WPCM 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 PE37XPindowInfoWWFONTDIRinteresTr2rrK ZK'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$CWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNHxxH\dDXddddd8@d<@d<DDXXdDDxddzHxxHvppDXd<"dxtldpxxdc406c3\lj_hp4si_2033M_600_2HPLAS4SI.PRSXj\  P6G;\#I^XP"i~'^09CSS999S]+9+/SSSSSSSSSS//]]]Ixnnxg]xx9?xgxx]xn]gxxxxg9/9MS9ISISI9SS//S/SSSS9?/SSxSSIP!PZ9+ZM999+99999999S/xIxIxIxIxIlnIgIgIgIgI9/9/9/9/xSxSxSxSxSxSxSxSxSxSxIxSxRxSxSxS]SxIxIxInInInZnIxigIgIgIgIxSxSxSxZxSxZxS9/9S999Su]ZZxSg/gCg9g9g/xSbxSxSxSxSxn9n9n9]?]?]?]ZgFg/gMxSxSxSxSxSxSxxZgIgIgIxSg9xS]?g9xSi+SS88WuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxN/>/>/>/x]SSSSx]x]x]x]xSxSx]SSxSxSf]xSxSxSxIxIxWxIx{nInInInISSSWS]a?/?]?9?]]WW]n/nKn9nCn/x]xx]x]SSxxIxIxI]?]?]?]WnUn9nax]x]x]x]x]x]xxWnInInIx]n9x]]?n9xSz+SS8-8WuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxN8HH"&H>XHH8HB8>HH^HH>"".2",2,2,"222N2222"&22H22,006"6."""""""""""2H,H,H,H,H,XAB,>,>,>,>,""""H2H2H2H2H2H2H2H2H2H2H,H2H1H2H2H282H,H,H,B,B,B6B,H?>,>,>,>,H2H2H2H6H2H6H2""2"""2F866H2>>(>">">H2;H2H2H2H2XHB"B"B"8&8&8&86>*>>.H2H2H2H2H2H2^HH6>,>,>,H2>"H28&>"H2?22!!WFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxN$<<$.2",2222`2 LL2 LL2L"",,2d""order is the most efficient use of Commission resources.3"Gx& yOp- xԍ All of the applicants, subject to this order, proposed the same transmitter site on the Fgroup channels at  {O8- xAstoria, Oregon. See infra  2. In addition, nine of the applicants joined together in the filing of two joint petitions  xfor reconsideration. Moreover, all of the petitioners acknowledge that the reconsideration petitions contained substantially similar arguments as raised on behalf of the other petitioning Astoria, Oregon applicants.3 As discussed in detail below, we  x|conclude that the applications were properly returned. Accordingly, the petitions for reconsideration are denied.  II. BACKGROUND   ^x2. These applications for the Fgroup channels proposed the same transmitter site at  X- xAstoria, Oregon ("Astoria applications") and were filed with the Commission, on March 5, 1990,b & yO(-ԍ Application File Nos. 50558CMP90; 50568CMP90; 50583CMP90; and 50613CMP90." ,))ZZ"  X-March23,1990,M yOy-ԍ Application File No. 50769CMP90.M֠andMay18,1990.X yO -ԍ Application File Nos. 51984CMP90; 51985CMP90; 52113CMP90; 52114CMP90; and 52212CMP90.֠TheAstoriaapplicantsthatfiledinMarch1990D {Oa-ԍ See supra notes 34.D֐ X- xamended their applications, pursuant to 47 C.F.R. 21.23(a), on April 19, 1990.B yO- xԍ At the time these Astoria applicants submitted amendments, Section 21.23(a) permitted amendments to pending  {O - xapplications not designated for a hearing or comparative evaluation. 47 C.F.R.  21.23(a)(1989); see also Mickelson  {On - xhMedia, Inc., 8 FCC Rcd 3102 (Dom. Fac. Div. 1993); Kansas City Southern Industries, Inc., 3 FCC Rcd 2851 (Dom.  x<Fac. Div. 1988). Almost two years after the Astoria amendments were filed, the Commission on April 9, 1992,  {O - ximposed a freeze on the filing of most amendments to pending applications. Notice of Proposed Rulemaking, 7 FCC Rcd 3266, 3270 n.35 (1992). These  X- xamendments, inter alia, changed the applicants' antenna polarization and, hence, pursuant to 47  X- xC.F.R.  21.23(c), were major amendments.  yO.-ԍ Section 21.23(c)(2)(ii) lists "[a] change in polarization" as being deemed a major amendment. Therefore, as set forth at 47 C.F.R.  21.31(e),  x-these Astoria applicants were classified as newly filed applications with an application filing date  X-of April 19, 1990, the date the major amendments were filed.W XP  yO- xԍ Section 21.23(e) provides that "[f]or purposes of this section, any application (whether mutually exclusive or  xnot) will be considered to be a newly filed application if it is amended by a major amendment (as defined by 21.23) . . . . " 47 C.F.R.  21.23(e). W   Qx3. A review by Commission staff of the Astoria applications, revealed that the  XJ- x\applications were unacceptable for filing.t Jp yOk- xԍ Section 21.20(a) of the rules, 47 C.F.R.  21.20(a), sets forth the standards for returning MMDS 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   (2) The application does not substantially comply with the Commission's rules, regulations, specific requests for additional information, or other requirements.(#t Specifically, four of the Astoria applicants were  X3- xreturned on May 31, 1990,A 3@ {O$"-ԍ See supra note 3.A on the grounds that the market was unavailable for filing due to a  X - xpreviously proposed 1983 Astoria applicant.o   yO$-ԍ No specific 1983 Astoria application was cited in the return letters.o Another Astoria applicant was returned on June  X - x19, 1990,A  b {O'-ԍ See supra note 4.A due to failure to consider a previously proposed1983 adjacent channel Astoria"  ,-(-(ZZ} "  X- x/applicant.P yOy- xԍ The return letter cited MDA, Inc., Application File No. 390CMP83, as the previously proposed 1983 E x+ group applicant at Astoria, Oregon. Petitioner alleges that a postreturn conversation with Commission staff indicated  xthat petitioner's application should not have been returned for failure to consider the MDA application, but rather  yO- xshould have stated that the area was not open for filing as was listed in the May 31, 1990 return letters. We find,  xhowever, that petitioner's application was deficient on several grounds including failure to consider, by filing an  {Oa-interference analysis, the MDA application as well as filing in an unavailable market. See infra.P The remaining five Astoria applicants were returned on August 28, 1990,MB yO-ԍ Application File No. 51984CMP90.M and  X- xjNovember 7, 1990, yOl -ԍ Application File Nos. 51985CMP90; 52113CMP90; 52114CMP90; and 52212CMP90. because of inadequate interference analysis pursuant to 47 C.F.R. 21.902  xdue to failure to consider all previously proposed Instructional Television Fixed Service ("ITFS")  X-and MMDS stations.mb  yO -ԍ No specific ITFS or MMDS stations were cited in the return letters.m  X-  Ԡx4. In accordance with their respective return dates, the Astoria applicants filed timely  xpetitions for reconsideration for the ten returned applications. On reconsideration, all of the  xAstoria petitioners have selfidentified the subsequently authorized 1983 cochannel station,  xWMH713, Application File No. 3265CMP83, for Astoria as the reason their applications were  X1- xreturned.31  {O- xiԍ Although some of the Astoria petitioners were returned solely due to inadequate interference showings, see  {O-supra  3, these petitioners also addressed the Astoria market's availability for filing for "consistency" purposes. 3 Petitioners raise various arguments to support their contention that the Astoria market  xwas open for filing. In addition, the Astoria petitioners included information purporting to show  x\that their postreturn service on WMH713 was returned by the U.S. Postal Service stamped  X - x"Attempted, Unknown." N  yO-ԍ Petitioners included this information with their original petitions for reconsideration or in supplements. Lastly, all of the petitioners assert that they complied with the  xCommission's interference analysis requirements. We will examine the Astoria petitioners' contentions in full below. x" III. DISCUSSION  Xb-  x 5. Availability of the Astoria Market for Filing. In order to be acceptable for filing  xMMDS applications must be filed on or before the applicable cutoff date for mutually exclusive  xapplications. By way of background, the Commission initially authorized the filing of MMDS  X- xapplications on the E or F channels on one filing date, September 9, 1983. See Amendment of  x Parts 2, 21, 74 and 94 of the Commission's Rules and Regulations in regard to frequency  xallocation to the Instructional Television Fixed Service, the Multipoint Distribution Service, and  X- xjthe Private Operational Fixed Microwave Service, 94 FCC 2d 1203, 12621266 (1983) ("MMDS  X- xMAllocation Order"); Establishment of MultiChannel Systems, 48 Fed. Reg. 33,873 (July 26,  X- x.1983), as corrected, 48 Fed. Reg. 34,746 (August 1, 1983). If an MMDS application is mutually",-(-(ZZp"  xexclusive with a 1983 application or authorized station, the applicable cutoff date is the oneday  X- xZfiling date designated for those applications, September 9, 1983. Establishment of MultiChannel  X- xSystems, 48 Fed. Reg. 33,873, as corrected, 48 Fed. Reg. 34,746. Section 21.31(a) of the  xCommission's rules provides the standard for the determination of mutual exclusivity. The  xCommission considers applications to be mutually exclusive if their conflicts are such that the  xygrant of one application would effectively preclude by reason of harmful electrical interference,  xor other practical reason, the grant of one or more of the other applications. The Commission  xypresumes "harmful electrical interference" to mean interference which would result in a material  x?impairment to service rendered to the public despite full cooperation in good faith by all  xLapplicants or parties to achieve reasonable technical adjustments which would avoid electrical  X - xMconflict. 47 C.F.R.  21.31(a).z  yO - xxԍ In applying this standard, the staff evaluates whether the MDS applications were filed: (1) within 50 miles  x[of an authorized or previously proposed MDS station, and (2) within the radio horizon (with an unobstructed  xZelectrical path) of the protected service area of an authorized or previously proposed MDS station. Applications  xwhich are determined to be either within 50 miles or with an unobstructed electrical path to any part of the protected  xservice area of any station, are considered to be mutually exclusive with the station unless they demonstrate a lack  xof harmful interference by submission of interference studies with their applications pursuant to the standards  {OG-specified in the Commission's rules. See 47 C.F.R.  21.902(b)(3)(4).   After the initial MMDS application filing date of September 9, 1983, no filing period was again designated until 1988.   x6. In accordance with 47 C.F.R. 21.901(d)(4), the Commission then designated that  X - xMMDS applications could be submitted for filing commencing April 20, 1988, but only for  X - x?locations which were: (1) farther than 50 miles from any proposed location of an MMDS  x\application pending on April 19, 1988, or an authorized station; and (2) farther than 15 miles  xfrom the boundary of a statistical area for which there were applications pending on April 19,  Xh- xx1988. Public Notice, Common Carrier Bureau Opens Filing Period for Multichannel Multipoint  XS- xDistribution Service Applications, 3 FCC Rcd 2661 (Comm. Car. Bur. 1988) ("1988 Public  X>- xNotice"). These location restrictions were announced in the first paragraph of the 1988 Public  X)- xNotice and twice repeated on the first page. In addition, it was explicitly stated, in the first  X- xxparagraph, "We do not anticipate granting any waivers of this location requirement. Applications  X- x\that fail to comply with this requirement will be dismissed as unacceptable for filing." 1988  X- xPublic Notice, 3 FCC Rcd at 2661. It was also emphasized twice that applications filed in  X-violation of the location requirements would be returned as unacceptable for filing. Id.    x7. Despite these clear directives, petitioners proposed a transmitter site in violation of the  X- xlocation restrictions of the 1988 Public Notice. Specifically, petitioners proposed a transmitter  xsite within 50 miles of the following two 1983 applications pending at the time of the Astoria  xfilings, Application File Nos. 390CMP83, located at the same site as petitioners' and 3265CM XM- xP83, WMH713, located a mere 18.24 miles from petitioners' proposed site. Moreover, we  xconclude that the Astoria applications were mutually exclusive with and cutoff by the 1983,  X- xsubsequently authorized cochannel station, WMH713. See 47 C.F.R.  21.31; see also  X - xEstablishment of MultiChannel Systems, 48 Fed. Reg. 33,873, as corrected, 48 Fed. Reg. 34,746.  X- x  Thus, the abovereferenced applications were properly returned as unacceptable for filing pursuant" ,-(-(ZZ"  xto Section 21.31(d), which states in part: "An application otherwise mutually exclusive with one  x[or] more previously filed applications, but filed after the appropriate [cutoff] date . . . will be returned without prejudice . . . ." 47 C.F.R. 21.31(d).  X-  0x8. Petitioners contend that since WMH713 did not appear on public notice as accepted  xfor filing until May 23, 1990, after all of the petitioners had filed their mutually exclusive  xapplications, petitioners should be placed in a lottery with WMH713. Specifically, petitioners  X_- xLmaintain that the 1988 Public Notice did not explicitly exempt previously filed 1983 applicants  xxfrom mutual exclusivity groupings with subsequently filed applications. According to petitioners,  X3- xkthe 1988 Public Notice did not prohibit the filing of applications for sites within 50 miles of  X - xystations existing and pending on April 19, 1988. In particular, petitioners claim that in the 1988  X - xPublic Notice paragraph two, which prohibits the filing of applications for locations within 50  xmiles of stations existing or pending on April 19, 1988, and paragraph six, which quotes 47  X - xC.F.R. 21.902 governing the filing of interference studies are in patent conflict. Also,  X - xpetitioners assert, a literal interpretation of the 50mile location restriction contained in the 1988  X - xPublic Notice would bar filings for adjacent channels  for which a 1983 application had been  xLfiled, which, petitioners allege, Commission engineering staff acknowledged was not intended.  X- xPetitioners contend that since the 1988 Public Notice is contradictory within itself and with Section 21.902; it was improper to return petitioners' applications on these grounds.  XB-  x9. We find, however, that petitioners' assertions misconstrue the 1988 Public Notice and  X-- x>the Commission's rules. The 1988 Public Notice was specifically designed to protect 1983  xproposed and authorized stations from mutual exclusivity and interference problems caused by  X- xsubsequently filed applicants. Hence, the 1988 Public Notice restricted MMDS applicants from  xfiling within the designated parameters of these proposed and authorized stations. As for the  X- x"contradiction" between the 1988 Public Notice and 47 C.F.R.  21.902, Section 21.902, in pertinent part, stated: XxThe following interference studies, as appropriate, shall be included with each application:(#  ` XxX` ` (1) An analysis of the potential for harmful cochannel interference with any  ` authorized or previously proposed stations(s), if: (i) The proposed transmitting  ` antenna has an unobstructed electrical path to any part of the protected service  ` oarea of any other station(s) that utilize(s), or would utilize, the same frequency;  ` Aor (ii) if the proposed transmitter is within 50 miles of the coordinates of any such  ` station.... (2) An analysis of the potential for harmful interference with any  ` authorized or previously proposed stations(s), if the proposed transmitting antenna  ` has an unobstructed electrical path to any part of the protected service area of any other station(s) that utilizes, or would utilize, an adjacent channel frequency....(#`  X~$- x?47 C.F.R.  21.902(c)(1) and (2) (1989). These interference analysis requirements were in  Xi%- xaddition to the location restrictions that were announced in the 1988 Public Notice. It is within  XT&- xthis context that in the sixth paragraph on the second page, the 1988 Public Notice addresses the  X?'- xissue of interference studies by citing to Section 21.902 of the rules. As noted, supra, the 1988"?',-(-(ZZ%"  X- x/Public Notice repeatedly stated that MMDS applicants could propose transmitter sites for  X- xLlocations which were further than 50 miles from any then authorized MMDS station or MMDS  X- xapplication pending on April 19, 1988. Therefore, in light of the clear intent of the 1988 Public  X- xKNotice to prohibit MMDS applicants from proposing transmitter sites within these location areas,  x=a reader could not reasonably understand a subsequent reminder to preexisting rules that also  xgoverned applications, to rescind the very restrictions that the public notice was intended to announce. x   x10. With respect to petitioners' allegations that FCC engineering staff indicated it was  xpermissible to file within 50 miles of pending, previously proposed adjacent channel stations,  X" - xkeven assuming, for the sake of argument, that such statements were made by the staff, they  xneither bind the Commission nor prevent us from enforcing Commission regulations. The  x.Commission has specifically held that parties who rely on staff advice or interpretations do so  X - xat their own risk. See, e.g., AAT Electronics Corp., 53 RR 2d 1215, 122526 (1983), aff'd, P&R  X - x/Temmer v. FCC, 743 F.2d 918, 931 (D.C. Cir. 1984). When the staff advice is contrary to the  xCommission's rules, the Commission may still enforce its rules, despite any reliance by the  X- x!public. See Malkan FM Associates v. FCC, 935 F.2d 1313 (D.C. Cir. 1991) (affirming the  x.Commission's decision to enforce its rules despite earlier staff statements giving an erroneous  x.interpretation of the rules at official seminar). Here, the official pronouncement of the location  XY- xZrestrictions was published in the 1988 Public Notice, which stated that applications could not be  XD- x^filed in the areas noted above. See supra  6. These requirements were clear and the  X/-Commission reasonably expected that applicants would turn to those requirements for guidance.   X-  x11. Thus, because the 1988 Public Notice opened the filing window only for applications  xLfiling further than 50 miles from applications authorized or pending on April 19, 1988, and more  xthan 15 miles from a statistical area boundary which had applications pending on April 19, 1988,  xby not adhering to these parameters, the Astoria applicants filed on dates not designated by the  X- x1Commission for filing. See 47C.F.R. 21.901(d)(4). Petitioners can claim no surprise  xconcerning the important burden placed on applicants to carefully select the proposed location  X{- xof an MMDS station. In addition to the clear language in the 1988 Public Notice, the  x!Commission stressed, as early as 1980, the importance of compliance with site selection  XO- xrequirements for MDS stations. In R.L. Mohr, 77 FCC 2d 30 (1980), the Commission explained  xKthat "given the rather severe shortage of frequencies in these lower more desirable bands, . . . [t]o  X#- xbe able to use these frequencies [for MDS] imposes a cost, a cost in terms of more careful  X- xengineering and site location, and perhaps in use of more sophisticated equipment than would  X- xotherwise be required." Id. at 37 (emphasis added). Therefore, petitioners had full notice of the  xnecessity to comply with the location restrictions. Because petitioners chose to disregard the clear  X!- xdirective announced in the 1988 Public Notice, petitioners' applications were properly returned as unacceptable for filing.  X$-  Nx12. Interference Protection. Section 21.902(b) requires an MMDS applicant to engineer  xits proposed station to provide at least 45 dB of interference protection within the protected"s%,-(-(ZZ $"  X- xiservice areas| yOy-ԍ Protected service areas for MMDS 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  x=of interference protection within the protected service area of all other previously proposed or  X- xauthorized adjacent channel stations.X {O- xԍ MMDS applicants have been consistently required to comply with  21.902(b). In Family Entertainment  {O- xNetwork, Inc., 9 FCC Rcd 566, 568 (Dom. Fac. Div. 1994), the Domestic Facilities Division returned as unacceptable  x;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 -  >Xx[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.   x13. At the time the Astoria applications were filed, in order to demonstrate compliance  xwith Section 21.902(b), and so mutual exclusivity determinations could be made, applicants were  xrequired to include with the application an analysis of the potential for harmful cochannel  xMinterference with any authorized or previously proposed station if the applicant's proposed  x<transmitting antenna had an unobstructed electrical path to any part of the protected service area  xof any other authorized or previously proposed cochannel station, or if the applicant's proposed  x!transmitter was within 50 miles of the transmitter coordinates of any other authorized or  x/previously proposed cochannel station. 47C.F.R.21.902(c)(1)(1989). In addition, Section  x21.902(c)(2) required that an MMDS applicant include with the application an analysis of the  xpotential for harmful adjacent channel interference if the applicant's proposed transmitting  xKantenna had an unobstructed electrical path to any part of the protected service area of any other  X- xauthorized or previously proposed adjacent channel station. 47 C.F.R. 21.902(c)(2)(1989). The  xLapplicant was also required to show what steps were taken to comply with the requirements of  xiSection21.902(a), which required MMDS applicants, licensees, and conditional licensees, to make  xLexceptional efforts to avoid harmful interference to other users and to avoid blocking potential  X4- xadjacent channel stations in the same area and cochannel stations in nearby areas. 47 C.F.R. 21.902(a)(1989).   x14. 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  xMMDS, 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- x=more closely than ordinarily allowed and require careful planning and engineering. See MMDS  X~- xjAllocation Order, 94 FCC 2d at 1264. Thus, the Commission stressed "we expect applicants to  xaddress this problem in their applications. Those applications that do not contain an analysis of  xhow the applicant intends to avoid cochannel interference in adjacent areas will not be considered  X;- xacceptable for filing." Id.; see also 47 C.F.R. 21.902(b)(c). There has been a series of cases"; ,-(-(ZZ{"  xyemphasizing the importance of interference protection showings in MMDS applications for the  X- xyE or F channels.  {Ob- 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  {O- 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  {O- 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 interference analysis, which demonstrates lack of harmful  X- xKinterference, is considered a basic requirement in determining the acceptability of an application."  X-Family Entertainment, 9 FCC Rcd at 567.  X-   x15. In addition to filing in an area not open for filing, see supra  11, we also conclude  x=that the Astoria applications were properly returned for failure to comply with our interference  Xe- xiprotection requirements. In our de novo review on reconsideration, we have determined that each  xAstoria applicant failed to file required interference studies for: (1) one 1983 subsequently  X9- xauthorized MMDS station, WMH713 at Astoria, Oregon;&9  yOt- xZ#X\  P6G;ɓP#э While WMH713 was subsequently forfeited, at the time the Astoria applications were filed, the applicants were required by 47 C.F.R. 21.902(c) to include an interference analysis for this station. & and (2) one pending 1983 proposed station, Application. File No. 390CMP83 at Astoria, Oregon.   "x16. We find that petitioners' arguments attempting to explain the Astoria applicants'  xifailure to file required interference studies are unpersuasive. Specifically, petitioners contend that  xan interference analysis was unnecessary for the 1983 adjacent channel proposed station,  xApplication File No. 390CMP83, as it was located at the samesite as petitioners. However,  xat the time of petitioners' application filings, Section 21.902(c)(2) did not excuse applicants from  X- xsubmitting interference analyses for samesite applications. yO - xԍ Subsequent to the return of petitioners' applications, the Commission announced that a onesentence statement  {O - xproposing that the stations be collocated would suffice for purposes of interference analysis requirements. See  xAmendment of Parts 21, 43, 74, 78 and 94 of the Commission's Rules Governing Use of the Frequencies in the 2.1  xand 2.5 GHz Bands Affecting: Private OperationalFixed Microwave Service, Multipoint Distribution Service,  xKMultichannel Multipoint Distribution Service, Instructional Television Fixed Service, and Cable Television Relay  {O#- xiService, 5 FCC Rcd 6410, 6413 (1990). However, even if we applied this standard to the Astoria applicants, the  xapplications still failed to satisfy the interference requirements since the applicants did not propose to collocate with  xthe 1983 proposed station. Nor did the Astoria applicants meet the service requirements, which remained unchanged,  {OX&-by serving the 1983 proposed samesite station. See infra  20.  Therefore, submission of an  xinterference study for Application File No. 390CMP83 was mandated by the Commission's"j,-(-(ZZ," rules.   x17. Furthermore, we reject petitioners' assertions concerning lack of notice of pending  xpreviously proposed MMDS stations as not comporting with the evidence. Petitioners contend  xthat the Commission maintains two internal staff listings: (1) a "short inventory" which lists only  xjapplications or stations upon which the Commission has taken recent action; and (2) a "lottery  xKlosers inventory" which lists all pending proposed and authorized stations. Petitioners allege, by  xway of an affidavit from a paralegal who utilized Commission information, that only the "short  x.inventory" is routinely provided to the public. Moreover, petitioners contend, even when the  x"lottery losers inventory" is requested, only outdated copies are provided for public review. In  X - xparticular, the paralegal's affidavit alleges that on one occasion, after petitioners applications had  X - xbeen returned, he requested a copy of the "lottery losers inventory" and was provided with an FCC internal staff listing over two years old.  X -  x18. Notice of pending proposed and authorized MMDS stations is provided by public  xnotice as well as FCC internal staff listings. Here, petitioners failed to file a required interference  x=analysis for Application File No. 390CMP83, which appeared on public notice on September  x30, 1988, over a year and a half prior to petitioners' applications' filing dates. Copies of the  Xf- xCommission's public notices are available to the public at the time of issuance. See 47 C.F.R.  x 0.443. In addition, previously released notices are available for public inspection at the  X:-Commission's Press and News Media Division. Id.   x19. With respect to petitioners' allegations concerning the availability of FCC internal  xstaff listings, we note that the evidence submitted by petitioners does not support their assertions.  xNamely, the paralegal's affidavit along with copies of the Commission listings indicate that  X- x[petitioners had actual notice of Application File No. 390CMP83 and WMH713. Specifically,  xthe paralegal's affidavit states that on or about March 13, 1990, he reviewed and photocopied the  xFebruary 28, 1990 FCC internal staff listing which listed both of the abovenoted then proposed  xstations. This listing was provided to petitioners' paralegal by Commission staff. Petitioners fail  xLto explain why they did not consider this information when they filed their applications. All of  xthe petitioners had ample opportunity to act on this information. Specifically, the Astoria  x.applicants which originally filed applications on March 5, 1990, subsequently submitted major  xamendments to their applications on April 19, 1990, approximately a month after having actual  X- xknowledge of the proposed stations.A {O -ԍ  See supra note 3.A The Astoria applicant which filed its original application  x[on March 23, 1990, approximately ten days after receiving actual notice, also submitted a major  X- xamendment to its application on April 19, 1990, which failed to consider the proposed stations.AZ {O#-ԍ See supra note 4.A  xLastly, the Astoria applicants filing on May 18, 1990, had approximately two months of actual  X!- xnotice of the proposed stations.A! {OT'-ԍ See supra note 5.A We find the paralegal's isolated, postreturn allegation of"! ~,-(-(ZZ "  xoutdated information is undercut by the affidavit's earlier admissions of information provided  X- xprior to petitioners' filing or amended filing dates. Since petitioners here failed to make the  xirequired showings regarding interference protection, their applications cannot be characterized as  X- xcomplete or in substantial compliance with the Commission's rules. New Channels, 57 RR 2d  xat 1602. Therefore, due to the lack of required interference analyses, the Astoria applications were unacceptable for filing and were properly returned.  Xa-  x20. Notice to Affected Parties. In addition, we find that each of the Astoria applicants  XJ- xfailed to serve copies of the required interference analyses at the time of their application  X5- xzfilings,5 yO - xԍ Petitioners' postreturn attempt to serve WMH713 is not relevant to their failure to do so at the time their applications were filed as required by the Commission's rules. as mandated by 47 C.F.R. 21.902(g), on any applicants, conditional licensees and  xlicensees for stations stipulated to be studied by Section 21.902(c), thus depriving affected parties  X - xof notice and opportunity to be heard. In Edna Cornaggia, 8 FCC Rcd 5442, 5444 (Dom. Fac.  xDiv. 1993), 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.(#  xKThus, these applications were also properly returned as unacceptable for filing due to their failure to comply with the service requirements of 47 C.F.R. 21.902(g). "IV. CONCLUSION   ]x21. In view of all the foregoing considerations, we affirm the staff's return of the Astoria  x-applications under consideration in this order. Reconsideration is not justified and reinstatement of the applications is not warranted.   {x22. Accordingly, IT IS ORDERED, that the reconsideration petitions filed by the Astoria  X-applicants ARE HEREBY DENIED. x23. IT IS FURTHER ORDERED, that the staff of the Video Service Division shall send " ,-(-(ZZ"  xcopies of the decision to the authorized representative for the petitioners by certified mail, return receipt requested. x` `   X` hp x (#%'0*,.8135@8: