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.$h';U7G;A 74 Times New RomanCG TimesTimes New Roman BoldTimes New 2lrK ZE'3|j"i~'^:DPddDDDdp4D48dddddddddd88pppX|pDL|pp||D8D\dDXdXdXDdd88d8ddddDL8ddddX`(`lD4l\DDD4DDDDDDDDd8XXXXXX|X|X|X|XD8D8D8D8ddddddddddXdbdddpdXXXXXlX~|X|X|X|XdddldldD8DdDDDdplld|8|P|D|D|8dvddddDDDpLpLpLpl|T|8|\ddddddl|X|X|Xd|DdpL|Dd~4ddC$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]SSSSx]x]x]x]xSxSx]SSxSxSf X    X-w  Federal Communications Commission`(#=DA 98754 ă  yxdddy   X-vK#X\  P6G;ɓP# Before the Federal Communications Commission  yO}"Washington, D.C. 20554 ă  X*-#Xj\  P6G;yoXP#In the Matter of the Applications ofj) j)  X-RICHARD D. MORGESE TRUSTj)File Nos. 61274CMP91;  X-j)61275CMP91 For Authority To Construct and Operatej) Multipoint Distribution Service Stationsj) on the E and F Group Channels in j) Edgewood, Texasj)  X[ -  ORDER ON RECONSIDERATION lU  X--X` hp x (#%'0*,.8135@8:deficient interference showings pursuant to 47 C.F.R.  21.902 due to the failure to serve all   affected parties pursuant to 47 C.F.R.  21.902(g) and failure to consider all previously proposed   or authorized Instructional Television Fixed Service or MMDS stations pursuant to 47 C.F.R.   X-  21.902(c) and/or 21.902(i), and proposed a transmitter site within a Metropolitan Statistical Area  X-  [("MSA") or its buffer zone, in noncompliance with the Amendments of Parts 1, 2, 21 and 43 of   the Commission's Rules and Regulations to Provide for Licensing and Regulation of Common  Xa-  Carrier Radio Stations in the Multipoint Distribution Service, 45 FCC 2d 616 (1974) and 47  XL-  C.F.R. 21.901(d)(5). In its April 2, 1993 petitions for reconsideration, RDMT argues that its   applications complied with the abovenoted rules addressing interference protection showings, service of interference analyses, and MSA borders.  X -=III. DISCUSSIONă  3. Because we find dispositive RDMT's failure to submit required interference studies   <with its applications and to give notice, by service of these analyses, to the parties required to be   studied, it is unnecessary to address petitioner's argument concerning its violation of the  X}-  =Commission's MSA protections. See infra  7. As discussed below, interference analyses are   Knecessary at the time of application filing due to the extensive planning and engineering involved   Kin the MMDS licensing process. In addition, service upon affected parties, as defined by Section   21.902(g), is required so that interested parties have actual notice of the proposed station and   sufficient time to respond if desired. Therefore, even if we were to accept petitioner's argument   concerning the MSA deficiency cited in the return letters, the Edgewood applications were still deficient due to RDMT's failure to comply with the requirements of Section 21.902.  X-j  X- 04. Interference Protection. Section 21.902(b) requires an MDS applicant to engineer its   proposed station to provide at least 45 dB of interference protection within the protected service  X-  areas{ yO-ԍ Protected service areas for MDS stations are defined at 47 C.F.R. 21.902(d).{ of all other authorized or previously proposed cochannel stations and at least 0 dB of   kinterference protection within the protected service area of all other previously proposed or  Xk-  Lauthorized adjacent channel stations.kX {Ot-  Lԍ MDS applicants have been consistently required to comply with  21.902(b). In Family Entertainment  {O>-  Network, Inc., 9 FCC Rcd 566, 568 (Dom. Fac. Div. 1994), the Domestic Facilities Division returned as unacceptable   ;for filing an application which demonstrated that the level of interference was within 0.16 dB of meeting the 45 dB cochannel standard. In so doing, it was stated that:  {O`"- >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. (#  47 C.F.R. 21.902(b)(3)(4). MDS applicants are required to demonstrate these protections in interference studies submitted with their applications. "= ,-(-(ZZ{"Ԍ 5. At the time the Edgewood applications were 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)(1990). In addition, Section 21.902(c)(2) required that an MDS   Lapplicant 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  X -  channel station. 47 C.F.R. 21.902(c)(2)(1990). The applicant was also required to show what   zsteps were taken to comply with the requirements of Section21.902(a), which required MDS   applicants, licensees, and conditional licensees, to make exceptional efforts to avoid harmful   interference to other users and to avoid blocking potential adjacent channel stations in the same  X -area and cochannel stations in nearby areas. 47 C.F.R. 21.902(a).  ]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   [MDS, 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  X-  Service and the Private Operational Fixed Microwave Service, 94 FCC 2d 1203, 1264 (1983)  X-  ("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.  Xm-  21.902(b)(c). There has been a series of cases emphasizing the importance of interference  XV-  protection showings in MDS applications for the E or F channels.2 V {O-  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  {OK#-  ,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 . . . . ");  {Oo&-  ,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 ."9',-(-('" . . . This interference protection showing is a significant requirement . . . .").  "[T]he filing of an"VX,-(-(ZZ^"   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.  X-  7. In a de novo review, on reconsideration, we have determined that the Edgewood   applications were 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   Zinterference to previously proposed stations required to be studied. Specifically, both Edgewood  XL-  applications failed to file interference studies for 146 post1983 previously proposed MMDS   stations which had applications pending on August 16, 1991, the filing date of the Edgewood  X -  yapplications. X yO' -  ԍ These include, but are not limited to, Application File Nos. 58405CMP91, at Dallas, Texas; 55158CMP91, at Mount Pleasant, Texas; 58601CMP91, at Greenville, Texas; and 53268CMP90 at Tyler, Texas. In addition, RDMT's application for the E group channels at Edgewood failed to   file interference studies for 105 post1983 previously proposed adjacent channel MMDS stations  X -  [with applications pending on August 16, 1991.  yOQ-  ԍ These include, but are not limited to, Application File Nos. 50289CMP89, at Athens, Texas; and 52971CMP90, 52972CMP90, and 52973CMP90 at Tyler, Texas. Similarly, RDMT's application for the F group   channels at Edgewood also failed to file interference studies for 171 post1983 previously  X -  proposed adjacent channel MMDS stations with applications pending on August 16, 1991.  yO{-  ԍ These include, but are not limited to, Application File Nos. 53061CMP91, 57120CMP91, and 57003CMP91 at Tyler, Texas. Thus,   the Edgewood E group and F group applications failed to file required interference analyses for   [a total of 251 and 317, respectively, pending previously proposed MMDS stations. Moreover,   our independent engineering review has revealed that the MMDS interference studies that were   isubmitted by RDMT were inadequate because they 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 previously proposed stations, required pursuant to 47 C.F.R. 21.902 (f).  |8. Petitioner contends that there were no pending previously proposed or authorized   stations for which petitioner failed to file interference studies. Specifically, petitioner's engineer   states that apart from the pending previously proposed MMDS stations for which RDMT filed   studies for or explained why studies were unnecessary, his search revealed no other such stations.   kPetitioner's engineer does not identify what resources were utilized in his search of MMDS   stations and applications. However, we note, had petitioner's engineer examined publicly  X-  .available information, the proposed stations noted in  7, supra, would have been discovered.   zFor example, RDMT failed to file an interference study for the pending previously proposed   MMDS station, Application File No. 53268CMP90 for Tyler, Texas, which appeared just prior to petitioner's filing date on the July 9, 1991 FCC internal staff listing. "&` ,-(-(ZZz"Ԍ 9. Regarding the MMDS studies that were filed, we have found that these were   inadequate due to RDMT's failure to include free space calculations of the desired to undesired   signal ratios to each referenced receiving antenna within the protected service area of the  X-  .previously proposed stations as required by Section 21.902(f). See Revision of Part 21 of The  X-  Commission's Rules, 2 FCC Rcd 5713, 5716 (1987) ("Coordination of MDS . . . systems . . .   relies on accurate data about the interference environment."). As for the collocated adjacent  Xz-  channel applications for which RDMT failed to file studies for,D z {O-ԍ See supra notes 78.D petitioner's engineer asserts that   these studies were not required because: (1) the proposed adjacent stations were collocated with   the cochannel stations petitioner did study; (2) the adjacent channel criteria is lower than the   cochannel criteria, which petitioner's engineer alleges, RDMT met through the collocated   cochannel studies; and (3) should any interference arise RDMT would cooperate to resolve the   interference problem. We are not persuaded by petitioner's engineer as his assertions do not   comport with the Commission's rules. Section 21.902(c) requires interference analyses for all   .pending previously proposed or authorized stations within the later proposed station's lineof  X -  Nsight. Our de novo engineering review confirms that RDMT's proposed stations had an   unobstructed electrical path to these adjacent channel stations. Furthermore, we note, RDMT's   pledge to cooperate to protect the proposed stations from interference, does not excuse petitioner's   failure to submit an interference study. A pledge to comply with the requirements of Section   21.902(a) does not exempt an MDS applicant from compliance with the requirements of Sections  XQ-  21.901(d)(7) and 21.902(c).j \QZ {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 requirement from the good faith commandment of Section 21.902(a),   which mandates that "[a]ll [MDS] applicants, permittees, and licensees shall make exceptional   efforts to avoid harmful interference . . . and . . . are expected to cooperate fully in attempting  X-  to resolve problems of potential interference . . . ." As noted earlier, interference analyses are   -necessary at the beginning of processing MDS applications and are a prerequisite to the grant of a license.  /10. Therefore, since petitioner both submitted inadequate MMDS interference studies and   =failed to file other required interference studies, we conclude that RDMT failed to comply with   the Section 21.902 interference protection requirements and failed to demonstrate that it is  XT-  technically qualified to be an MDS licensee as required by 47 C.F.R. 21.900(a). See New  X?-  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 Requirements Applicable   to the Multipoint Distribution Service, the Instructional Television Fixed Service and the Private  X-  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 accepted for filing.");  X!-  \see also Dan S. Bagley, Jr., 7 FCC Rcd 4002, 4003 (Dom. Fac. Div. 1992) ("In the processing"!~ ,-(-(ZZ "   of MDS station applications, the interference analyses required by [ 21.902] are crucial."). Thus, RDMT's applications were properly returned as unacceptable for filing.  X- _11. Notice to Affected Parties. In addition to submitting the required interference   analyses to the Commission, an MDS applicant must also serve each required interference study   upon all previously proposed or authorized station applicants, conditional licensees or licensees  Xv-  krequired to be studied, pursuant to 47 C.F.R.  21.902(g). Here, we find that RDMT failed to  X_-  serve numerous applicants, conditional licensees and licensees for stations required to be studied,  XJ-  Kthereby depriving affected parties of notice and an opportunity to be heard. In Edna Cornaggia,   ?8 FCC Rcd 5442, 5444 (Dom. Fac. Div. 1993), 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.(#   KThus, the Edgewood applications were also properly returned as unacceptable for filing based on their failure to comply with the service requirements contained in Section 21.902(g).  X -  :IV. CONCLUSION  l12. In view of all the foregoing considerations, we affirm the staff's return of the Richard   -D. Morgese Trust applications under consideration in this order. Reconsideration is not justified and reinstatement of the applications is not warranted.  13. Accordingly, IT IS ORDERED, that the reconsideration petitions filed by the Richard D. Morgese Trust ARE HEREBY DENIED.  14. 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. ` `  hh,VFEDERAL COMMUNICATIONS COMMISSION    ` `   ` `  hh,VCharles E. Dziedzic ` `  hh,VAssistant Chief, Video Services Division  X>&-` `  hh,VMass Media Bureau