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If you need the complete document, download the WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Before the Federal Communications Commission Washington, D.C. 20554 In re Application of ) ) ) McDougald Broadcasting Corporation ) ) For Authority to Construct and Operate a ) File No. 60087-CM-P-91 Multipoint Distribution Service Station on ) the F Channel Group for Rome, Georgia ) MEMORANDUM OPINION AND ORDER Adopted: June 30, 1997 Released: July 1, 1997 By the Commission: 1. The Commission has before it an Application for Review filed by McDougald Broadcasting Corporation (McDougald), seeking review of a Video Services Division ruling of June 6, 1996 (DA-96-897). That ruling denied a petition for reconsideration of the return, pursuant to delegated authority, of an application for authority to construct and operate a Multichannel Multipoint Distribution Service (MMDS) station at Rome, Georgia. I. BACKGROUND 2. On September 9, 1983, McDougald filed an application, File No. 7859-CM-P-83, for an MMDS station on the E channel group at Rome, Georgia. On August 19, 1987, McDougald amended that application and changed the requested frequencies to the F channel group. The Commission granted that application on June 25, 1990. McDougald failed to construct the facility and on June 21, 1991, submitted its license for cancellation. The license was automatically forfeited, upon the expiration of the construction period, on June 25, 1991, pursuant to Section 21.44 of the Commission's Rules, 47 C.F.R.  21.44. On June 24, 1991, McDougald submitted a new application for authority to construct an MMDS station on the F channel group at Rome, Georgia, File No. 60087-CM-P-91. This application was returned as unacceptable for filing on June 26, 1992. On July 24, 1992, McDougald filed a petition for reconsideration of the return of the 1991 application. On May 8, 1996, McDougald submitted a letter supplementing its petition for reconsideration. After de novo review on reconsideration, the staff concluded that the return of the McDougald application was proper and consistent with Commission precedent. On July 8, 1996, McDougald filed an application for review of the Division ruling. On April 25, 1997, McDougald filed a supplement to its application for review. II. DISCUSSION 3. McDougald's 1991 application was returned as unacceptable for filing because it failed to include interference studies for eleven applications that had been filed in 1983 and were still pending in 1991. See 47 C.F.R.  21.902(c). In addition, McDougald failed to serve all affected parties pursuant to 47 C.F.R.  21.902(g). In its application for review, McDougald contends that the 1991 application was for "the exact facilities previously authorized . . . and in the very same applications environment, that is, where all applications pending when [the] . . . application was filed were also pending when the [1983] . . . license was granted" (emphasis in original). Consequently, McDougald argues, all interference issues were resolved prior to the grant of the 1983 application, rendering interference studies unnecessary for the 1991 application. McDougald also argues that, even if interference studies were required for stations entitled to interference protection, there were no previously authorized stations entitled to interference protection. McDougald argues that its situation is unique and that grant of the application would serve the public interest. McDougald, in its April 25, 1997, supplement, states that it could reduce power to eliminate the potential for harmful interference. 4. Applications for Forfeited or Cancelled 1983 Transmitter Sites. McDougald contends that, as the applicant for the exact facilities as a cancelled 1983 station, it was not obligated to provide interference analysis because all interference problems had been resolved prior to the grant of the 1983 application. Although McDougald also believes that the issue of interference studies for stations in this circumstance "has not been previously considered," the Commission has expressly held that applicants for cancelled 1983 transmitter sites "must be required to show that their [new] proposed transmitter site would not cause harmful interference to other previously authorized or proposed stations and otherwise meet the requirements for waiver." Hinton Telephone Company, 10 FCC Rcd 11625, 11638 (1995), aff'd sub nom. Knollwood, Ltd. v. FCC, No. 95-1397 (D.C. Cir., April 29, 1996). The factual situation in Hinton is nearly identical to that presented here. In Hinton, the Commission considered an application filed less than two months after an affiliated entity had submitted its 1983 authorization for cancellation. In that case we stated that the "requirements [for filing a new application] are the same for all applicants, regardless of whether or not they have previously cancelled a license for the market for which they are applying." Id. at 11637. The Commission had repeatedly stressed the importance of interference protection, stating that we "expect applicants to address this [interference] 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 Microwave Service, 94 FCC 2d 1203, 1264 (1983) (MMDS Allocation Order). See also  21.902(b) and (c). In view of these concerns with the potential for harmful interference, there has been a series of cases emphasizing the importance of interference protection showings in MDS applications for the E or F channels. Thus it is clear that, "the filing of an interference analysis, which demonstrates lack of harmful interference, is considered a basic requirement in determining the acceptability of an application." 267 Applications for Authority to Construct and Operate Multipoint Distribution Service Stations at Three Transmitter Sites, 10 FCC Rcd 11654, 11664 (1995) (citing Family Entertainment Network, Inc., 9 FCC 566, 567 (Dom. Fac. Div. 1994)). 5. McDougald was absolutely required, under the then applicable rules, to provide all interference studies necessary for the processing of its application at the time the application was filed. 47 C.F.R.  21.15(a), 21.20(a)(1) and 21.902(c). See also Hinton at 11628. McDougald could have constructed the facilities as originally authorized. However, McDougald chose not to do so. Rather, McDougald chose to file a new application and was required therefore to submit interference studies demonstrating that stations proposed or authorized prior to June 24, 1991, were protected from harmful interference. 47 C.F.R.  21.902(c). Significantly, all 1983 applications were filed on the same day and were granted a waiver of the interference study requirements of 47 C.F.R.  21.902(c). MMDS Allocation Order at 1265. The Commission, upon considering the unique circumstances of "the first group of applicants for the reallocated channels," decided to grant 1983 applications notwithstanding possible interference problems; therefore, the grant of a 1983 application did not require a finding that all interference problems had been resolved. Id. McDougald surrendered its special status as a 1983 applicant when it submitted its authorization for cancellation and filed a new application. Indeed, the Commission specifically addressed the potential for this circumstance in 1983 when it observed that, "[i]f we subsequently decide to accept a second group of applications for these channels . . . such applications must contain the interference analysis required by Section 21.902(c)(1)." Id. 6. Stations Entitled to Interference Protection from McDougald. McDougald was required to file interference studies for any authorized or previously proposed co-channel station if its proposed transmitting antenna had an unobstructed electrical path to any part of the protected service area of any station, or if its 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). McDougald was also required to file interference studies for any adjacent channel stations if its proposed transmitting antenna had an unobstructed electrical path to any part of the protected service area of that station. 47 C.F.R.  21.902(c)(2). As we have previously indicated, McDougald failed to file interference studies for eleven applications that had been filed in 1983 and were still pending in 1991. With respect to one of these applications, McDougald argues that it was not required to study the adjacent channel station at Rome, Georgia, authorized to Multichannel Distribution of America (MDA), File No. 690-CM-P-83, call sign WMI338, because the MDA station was to be collocated with McDougald's station. However, WMI338 did not obtain Commission approval to modify its location to the proposed McDougald site until 1996. Therefore, that station should have been studied pursuant to 47 C.F.R.  21.902(c). The fact that McDougald believed collocation was possible or necessary did not relieve it from its responsibility to conduct a full analysis of the MDA proposal. While MDA had the option to apply for modifications to its facilities, it did not do so until 1996, and therefore was due interference protection from subsequently proposed stations, such as McDougald's 1991 application. Even if McDougald had filed all required interference studies, subsequent staff review has revealed that its application would have been properly returned because it would have caused harmful interference to WMI338. 7. Similarly, McDougald argues that the previously proposed, subsequently authorized cochannel station at Gadsden, Alabama, filed by Multichannel Media, Inc., File No. 9936-CM-P- 83, call sign WMH404, "should not be considered an obstacle" because it was forfeited less than two months after the 1991 application was filed. However, McDougald's application was obligated to comply with all the requirements at the time it was filed, including the submission of an interference study for WMH404 pursuant to  21.902(b) and (c). That subsequent Commission action may have eliminated some or all of the applications is irrelevant. The McDougald application was properly evaluated by the staff at the time it was filed. Obviously, a departure, in these circumstances, from the requirement that applications include all required interference analyses at the time of filing could "tempt applicants to expedite, delay or otherwise interfere with the orderly conduct of our business, in an effort to obtain action at some moment they deem advantageous to their interests. Disruption of this nature is clearly contrary to the public interest." Wireless Cable Television Partnership #1006, 10 FCC Rcd 11286, 11287-88 (1995) (citing Roundtree Communications, 7 FCC Rcd 5456 (1992)). Finally, McDougald claims that a previously proposed cochannel station at Atlanta, Georgia, filed by Greene Communications, File No. 5138-CM-P-83, had been dismissed "sometime in early 1987." However, the Greene application remained pending until August 3, 1992. McDougald was therefore required to include an interference analysis for that proposed station, as well as the other eight 1983 applications, with its 1991 application. 47 C.F.R.  21.902(c). 8. In its April 25, 1997 supplement, McDougald states that it could reduce the output power from its proposed station to allow it "to coexist without interference" with station WMI338. However, our independent engineering analysis indicates that such a reduction in power would not eliminate the potential for harmful interference to WMI338 or to the protected service area of station WMI898 at Chatanooga, Tennessee, or the protected service area in the proposed modification application of station WHT664 at Atlanta, Georgia. Moreover, this suggestion to reduce power does not alter the fact that the application was unacceptable as filed and was therefore properly returned. 47 C.F.R.  21.902(b) and (c). The supplement raises no new arguments regarding the legal issues that were the basis for the return of the application. 9. McDougald contends that it contacted Commission staff after the return of its application and was told that the basis for its return was the failure to consider Greene's application. McDougald then claims it was unable to locate that application in the Commission's files. In Hinton, we stated: [The petitioners] claim that they contacted Commission staff after the return of their applications to learn the deficiencies in their returned applications. As these alleged conversations with Commission staff took place after the applications were returned, there could not have been any detrimental reliance on staff statements by the applicants when they submitted their applications. The alleged discussions thus are irrelevant to our analysis of the applications, which were unacceptable when submitted. 10 FCC Rcd at 11638. Similarly, McDougald's alleged conversations with Commission staff would have been irrelevant to the return of its application. Moreover, we note that we have "specifically held that parties who rely on staff advice or interpretations do so at their own risk." Id. at 11637. More importantly, the FCC Application Return Notification letter did not state that McDougald's application was dismissed because it failed to consider the single Greene application; rather, the letter stated that McDougald failed to consider and serve "all" previously proposed or authorized ITFS or MMDS stations. If a staff member attempted to clarify the reasons for the dismissal of McDougald's application and cited only one of the previously filed station applications for which McDougald failed to submit an interference analysis, this does not alter the fact that McDougald's application was deficient and unacceptable for filing for failing to include interference analyses for numerous other previously proposed or authorized MMDS station applications. III. CONCLUSION 10. In view of all the foregoing considerations, we affirm the staff's return of the McDougald Broadcasting Corporation application under consideration in this order. Reinstatement of the application is not warranted. 11. Accordingly, IT IS ORDERED, That the application for review filed by McDougald Broadcasting Corporation IS DENIED. 12. IT IS FURTHER ORDERED, That the staff of the Mass Media Bureau shall send a copy of the decision to the authorized representative for the petitioner by certified mail, return receipt requested. FEDERAL COMMUNICATIONS COMMISSION William F. Caton Acting Secretary