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.$h';U7G;A 7Xn-6F[w!/DTck{2lrK ZE'3|j"i~'^:DPddDDDdp4D48dddddddddd88pppX|pDL|pp||D8D\dDXdXdXDdd88d8ddddDL8ddddX`(`lD4l\DDD4DDDDDDDDd8XXXXXX|X|X|X|XD8D8D8D8ddddddddddXdbdddpdXXXXXlX~|X|X|X|XdddldldD8DdDDDdplld|8|P|D|D|8dvddddDDDpLpLpLpl|T|8|\ddddddl|X|X|Xd|DdpL|Dd~4ddC$CWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNHxxH\dDXddddd8@d<@d<DDXXdDDxddzHxxHvppDXd<"dxtldpxxdc406c3\lj_hp4si_2033M_600_2HPLAS4SI.PRSXj\  P6G;\#I^XPTimes New RomanCG TimesTimes New Roman BoldTimes New Roman Italic2a#f KOK!",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"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""Xx[W]e reject FEN's claim that its applications should be granted because the level of interference . . . is de  {Oc -  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). MDS applicants are required to demonstrate these protections in interference studies submitted with their applications.   x5. At the time the Fort Stockton applications were filed, in order to demonstrate  xcompliance with Section 21.902(b), applicants were required to include with the application an  xanalysis of the potential for harmful cochannel interference with any authorized or previously  xproposed station if the applicant's proposed transmitting antenna had an unobstructed electrical  xpath to any part of the protected service area of any other authorized or previously proposed  x-cochannel station, or if the applicant's proposed transmitter was within 50 miles of the transmitter  xcoordinates of any other authorized or previously proposed cochannel station.  xm47C.F.R.21.902(c)(1) (1989). In addition, Section 21.902(c)(2) required that an MDS  xLapplicant include with the application an analysis of the potential for harmful adjacent channel  xinterference if the applicant's proposed transmitting antenna had an unobstructed electrical path  x-to any part of the protected service area of any other authorized or previously proposed adjacent  Xb- xLchannel station. 47 C.F.R.  21.902(c)(2) (1989). The applicant was also required to show what  xsteps were taken to comply with Section21.902(a), which required MDS applicants, licensees,  x<and conditional licensees, to make exceptional efforts to avoid harmful interference to other users  xxand to avoid blocking potential adjacent channel stations in the same area and cochannel stations  X-in nearby areas. 47 C.F.R. 21.902(a).   ]x6. These interference showings are a significant requirement which the Commission has  x\repeatedly emphasized. The Commission, in reallocating the E and F channels from ITFS to  x[MDS, did so with the understanding that certain adjacent channel interference problems might  xarise. The Commission also anticipated that some authorized cochannel stations would be spaced  X|- xmore closely than ordinarily allowed and require careful planning and engineering. See  xyAmendment of Parts 2, 21, 74 and 94 of the Commission's Rules and Regulations in regard to  xfrequency allocation to the Instructional Television Fixed Service, the Multipoint Distribution"P ,-(-(ZZ"  X- xService and the Private Operational Fixed Microwave Service, 94 FCC 2d 1203, 1264 (1983)  X- x("MMDS Allocation Order"). Thus, the Commission stressed "we expect applicants to address  xthis problem in their applications. Those applications that do not contain an analysis of how the  xapplicant intends to avoid cochannel interference in adjacent areas will not be considered  X- xacceptable for filing."  MMDS Allocation Order, 94 FCC 2d at 1264; see also 47 C.F.R.  X- x21.902(b)(c). There has been a series of cases emphasizing the importance of interference  X|- xprotection showings in MDS applications for the E or F channels. |f {O- xԍ See, e.g., New Channels Communications, Inc., 57 RR 2d 1600, 1602 (1985) ("In our view, an MDS  xJapplication which does not contain the important and essential technical showing required by  21.902(c) cannot be  xcharacterized as complete, or in substantial compliance with the Commission's rules and regulations, as required by  {OO - xthe criteria for acceptability outlined in rule  21.20(a)."); CNI Wireless, Inc., 9 FCC Rcd 2039, 2040 (Dom. Fac.  x Div. 1994) ("Section 21.902(c)(2) requires that an applicant initially file with the application analysis of the potential  xfor harmful interference with any authorized or previously proposed adjacent channel stations within the radio  xhorizon of the applicant's proposed transmitting antenna . . . . [B]ased upon CNI's failure to comply with Section  {Oq - x,21.902, the Division's finding, that CNI's application was defective and unacceptable for filing, was proper.");  G.C.  {O;- xCooper, 8 FCC Rcd 7007, n.9 (Dom. Fac. Div. 1993) ("[T]he standard for evaluating applications under Part 21 of  xthe rules is not substantial completeness' but rather acceptability for filing'. . . . Cooper's application was  yO- xproperly returned as unacceptable for filing . . . for failure to include the technical showing required . . . . ");  {O- x,Marylan J. Benson, 7 FCC Rcd 4668 (Dom. Fac. Div. 1992) ("[T]hose applications that do not contain an analysis  xxof 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  xinterference analysis, which demonstrates lack of harmful interference, is considered a basic  XN- xrequirement in determining the acceptability of an application." Family Entertainment, 9 FCC  X9-Rcd at 567.  X -   x7. In a de novo review on reconsideration, we have determined that the Fort Stockton  xapplications were properly returned for failure to comply with our interference protection  xNrequirements, set forth at Section 21.902(c), by failing to demonstrate the lack of harmful  xinterference to previously proposed and authorized stations required to be studied. Specifically,  X - xpetitioners failed to file interference studies for: (1) one 1983 previously proposed MMDS  xcochannel station, which had an application pending on May 18, 1990, the filing date of the Fort  X- xjStockton applications  f yO- xԍ Application File No. 00744CMP83, Multichannel Distribution of America ("MDA"), for the E channels at Fort Stockton, Texas. and (2) four post1983 previously proposed MMDS cochannel stations  xwhich proposed the same site as petitioners and had applications pending on the filing date of the  XU-Fort Stockton applications. Uf yO!- xԍ Application File Nos. 50503CMP90, 50573CMP90, 50556CMP90 and 50612CMP90 at Fort Stockton, Texas.  X'-  x8. Petitioners contend that a postreturn review confirmed their original interference  xanalysis that no previously proposed or authorized MMDS stations were within 50 miles or the": ,-(-(ZZ"  X- xyline of sight of their proposed site, except for proposed collocated stations. f yOy- xԍ In support, petitioners attach, on reconsideration, an engineering statement summarizing the postreturn  xinterference review along with a printout from the private computer data base "Dataworld." Although petitioners'  xpostreturn submission results in the same erroneous "finding" (that no pending previously proposed or authorized  xMMDS stations existed within the pertinent areas) as the original interference studies and, hence, does not change  {O- xthe original showings, we again note that interference analyses are necessary at the time of filing. See 21.902(c).  {Oc- xSee also Edna Cornaggia, 8 FCC Rcd 5442, 5444, n.7 (Dom. Fac. Div. 1993) ("[I]t is no longer possible to amend  {O-- xan application which has already been dismissed . . . ."); Earl V. Levels, 8 FCC Rcd 5506 (Dom. Fac. Div. 1993)  xJ(curative amendments filed with a petition for reconsideration, attempting to supply a missing interference showing  yO-and other missing information, not allowed).  Petitioners assert  x-that interference studies for previously proposed stations, located at the same site as petitioners,  xywere not required since these had not appeared on public notice. Moreover, petitioners allege,  xCommission engineering staff advised petitioners' attorney that interference studies of samesite  xkadjacent channel applications were unnecessary. In addition, petitioners contend that their  xapplications had already passed Commission "muster" by appearing on public notice as acceptable  x]for filing. Petitioners also argue that various parties filed 43 collocated adjacent channel  xapplications which contained "parallel" interference showings (that no facilities existed within 50  XH- ximiles of the proposed site) and were found acceptable for filing. Hf yO- xԍ In support, petitioners attach, on reconsideration, copies of the relevant pages of the June 6, 1992 FCC internal staff listing which lists these applications. These applications were placed  X1- x{in a lottery and one was eventually granted. 1 f yO- xԍ Petitioners attach, on reconsideration, copies of the relevant page of the December 4, 1992 FCC internal staff  xlisting to show that WMI876, Application File No. 52110CMP90, was granted the F channels for Fort Stockton  x on March 16, 1992. On November 16, 1992, WMI876 was forfeited. A petition for reinstatement of the conditional license is currently pending before the Commission. Therefore, petitioners contend, if these 43  xapplications could pass Commission muster, the Commission should not have returned petitioners'  X - x[applications. Lastly, petitioners assert, since there were no authorized or previously proposed  xstations required to be studied, there were no required parties to serve. Thus, petitioners state, their applications should be reinstated.  X -  x 9. At the time of their application filings, the Fort Stockton applicants failed to submit  xrequired interference analyses for pending previously proposed stations which had appeared on  x=prior FCC internal staff listings. For example, petitioners failed to submit an interference study  xfor the pending previously proposed 1983 cochannel station of MDA, located a mere 4.90 miles  XK- xfrom petitioners' proposed site. See supra note 9. This Fort Stockton application appeared most  x@recently prior to petitioners' filing date on the May 17, 1990 FCC internal staff listing.  x=Therefore, given petitioners' failure to file interference analyses, at the time of their application  X- xfilings, for this 1983 MDA application which was listed on FCC internal staff listings, we find  xthat even apart from any failure of petitioners to file interference studies for proposed samesite stations, petitioners did not comply with Section21.902(c). x " ,-(-(ZZ4"Ԍ  x10. Regarding petitioners' failure to submit interference studies for pending previously  xMproposed samesite stations, we find petitioners' arguments unpersuasive. With respect to  xipetitioners' assertion that analyses were not required because these stations had not appeared on  xipublic notice, the Commission's rules do not state that interference studies need not be performed  xif the application has not appeared on public notice. As noted previously, Part 21 rules required  X- xinterference studies for any cochannel authorized or previously proposed station within 50 miles  Xx- xof their proposed site or for which they had an unobstructed electrical path, and for any adjacent  xchannel previously proposed or authorized station for which an unobstructed electrical path  xexisted. 47 C.F.R. 21.902(c)(1)(2). The Commission has stated, in response to a suggestion  xxthat proposals to collocate adjacent channel stations be exempt from interference studies between  xthe two stations, that the interference analysis requirement is satisfied with a "onesentence  X - xstatement that the stations will be collocated." In re Amendment of Parts 21, 43, 74, 78, and 94  xof the Commission's Rules Governing Use of the Frequencies in the 2.1 and 2.5 GHz Bands  xiAffecting: Private OperationalFixed Microwave Service, Multichannel Multipoint Distribution  X - xService, Instructional Television Fixed Service, and Cable Television Relay Service, 5 FCC Rcd  x6410, 6413 (1990). The Commission noted that this suggestion was already included in the  X- xCommission's rules. Id. at 6412. Here, however, the Fort Stockton applicants did not include  xa onesentence statement proposing to collocate with the previously proposed adjacent channel  xstations. Nor did the Fort Stockton applicants submit interference studies for the previously  XU- xproposed cochannel stations. See supra  7. Petitioners failed even to acknowledge the  X@- xexistence of these pending previously proposed adjacent channel and cochannel stations.w@f {O- xԍ Although, as discussed infra, it appears that the Fort Stockton applicants were aware of the collocated adjacent  xhchannel applicants as petitioners purport to have relied on FCC engineering staff advice that interference studies for  xYsamesite adjacent channel applicants were unnecessary. Moreover, on reconsideration, petitioners attach copies of  xKthe July 30, 1990 FCC internal staff listing which lists all four previously filed samesite cochannel applications.  {O-See supra note 10.w Thus, petitioners did not satisfy the interference analysis requirements for these stations.   _x11. As for petitioners' allegations that Commission engineering staff stated it was  xunnecessary to file interference studies for collocated adjacent channel facilities, we note that  xeven assuming, for the sake of argument, that such statements were made, they neither bind the  xCommission nor prevent us from enforcing Commission regulations. The Commission has  x=specifically held that parties who rely on staff advice or interpretations do so at their own risk.  X- x\See, e.g., AAT Electronics Corp., 53 RR 2d 1241, 122526 (1983), aff'd, P&R Temmer v. FCC,  Xs- x 743 F.2d 918, 931 (D.C. Cir. 1984). When staff advice is contrary to the Commission's rules,  X\- x[the Commission may still enforce its rules, despite any reliance by the public. See Malkan FM  XG- xAssociates v. FCC, 935 F.2d 1313 (D.C. Cir. 1991) (affirming Commission's decision to enforce  xits rules despite earlier staff statements giving erroneous interpretation of the rules at official  x/seminar). Here, the official pronouncements of the interference analysis requirements were  X- xpublished in the Commission's regulations at 47 C.F.R. 21.902(c)(1)(3). These requirements  xare clear and it is reasonably expected that applicants will turn to these regulations for guidance.  X - pp "!|,-(-(ZZ "Ԍ  x12. We also reject petitioners' assertions regarding the interference showings of 43  xcollocated adjacent channel applications, which were placed in a lottery, as unsubstantiated  X- x=assertions and not relevant as to whether petitioners complied with their interference analysis  xobligations. Petitioners claim that the 43 collocated adjacent stations contained "parallel"  xinterference showings that no MMDS stations were located within 50 miles of the Fort Stockton  X- xproposed site, but petitioners fail to provide any support for this assertion. A bald conclusion,  Xx- xLwithout any offer of proof or documentary support, has no probative value. See Jim Bolton, 2  Xc- xFCC Rcd 3207 (Comm. Car. Bur. 1987). Additionally, in our de novo review, supra  7, we  xhave found, based on petitioners' application filing dates and transmitter site, that they were  xZrequired to file interference studies for pending previously proposed 1983 and post1983 stations.  xWhether the collocated adjacent channel applicants had to file interference analyses depends on  x=their particular filing dates. Moreover, even if we assume that the collocated adjacent channel  x<applicants were required to perform interference studies and failed to do so, as petitioners' assert,  X - xthis erroneous and unexplained staff action, is not Commission precedent. See e.g., North Texas  X - xMedia, Inc. v. FCC, 778 F.2d 28, 33 (D.C. Cir. 1985) ("The initial improvident grant of a [short x spacing] waiver . . . now described as an error, does not deprive the agency of authority to  X- xrequire future applicants to meet certain standards, in order to obtain such a waiver); Quinnipiac  X- xzCollege, 8 FCC Rcd 6285, 6286 (1993); Walter Faber, 4 FCC 5492, 5493 (1989), recon denied,  Xp- x"6 FCC Rcd 3601 (1991), aff'd mem., Faber v. FCC, 962 F.2d 1076 (D.C. Cir. 1992). The  xKCommission is not bound by any alleged staff errors and, hence, the interference showings of the  x43 collocated adjacent channel stations have no relevance to the inference analyses that the Fort Stockton applicants were required to perform.   @x13. Furthermore, we find the fact that petitioners' applications had been preliminarily  xaccepted for filing unpersuasive. The August 29, 1990 public notice announcing the Fort  xjStockton applicants as accepted for filing qualified this initial acceptance by stating that "[t]he  x=Commission reserves the right to return any of these applications, if upon further examination,  xit is determined they are defective or not in substantial compliance with the Commission's rules.  X- x(See 47 C.F.R. 21.20 and 21.26)." Section 21.20 sets forth the standards for acceptance for  Xw- x!filing of an MMDS application. See supra note 3. Section 21.26 explicitly provides that  x"[n]either the assignment of a file number nor the listing of the application on public notice as  x<accepted for filing indicates that the application has been found acceptable for filing or precludes  xthe subsequent return or dismissal of the application if it is found to be defective or not in  x\substantial compliance with the Commission's rules." 47 C.F.R. 21.26. Therefore, the mere  x/statement that the Fort Stockton applications were accepted for filing does not prevent the Commission from returning the applications.   Nx14. Thus, due to the failure to file required interference analyses for pending previously  xproposed 1983 and post1983 stations, we find that the Fort Stockton applicants failed to comply  xwith Section 21.902(c). "An application that proposes cochannel or adjacent channel operation  xand does not contain a showing that the proposed operation will not cause harmful interference  Xe%- x=as described herein will not be accepted for filing." Amendments of Parts 21, 74 and 94 of the  xCommission's Rules and Regulations with regard to Technical Requirements Applicable to the  xMultipoint Distribution Service, the Instructional Television Fixed Service and the Private"9',-(-(ZZ%"  X- xOperationalFixed Microwave Service, 98 FCC 2d 68, 93 (1984). Accordingly, the Fort Stockton applications were unacceptable for filing and properly returned.  X-  !x15. Notice to Affected Parties. In addition to submitting required interference analyses  xto the Commission, an MDS applicant also must serve each required interference study upon the  xpreviously proposed or authorized station applicant, conditional licensee or licensee required to  x<be studied, and submit a list identifying each applicant, conditional licensee, and licensee served.  Xa- x/47 C.F.R.  21.902(g). The Fort Stockton applicants failed to serve, at the time of filing, any  XL- xcopies of the required interference analyses, as mandated by Section 21.902(g), on any of the  X7- xrequired applicants, conditional licensees and licensees for stations stipulated to be studied by  X" - xSection 21.902(c), thus depriving affected parties of notice and opportunity to be heard. In Edna  X - xCornaggia, 8 FCC Rcd at 5444, the return of a modification application was upheld for failure to comply with Section 21.902(g):   XxThe 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.(#  xThus, these applications were also properly returned as unacceptable for filing based on their failure to comply with the service requirements contained in Section21.902(g).  X-xpppp"IV. CONCLUSION   x16. In view of all the foregoing considerations, we affirm the staff's return of the GMD  xMicrocable Partnership and Sahara Wireless TV Partnership applications under consideration in this order. Reconsideration is not justified and reinstatement of the applications is not warranted.   mx17. Accordingly, IT IS ORDERED, that the reconsideration petitions filed by the Fort  X,- xStockton applicants ARE HEREBY DENIED. IT IS FURTHER ORDERED, that the staff of  xthe Video Services Division shall send copies of the decision to the authorized representative for the petitioners by certified mail, return receipt requested. pX` hp x (#%'0*,.8135@8: