the potential for  xharmful adjacent channel interference if the applicant's proposed transmitting antenna had an  xunobstructed electrical path to any part of the protected service area of any other authorized or  X8- xpreviously proposed adjacent channel station. 47 C.F.R.  21.902(c)(2)(1991); see 47 C.F.R.   X#-21.902(a), (b), (d) and (f).   X-  x9. Location Restrictions. After the initial filing date of September 9, 1983, no filing  xperiod for MDS applications on the E or F channels was again designated until April 20, 1988.  x{In accordance with  21.901(d)(4) of the Commission's rules, MDS applications for E or F  X- x>channel stations could then be submitted for filing commencing April 20, 1988, but only for  xlocations which were: (1) farther than 50 miles from any proposed location of an MDS  xapplication pending on April 19, 1988, or an existing authorized facility, and (2) farther than 15  xmiles from the boundary of a statistical area for which there was an MDS application pending  XV- x-as of April 19, 1988. 1988 Public Notice at 2661. The 1988 Public Notice also advised potential  xapplicants that all applications had to comply with the specified location restrictions, that grants  xof waivers of the location requirements were not anticipated, and that applications failing to meet  X-these location restrictions would be dismissed as unacceptable for filing. Id. at 26612662. &III. DISCUSSION TP  X!-x10. Mutually Exclusivity, Cutoff 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 cutoff by the authorized and previously proposed stations. Petitioner's applications correctly identified most of the stations required to be studied; however, the interference"/',-(-(ZZ%"  X-studies submitted were deficient in several material respects.? yOy- xԍ The applications failed to include interference studies for two 1983 previously proposed stations, Application  xJFile No. 15935CMP83, placed on public notice on October 20, 1986, and Application File No. 15934CMP83,  x,placed on public notice on December 15, 1986. In Exhibit E of the application, the applicant acknowledged a pool  xof "lottery loser" applications that were included in a Commission lottery but were not chosen as the tentative  xwselectee. Caribbean noted in its application that the lottery in which these "lottery loser" applications were included  xhad resulted in the grant of a license to the tentative selectee, WLW756, a station which ultimately was forfeited.  xCaribbean then asked that the lottery pool be dismissed, as is customary when the Commission grants a conditional  xlicense. On reconsideration, Caribbean reiterates this argument. Since we find that the Caribbean applications were  xproperly returned for reasons other than the failure to file interference studies for these pending applications, we need not reach this issue on reconsideration.  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  X_-Aguadilla, Puerto Rico,_` ? yOp- xԍ While station WMH325 was forfeited April 16, 1992, at the time these applications were filed the applicants were required to provide interference protection to these stations pursuant to 21.902(b). 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. x11. It follows, then, that the Caribbean applications were mutually exclusive with and cutoff 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 cutoff by the stations within 50 miles or the radio horizon with an  X4-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 cutoff date of September 9, 1983.  X-x12. 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"g ,-(-(ZZ"  X-other restrictions. Caribbean filed within 50 miles of four 1983 authorized stationsL? yOy- xԍ In addition to the two authorized 1983 stations discussed in 10 above, the Caribbean applicants filed within  x50 miles of WMH292, Application File No. 3505CMP83 and WMI815, Application File No. 15609CMP83.  xWhile both these stations were subsequently forfeited, on March 16, 1992 and October 16, 1992, respectively, at the  xtime the Caribbean applicants filed, these stations were authorized, thereby subjecting the applicants to the 50 mile location restrictions. L and two  X-1983 proposed stations,x? yO- xԍ Application File No. 15935CMP83, placed on public notice on October 20, 1986 and Application File No. 15934CMP83, placed on public notice on December 15, 1986. in violation of the restrictions of the 1988 Public Notice, and were, thus, properly returned as unacceptable for filing.  X- x 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  Xx-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:   Xx(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(# Xx(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  X -warrant such action.'" WAIT Radio v. FCC, 418 F.2d 1153, 1157 (D.C. Cir. 1969) (citing Rio  X-Grande Family Radio Fellowship, Inc. v. FCC, 406 F.2d 664 (D.C. Cir. 1968) (per curiam);  X-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. x14. 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  X-Act, citing Ace Motor Freight Inc. v. ICC, 557 F.2d 859, 864 (D.C. Cir. 1977) and National",-(-(ZZ"  X-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  X-were sufficient for petitioner to understand the basis for the return of the applications. See  X-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  Xe-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."). x15. Accordingly, IT IS ORDERED, that the abovereferenced reconsideration petitions filed by Caribbean MMDS Partnership ARE HEREBY DENIED. x16. 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.    x` `  hhFEDERAL COMMUNICATIONS COMMISSION x` `  hhCharles E. Dziedzic x` `  hhAssistant Chief, Video Services Division x` `  hhMass Media Bureau