WPC6K 2?BJZECourier3|j#Xw PE37}XP#c406c3\lj_hp4si_2033M_600_2HPLAS4SI.PRSx  @\#I^X@ Y-#Xw PE37}XP#2@qf X CourierCG Times",tB^ f ^;C]ddCCCdCCCCddddddddddCCY~~vCN~sk~CCCddCYdYdYCdd88d8ddddJN8ddddYYdYd4dddddCddddddddd8YYYYYY~Y~Y~Y~YC8C8C8C8ddddddddddYdddddsdXdXXXddx|X~d~d|XdddddddC8ddddCdoddd|8|H~d<|8dtddddHHdlLlLlLkd|H|8~ddddddddXXXd~ddkd~ddxCddCCCWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNdddCYQQddddddFddddFCChhd44ddzzdddvooChdF"dhd9dCCzCddoddCdYds]zUvdYYCCCCz~ozoY~NYdYC8YooYdYzsdzdd~YYzozzz~CdzYzzzzCCdddddddzCsdYC\   pxtll\tll@\@\`L<?xxx,x6X@`7X@8wC;,}Xw PE37XP\ @^5q.$h';U7G;A 7ier<?xxx,x6X@`7X@2lrK ZE'3|j"i~'^:DPddDDDdp4D48dddddddddd88pppX|pDL|pp||D8D\dDXdXdXDdd88d8ddddDL8ddddX`(`lD4l\DDD4DDDDDDDDd8XXXXXX|X|X|X|XD8D8D8D8ddddddddddXdbdddpdXXXXXlX~|X|X|X|XdddldldD8DdDDDdplld|8|P|D|D|8dvddddDDDpLpLpLpl|T|8|\ddddddl|X|X|Xd|DdpL|Dd~4ddC$CWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNHxxH\dDXddddd8@d<@d<DDXXdDDxddzHxxHvppDXd<"dxtldpxxdc406c3\lj_hp4si_2033M_600_2HPLAS4SI.PRSXj\  P6G;\#I^XPTimes New RomanCG TimesTimes New Roman BoldTimes New Roman Italic2a#Kf OK!"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""X[W]e reject FEN's claim that its applications should be granted because the level of interference . . . is de  {O- minimis. Section 21.902(b)(3) requires that an applicant demonstrate 45 dB of cochannel interference  >protection. In this rule provision, no reference is made to qualifying terms, degrees or levels, other than 45 dB at which interference would be deemed acceptable. (#  yO - 47 C.F.R.  21.902(b)(3)(4). MMDS applicants are required to demonstrate these protections in interference studies submitted with their applications.  5. At the time the Clayton application was filed, in order to demonstrate compliance with   Section 21.902(b), applicants were required to 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. 47C.F.R.21.902(c)(1)(1991).   LIn addition, Section 21.902(c)(2) required that an MMDS 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.  X-  21.902(c)(2)(1991). The applicant was also required to show what steps were taken to comply   [with Section21.902(a), which required MMDS applicants, licensees, and conditional licensees,   to make exceptional efforts to avoid harmful interference to other users and to avoid blocking  Xk-  potential adjacent channel stations in the same area and cochannel stations in nearby areas. 47 C.F.R. 21.902(a)(1991). "= ,-(-(ZZ{"Ԍ ]6. These interference showings are a significant requirement which the Commission has   \repeatedly emphasized. The Commission, in reallocating the E and F channels from ITFS to   MMDS, did so with the understanding that certain adjacent channel interference problems might   arise. The Commission also anticipated that some authorized cochannel stations would be spaced  X-  more closely than ordinarily allowed and require careful planning and engineering. See   yAmendment 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  Xa-  Service and the Private Operational Fixed Microwave Service, 94 FCC 2d 1203, 1264 (1983)  XL-  ("MMDS Allocation Order"). Thus, the Commission stressed "we expect applicants to address   this 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  X -  acceptable for filing." MMDS Allocation Order, 94 FCC 2d at 1264; see also 47 C.F.R.  X -  21.902(b)(c). There has been a series of cases emphasizing the importance of interference  X -  {protection showings in MMDS applications for the E or F channels. f {OV-  ԍ See, e.g., New Channels Communications, Inc., 57 RR 2d 1600, 1602 (1985) ("In our view, an MDS   Japplication which does not contain the important and essential technical showing required by  21.902(c) cannot be   characterized as complete, or in substantial compliance with the Commission's rules and regulations, as required by  {O-  the criteria for acceptability outlined in rule  21.20(a)."); CNI Wireless, Inc., 9 FCC Rcd 2039, 2040 (Dom. Fac.    Div. 1994) ("Section 21.902(c)(2) requires that an applicant initially file with the application analysis of the potential   for harmful interference with any authorized or previously proposed adjacent channel stations within the radio   horizon of the applicant's proposed transmitting antenna . . . . [B]ased upon CNI's failure to comply with Section  {O-  ,21.902, the Division's finding, that CNI's application was defective and unacceptable for filing, was proper.");  G.C.  {O-  Cooper, 8 FCC Rcd 7007, n. 9 (Dom. Fac. Div. 1993) ("[T]he standard for evaluating applications under Part 21   of the rules is not substantial completeness' but rather acceptability for filing'. . . . Cooper's application was  yO.-  properly returned as unacceptable for filing . . . for failure to include the technical showing required . . . . ");  {O-  ,Marylan J. Benson, 7 FCC Rcd 4668 (Dom. Fac. Div. 1992) ("[T]hose applications that do not contain an analysis   xof how the applicant intends to avoid cochannel interference in adjacent areas will not be considered acceptable . . . . This interference protection showing is a significant requirement . . . .").  "[T]he filing of an   interference analysis, which demonstrates lack of harmful interference, is considered a basic  X -  requirement in determining the acceptability of an application." Family Entertainment, 9 FCC  X-Rcd at 567.  Xl-  7. In a de novo review, on reconsideration, we have determined that the Clayton   application was properly returned for failure to comply with our interference protection   Nrequirements, set forth at Section 21.902(c), by failing to demonstrate the lack of harmful   interference to authorized and previously proposed stations required to be studied. Specifically,  X-  OWTC failed to file interference studies for: (1) two 1983 subsequently authorized MMDS  X-  stations;  f yO6#-  [ԍ WMI834 at Durant, Oklahoma, Application File No. 00475CMP83, and WMH376 at Broken Bow,   iOklahoma, Application File No. 02503CMP83. While WMI834 was subsequently forfeited on September 24,   1993, at the time the Clayton application was filed, OWTC was required by 21.902 to include interference analyses for this station as well as for WMH376. (2) seven 1983 previously proposed MMDS stations which had applications pending"r ,-(-(ZZU"  X-  ^on February 10, 1992, the filing date of the Clayton application;; Xf yOy-  ԍ Application File Nos. 14526CMP83, for Clayton, Oklahoma; 592CMP83 for Little Rock, Arkansas; 547  YCMP83, for Hugo, Oklahoma; 2364CMP83, for Fort Smith, Arkansas; and 654CMP83, 9146CMP83, and 16581CMP83, for Paris, Texas. ; and (3) 48 post1983   Lpreviously proposed MMDS stations which had applications pending on the filing date of the  X-  Clayton application. f yOk-  Jԍ These include, but are not limited to, Application File Nos. 57272CMP91, for Kenefic, Oklahoma; 51849CMP91 for Paris, Texas; and 55243CMP91 for Henryetta, Oklahoma. In addition, our independent engineering review has revealed that the   interference study submitted by OWTC for WMH684, Application File No. 2528CMP83, for   .Canadian Valley, Oklahoma, was inadequate because it did not include free space calculations   for the desired to undesired signal ratio to each reference receiving antenna within the protected service area of the subsequently authorized station as required by 47 C.F.R. 21.902(f).  28. On reconsideration, petitioner contends that aside from the cochannel station,  X1-  WMH684, and a Hugo, Oklahoma adjacent channel application,K 1@f yO"-ԍ Application File No. 547CMP83.K there were no previously   proposed or authorized stations requiring interference analyses. Regarding WMH684, petitioner   primarily asserts that WMH684 had consented to any potential interference received from   \petitioner. In addition, petitioner states that the interference study performed for WMH684  X -  demonstrated that interference would be at most de minimis. As for the adjacent channel Hugo   applicant, petitioner's engineer states that it did not need to be studied since it was not within OWTC's lineofsight.  09. With respect to petitioner's failure to file required interference analyses, we note that   =even apart from any failure of petitioner to file adequate interference studies for WMH684 and   the Hugo applicant, OWTC failed to file analyses for authorized or previously proposed stations  X6-  which had appeared on prior public notice.t\6f {O-  ԍ Copies of the Commission's public notices are available to the public at the time of issuance. See 47 C.F.R.   - 0.422, 0.443. In addition, previously released notices are available for public inspection at the Commission's  {OI-Press and News Media Division. Id.t For example, OWTC failed to file an interference   study for the pending previously proposed MMDS station, Application File No. 14526CMP83,   for Clayton, Oklahoma, which was placed on public notice on May 1, 1990, well over a year and   a half prior to petitioner's filing date. Petitioner does not identify what resources were utilized   in its search of MMDS stations and applications. However, had OWTC examined publicly   available information, it would have discovered the authorized and proposed stations noted in 7,  X-  ysupra. Thus, given petitioner's failure to file interference studies for authorized and previously   proposed stations listed on public notice and FCC internal staff listings, we find that OWTC failed to comply with Section 21.902(c).  10. As for the Canadian Valley station, WMH684, we conclude that petitioner's assertions  X;-  [do not comport with the evidence. Our de novo engineering review has revealed that OWTC's"; ,-(-(ZZ"  X-  -proposed station would cause harmful interference to cochannel station WMH684. See 47 C.F.R.    21.902(f)(1). In addition, the interference analysis submitted for WMH684 was inadequate due   to OWTC's failure to include free space calculations of the desired to undesired signal ratios to   =each reference receiving antenna within the protected service area of the previously proposed  X-  Lstation as required by Section 21.902(f). See Revision of Part 21 of The Commission's Rules, 2   FCC Rcd 5713, 5716 (1987) ("Coordination of MDS . . . systems . . . relies on accurate data   about the interference environment."). Petitioner seeks on reconsideration to file a written   "statement of consent" from Canadian Valley Telephone Company, licensee of WMH684. While   OWTC's application alludes to an exchange of letters regarding interference acceptance with   WMH684, petitioner did not include the letters with its application when it was necessary.  X -  Moreover, we note, according to WMH684, written consent was not given until after petitioner's   <application was returned. Specifically, WMH684 in its postreturn consent letter dated March 29,  X -  1993, states that it orally consented in January 1992. In order to avoid a Commission logjam,  X -  it is imperative that interference information be included with the application filing. Supra   3, 6. Therefore, in light of the foregoing, we decline to accept on reconsideration WMH684's  X -postreturn consent letter. f {O*-  ԍ See Edna Cornaggia, 8 FCC Rcd 5442, 5444, n.7 (Dom. Fac. Div. 1993) ("[I]t is no longer possible to  {O-  amend an application which has already been dismissed. . . ."); Earl V. Levels, 8 FCC Rcd 5506 (Dom. Fac. Div.   K1993) (curative amendments filed with petition for reconsideration, attempting to supply a missing interference  {O-  showing and other missing information, not allowed); Marylan J. Benson, 7 FCC Rcd at 4699, n.9 ("We reject   Benson's contention that she should be permitted to file curative amendments and have her application reinstated  {O-  nunc pro tunc, for further processing. We believe that the Division's initial return of the abovereferenced Benson application as unacceptable for filing was correct. . . .").   X- 11.  Regarding the pending previously proposed Hugo applicant,Bf {OD-ԍ See supra note 13.B we reject, as factually   incorrect, petitioner's claim that an interference study was not required for the adjacent channel   applicant because of an obstructed electrical pathway. Section 21.902(c) requires interference   analyses for all pending previously proposed or authorized stations within the later proposed   kstation's lineofsight. Our independent engineering review, conducted on reconsideration,  X-  [confirms that OWTC's transmitter site has an unobstructed electrical pathway to the proposed   Nadjacent channel Hugo station. Hence, pursuant to 47 C.F.R. 21.902(c)(2), OWTC was  X-required to submit an interference analysis for this previously proposed adjacent channel station.  12. In addition, OWTC's pledge to cooperate to protect proposed and authorized stations   from interference, does not excuse petitioner's failure to submit required interference studies. A   Npledge to comply with the requirements of Section 21.902(a) does not exempt an MMDS  Xq-  applicant from compliance with the requirements of Sections 21.901(d)(7) and 21.902(c).j\qf {O$-  zԍ See e.g., G.C. Cooper, 8 FCC Rcd at 7008. "An applicant's general statement that he would use all  {O%-  legitimate engineering techniques' does not constitute the kind of showing discussed in the MMDS Allocation Order and required under 47 C.F.R. 21.901(d)(7)."j The   mandate that applicants submit interference analyses with their applications is a separate"Z ,-(-(ZZ"   Lrequirement from the good faith commandment of Section 21.902(a), which mandates that "[a]ll   [MMDS] applicants, permittees, and licensees shall make exceptional efforts to avoid harmful   Minterference . . . and . . . are expected to cooperate fully in attempting to resolve problems of  X-  ipotential interference . . . ." As noted earlier, interference analyses are necessary at the beginning of processing MMDS applications and are a prerequisite to the grant of a license.  N13. Therefore, since petitioner both submitted an inadequate MMDS interference study   and failed to file other required interference studies, we conclude that OWTC failed to comply   with the Section 21.902 interference protection requirements and failed to demonstrate that it was  X1-  technically qualified to be an MMDS licensee, as required by Section 21.900(a). 47 C.F.R.  X -  y21.900(a). See New Channels Communications, Inc., 57 RR 2d at 1602; see also Amendments   of Parts 21, 74 and 94 of The Commission's Rules and Regulations with regard to Technical   hRequirements Applicable to the Multipoint Distribution Service, the Instructional Television Fixed  X -  Service and the Private OperationalFixed Microwave Service, 98 FCC 2d 68, 93 (1984) ("An   application that proposes cochannel or adjacent channel operation and does not contain a showing   .that the proposed operation will not cause harmful interference as described herein will not be  X-  accepted for filing."); see also Dan S. Bagley, Jr., 7 FCC Rcd 4002, 4003 (Dom. Fac. Div. 1992)   ("In the processing of MDS station applications, the interference analyses required by [ 21.902] are crucial."). Thus, OWTC's application was properly returned as unacceptable for filing.  X:- _14. Notice to Affected Parties. In addition to submitting the required interference   analyses to the Commission, an MMDS applicant must also serve each required interference study   upon all previously proposed or authorized station applicants, conditional licensees or licensees   required to be studied, pursuant to 47 C.F.R.  21.902(g) of the Commission's rules. Here, we  X-  find that OWTC failed to serve numerous applicants, conditional licensees and licensees for   istations required to be studied, thereby depriving affected parties of notice and an opportunity to  X-  =be heard. In Edna Cornaggia, 8 FCC Rcd at 5444, the return of a modification application was upheld for failure to comply with 47 C.F.R.  21.902(g):  XThe Commission makes provision for actual notice and an opportunity to be heard by  parties in interest by requiring at Section 21.902(g) that microwave stations that might be  affected by operation of an MDS station be served a copy of the required interference  0analysis for their station. Cornaggia admittedly failed to properly serve VisionAire with  a copy of the interference analysis . . . . Due to this lack of service, the orderly process  contemplated in the Commission's rulemaking order, in which Commission staff resolves interference problems after oppositions are filed, was negated.(#   Thus, the Clayton application was also properly returned as unacceptable for filing based on its failure to comply with the service requirements contained in Section 21.902(g).  X#-  :IV. CONCLUSION  15. In view of all the foregoing considerations, we affirm the staff's return of the   \OKLAHOMA WESTERN TELEPHONE COMPANY application under consideration in this"-',-(-(ZZ%" order. Reconsideration is not justified and reinstatement of the application is not warranted.  p16. Accordingly, IT IS ORDERED, that the reconsideration petition filed by OKLAHOMA WESTERN TELEPHONE COMPANY IS HEREBY DENIED.  17. IT IS FURTHER ORDERED, that the staff of the Video Services Division shall send   copies of the decision to the authorized representative for the petitioner by certified mail, return receipt requested. pX` hp x (#%'0*,.8135@8: