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A. a.(1)(a) i) a)DocumentgPleadingHeader for Numbered Pleading PaperE!n    X X` hp x (#%'0*,.8135@8:/>/>/>/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""filing on June 26, 1992.xJ!g yO#- xԍ Section 21.20(a) of the rules sets forth the standards for returning Multipoint Distribution Service (MDS) applications as unacceptable for filing:   XxUnless 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: (#   ?Xx(1) The application is defective with respect to completeness of answers to questions, informational showings, execution, or other matters of a formal character; or (#"s(,))("Ԍ  Xx(2) The application does not substantially comply with the Commission's rules, regulations, specific requests for additional information, or other requirements. 47C.F.R.  21.20(a).(#ƈ On July 24, 1992, McDougald filed a petition for reconsideration of"J! ,))ZZ: "  xPthe return of the 1991 application. On May 8, 1996, McDougald submitted a letter  X- xKsupplementing its petition for reconsideration. After de novo review on reconsideration, the staff  xlconcluded that the return of the McDougald application was proper and consistent with  xCommission 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   x3. McDougald's 1991 application was returned as unacceptable for filing because it failed  xLto include interference studies for eleven applications that had been filed in 1983 and were still  X - x.pending in 1991. See 47 C.F.R. 21.902(c). In addition, McDougald failed to serve all affected  xparties pursuant to 47 C.F.R. 21.902(g). In its application for review, McDougald contends  X - xthat the 1991 application was for "the exact facilities previously authorized . . . and in the very  xsame applications environment, that is, where all applications pending when [the] . . . application  xzwas filed were also pending when the [1983] . . . license was granted" (emphasis in original).  xConsequently, McDougald argues, all interference issues were resolved prior to the grant of the  x1983 application, rendering interference studies unnecessary for the 1991 application. McDougald  xalso argues that, even if interference studies were required for stations entitled to interference  x>protection, there were no previously authorized stations entitled to interference protection.  xMcDougald argues that its situation is unique and that grant of the application would serve the  xpublic interest. McDougald, in its April 25, 1997, supplement, states that it could reduce power to eliminate the potential for harmful interference.  X-  lx4. Applications for Forfeited or Cancelled 1983 Transmitter Sites. McDougald contends  xthat, as the applicant for the exact facilities as a cancelled 1983 station, it was not obligated to  xprovide interference analysis because all interference problems had been resolved prior to the  X- xgrant of the 1983 application. m yO- xiԍ As explained in  6 below, McDougald's proposed station would have caused harmful interference to at least one previously proposed station. Although McDougald also believes that the issue of interference  xstudies for stations in this circumstance "has not been previously considered," the Commission  xhas expressly held that applicants for cancelled 1983 transmitter sites "must be required to show  xthat their [new] proposed transmitter site would not cause harmful interference to other previously  XR- xauthorized or proposed stations and otherwise meet the requirements for waiver." Hinton  X=- x=Telephone Company, 10 FCC Rcd 11625, 11638 (1995), aff'd sub nom. Knollwood, Ltd. v. FCC,  X(- xNo. 95-1397 (D.C. Cir., April 29, 1996). The factual situation in Hinton is nearly identical to  X- xthat presented here. In Hinton, the Commission considered an application filed less than two  xmonths after an affiliated entity had submitted its 1983 authorization for cancellation. In that  x-case we stated that the "requirements [for filing a new application] are the same for all applicants,  xregardless of whether or not they have previously cancelled a license for the market for which  X!- xthey are applying." Id. at 11637. The Commission had repeatedly stressed the importance of"!x,-(-(ZZ "  xinterference protection, stating that we "expect applicants to address this [interference] problem  xin their applications. Those applications that do not contain an analysis of how the applicant  x[intends to avoid cochannel interference in adjacent areas will not be considered acceptable for  X- xfiling." Amendment of Parts 2, 21, 74 and 94 of the Commission's Rules and Regulations in  X- xiregard to frequency allocation to the Instructional Television Fixed Microwave Service, 94 FCC  X- x2d 1203, 1264 (1983) (MMDS Allocation Order). See also 21.902(b) and (c). In view of  xthese concerns with the potential for harmful interference, there has been a series of cases  x[emphasizing the importance of interference protection showings in MDS applications for the E  XN- xyor F channels.Nm {O - xiԍ See, e.g., CNI Wireless, Inc., 9 FCC Rcd 2039, 2040 (Dom. Fac. Div. 1994) ("Section 21.902(c)(2) requires  xithat an applicant initially file with the application an analysis of the potential for harmful interference with any  xiauthorized or previously proposed adjacent channel stations within the radio horizon of the applicant's proposed  xxtransmitting antenna. . . . [B]ased upon CNI's failure to comply with Section 21.902, the Division's finding, that  {O - xCNI's application was defective and unacceptable for filing, was proper."); G.C. Cooper, 8 FCC Rcd 7007, 7008 n.9  xi(Dom. Fac. Div. 1993) ("[T]he standard for evaluating applications under Part 21 of the rules is not substantial  xcompleteness,' but rather acceptability for filing. . . .' Cooper's application was properly returned as unacceptable  {OC- xfor filing . . . for failure to include the technical showing required. . . . "), Marylan J. Benson, 7 FCC Rcd 4668  xh(Dom. Fac. Div. 1992) ("[T]hose applications that do not contain an analysis of how the applicant intends to avoid  xwcochannel interference in adjacent areas will not be considered acceptable. . . . This interference protection showing is a significant requirement . . . "). Thus it is clear that, "the filing of an interference analysis, which demonstrates  xlack of harmful interference, is considered a basic requirement in determining the acceptability  X - xof an application." 267 Applications for Authority to Construct and Operate Multipoint  X - xDistribution Service Stations at Three Transmitter Sites, 10FCC Rcd 11654, 11664 (1995) (citing  X -Family Entertainment Network, Inc., 9 FCC 566, 567 (Dom. Fac. Div. 1994)).   x5. McDougald was absolutely required, under the then applicable rules, to provide all  xZinterference studies necessary for the processing of its application at the time the application was  X- xfiled. 47 C.F.R. 21.15(a), 21.20(a)(1) and 21.902(c). See also Hinton at 11628. McDougald  xycould have constructed the facilities as originally authorized. However, McDougald chose not  x/to do so. Rather, McDougald chose to file a new application and was required therefore to  xsubmit interference studies demonstrating that stations proposed or authorized prior to June 24,  x>1991, were protected from harmful interference. 47 C.F.R. 21.902(c). Significantly, all 1983  X+- xkapplications were filed on the same day and were granted a waiver of the interference study  X- xrequirements of 47 C.F.R. 21.902(c). MMDS Allocation Order at 1265. The Commission,  xyupon considering the unique circumstances of "the first group of applicants for the reallocated  xychannels," decided to grant 1983 applications notwithstanding possible interference problems;  xjtherefore, the grant of a 1983 application did not require a finding that all interference problems  X- xhad been resolved. Id. McDougald surrendered its special status as a 1983 applicant when it  X- xsubmitted its authorization for cancellation and filed a new application. Indeed, the Commission  xspecifically addressed the potential for this circumstance in 1983 when it observed that, "[i]f we  xsubsequently decide to accept a second group of applications for these channels . . . such  X`-applications must contain the interference analysis required by Section 21.902(c)(1)." Id. "K. ,-(-(ZZ]"Ԍ X-  _x6. Stations Entitled to Interference Protection from McDougald. McDougald was  x-required to file interference studies for any authorized or previously proposed co-channel station  xif its proposed transmitting antenna had an unobstructed electrical path to any part of the  xprotected service area of any station, or if its proposed transmitter was within 50 miles of the  xtransmitter coordinates of any other authorized or previously proposed cochannel station. 47  xC.F.R.  21.902(c)(1). McDougald was also required to file interference studies for any adjacent  xchannel stations if its proposed transmitting antenna had an unobstructed electrical path to any  xpart of the protected service area of that station. 47 C.F.R.  21.902(c)(2). As we have  xpreviously indicated, McDougald failed to file interference studies for eleven applications that had  X1- xbeen filed in 1983 and were still pending in 1991.Q1m yO - xԍ Two applications for Rome, Georgia, WMI338, Application File No. 690-CM-P-83 and Application File No.  x<16611-CM-P-83; four applications for Gadsden, Alabama, WMH404, Application File No. 9936-CM-P-83, and  xApplication File Nos. 2145-CM-P-83, 10562-CM-P-83, and 13752-CM-P-83; one application for Atlanta, Georgia,  xApplication File No. 5138-CM-P-83; and fourapplications for Chattanooga, Tennessee, Application File Nos. 5409-CM-P-83, 6409-CM-P-83, 9789-CM-P-83, and 15447-CM-P-83.Q With respect to one of these applications,  xMcDougald argues that it was not required to study the adjacent channel station at Rome,  xGeorgia, authorized to Multichannel Distribution of America (MDA), File No. 690CMP83, call  xsign WMI338, because the MDA station was to be collocated with McDougald's station.  x[However, WMI338 did not obtain Commission approval to modify its location to the proposed  xMcDougald site until 1996. Therefore, that station should have been studied pursuant to 47  xC.F.R. 21.902(c). The fact that McDougald believed collocation was possible or necessary did  x-not relieve it from its responsibility to conduct a full analysis of the MDA proposal. While MDA  xhad the option to apply for modifications to its facilities, it did not do so until 1996, and therefore  xxwas due interference protection from subsequently proposed stations, such as McDougald's 1991  xapplication. Even if McDougald had filed all required interference studies, subsequent staff  xireview has revealed that its application would have been properly returned because it would have caused harmful interference to WMI338.   ?x7. Similarly, McDougald argues that the previously proposed, subsequently authorized  xcochannel station at Gadsden, Alabama, filed by Multichannel Media, Inc., File No. 9936CMP x-83, call sign WMH404, "should not be considered an obstacle" because it was forfeited less than  xtwo months after the 1991 application was filed. However, McDougald's application was  xobligated to comply with all the requirements at the time it was filed, including the submission  xof an interference study for WMH404 pursuant to 21.902(b) and (c). That subsequent  x{Commission action may have eliminated some or all of the applications is irrelevant. The  xyMcDougald application was properly evaluated by the staff at the time it was filed. Obviously,  x=a departure, in these circumstances, from the requirement that applications include all required  xinterference analyses at the time of filing could "tempt applicants to expedite, delay or otherwise  xinterfere with the orderly conduct of our business, in an effort to obtain action at some moment  xthey deem advantageous to their interests. Disruption of this nature is clearly contrary to the  X- xpublic interest." Wireless Cable Television Partnership #1006, 10 FCC Rcd 11286, 1128788  X - x(1995) (citing Roundtree Communications, 7 FCC Rcd 5456 (1992)). Finally, McDougald claims  xAthat a previously proposed cochannel station at Atlanta, Georgia, filed by Greene"!x,-(-(ZZ "  xCommunications, File No. 5138CMP83, had been dismissed "sometime in early 1987."  xHowever, the Greene application remained pending until August 3, 1992. McDougald was  xtherefore required to include an interference analysis for that proposed station, as well as the  X-other eight 1983 applications, with its 1991 application. 47 C.F.R. 21.902(c).m yO4- xԍ In addition to submitting the interference analyses to the Commission, McDougald was also obligated to serve those studies on all eleven applicants and it failed to do so. 47 C.F.R. 21.902(g).   |x8. In its April 25, 1997 supplement, McDougald states that it could reduce the output  x]power from its proposed station to allow it "to coexist without interference" with station  xWMI338. However, our independent engineering analysis indicates that such a reduction in  xypower would not eliminate the potential for harmful interference to WMI338 or to the protected  xjservice area of station WMI898 at Chatanooga, Tennessee, or the protected service area in the  X - xMproposed modification application of station WHT664 at Atlanta, Georgia. m yO - xxԍ Analysis of the potential for harmful interference to WMI898 at Chatanooga, Tennessee, and WHT664 at  yO- xAtlanta, Georgia, is based on the current 35 mile protected service area (PSA) provided by 47 C.F.R. 21.902(b).  xMcDougald maintains that it only had to protect the 15 mile PSAs "protected by the Commission's rules in force  xin 1991 when the McDougald application was refiled . . . ." That would only have been the case if McDougald's application had been returned in error. However, McDougald's application was properly returned as described above. Moreover, this  xsuggestion to reduce power does not alter the fact that the application was unacceptable as filed  xand 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.  X -  Px9.  McDougald contends that it contacted Commission staff after the return of its  x?application and was told that the basis for its return was the failure to consider Greene's  xapplication. McDougald then claims it was unable to locate that application in the Commission's  Xb-files. In Hinton, we stated:  o  [The petitioners] claim that they contacted Commission staff after the return of  ntheir applications to learn the deficiencies in their returned applications. As these  Balleged conversations with Commission staff took place after the applications  were returned, there could not have been any detrimental reliance on staff  nstatements by the applicants when they submitted their applications. The alleged  3discussions 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  X9-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",-(-(ZZ" 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 x10. 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. x11. Accordingly, IT IS ORDERED, That the application for review filed by McDougald Broadcasting Corporation IS DENIED. x12. 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. x` `  hhFEDERAL COMMUNICATIONS COMMISSION x` `  hhWilliam F. Caton x` `  hhActing Secretary