******************************************************** NOTICE ******************************************************** This document was converted from WordPerfect to ASCII Text format. Content from the original version of the document such as headers, footers, footnotes, endnotes, graphics, and page numbers will not show up in this text version. All text attributes such as bold, italic, underlining, etc. from the original document will not show up in this text version. Features of the original document layout such as columns, tables, line and letter spacing, pagination, and margins will not be preserved in the text version. If you need the complete document, download the WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of ) ) GMD MICROCABLE PARTNERSHIP ) File No. 52109-CM-P-90 ) SAHARA WIRELESS TV PARTNERSHIP ) File No. 52111-CM-P-90 ) For Authority to Construct and Operate a) Multipoint Distribution Service Station on) the E Channels at Fort Stockton, Texas) ORDER ON RECONSIDERATION Adopted: April 20, 1998 Released: April 21, 1998 By the Assistant Chief, Video Services Division: I. INTRODUCTION 1. The Video Services Division has before it two petitions for reconsideration, pursuant to 47 C.F.R.  1.106(a), of the return of applications for GMD Microcable Partnership ("GMD") and Sahara Wireless TV Partnership ("Sahara"), which were filed with the Commission on May 18, 1990, for authority to construct and operate a Multichannel Multipoint Distribution Service ("MMDS") station on the E channels at Fort Stockton, Texas. A review, by Commission staff, of the Fort Stockton applications revealed that the applications were unacceptable for filing. Because these petitions raise the same issues, their combined consideration is the most efficient use of Commission resources; hence, these Fort Stockton petitions will be considered in this single order. II. BACKGROUND 2. The Fort Stockton applications were returned, pursuant to 47 C.F.R.  21.20, on April 28, 1993, by individual return notification letters which stated that the applicants: (1) filed past the cut-off period established in 47 C.F.R.  21.31 or 21.914; (2) proposed a transmitter site in an area not open for filing, pursuant to 47 C.F.R.  21.901(d)(4), as the applicants did not meet the criteria established in Public Notice, Common Carrier Bureau Opens Filing Period For Multichannel Multipoint Distribution Service Applications, 3 FCC Rcd 2661 (Comm. Car. Bur. 1988) ("1988 Public Notice") which specifically states that an applicant may not file in a geographic area of an authorized MMDS station or pending MMDS application; and (3) failed to meet the requirements for performance of interference analysis as required by 47 C.F.R.  21.902 due to failure to serve all affected parties pursuant to 47 C.F.R.  21.902(g) and failure to consider all previously proposed or authorized MMDS or Instructional Television Fixed Service ("ITFS") stations pursuant to 47 C.F.R.  21.902(c) and/or 21.902(i). In their May 28, 1993 petitions for reconsideration, GMD and Sahara proffer arguments concerning the cut-off period for their applications; the location restrictions announced in the 1988 Public Notice; and their obligation to submit, with their applications, required interference analyses and to serve these studies upon required parties. III. DISCUSSION 3. Because we find dispositive petitioners' failure to submit required interference showings with their applications and to give notice, by service of these studies, to the parties required to be studied, it is unnecessary to address petitioners' other arguments. See infra  7. As discussed in detail below, interference analyses are necessary at the time of application filing due to the extensive planning and engineering involved in the MDS licensing process. In addition, service upon affected parties, as defined by Section 21.902(g), is provided for in the Commission's rules 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 petitioners' arguments concerning other deficiencies cited in their return letters, the Fort Stockton applications were still deficient due to the applicants' failure to comply with the requirements of Section 21.902. 4. 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 areas of all other authorized or previously proposed cochannel stations and at least 0 dB of interference protection within the protected service area of all other previously proposed or authorized adjacent channel stations. 47 C.F.R.  21.902(b)(3)-(4). MDS applicants are required to demonstrate these protections in interference studies submitted with their applications. 5. At the time the Fort Stockton 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. 47 C.F.R.  21.902(c)(1) (1989). In addition, Section 21.902(c)(2) required that an MDS 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.  21.902(c)(2) (1989). The applicant was also required to show what steps were taken to comply with Section 21.902(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 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 more closely than ordinarily allowed and require careful planning and engineering. See Amendment 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 Service and the Private Operational Fixed Microwave Service, 94 FCC 2d 1203, 1264 (1983) ("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 acceptable for filing." MMDS Allocation Order, 94 FCC 2d at 1264; see also 47 C.F.R.  21.902(b)-(c). There has been a series of cases emphasizing the importance of interference protection showings in MDS applications for the E or F channels. "[T]he filing of an interference analysis, which demonstrates lack of harmful interference, is considered a basic requirement in determining the acceptability of an application." Family Entertainment, 9 FCC Rcd at 567. 7. In a de novo review on reconsideration, we have determined that the Fort Stockton applications were properly returned for failure to comply with our interference protection requirements, set forth at Section 21.902(c), by failing to demonstrate the lack of harmful interference to previously proposed and authorized stations required to be studied. Specifically, petitioners failed to file interference studies for: (1) one 1983 previously proposed MMDS cochannel station, which had an application pending on May 18, 1990, the filing date of the Fort Stockton applications and (2) four post-1983 previously proposed MMDS cochannel stations which proposed the same site as petitioners and had applications pending on the filing date of the Fort Stockton applications. 8. Petitioners contend that a post-return review confirmed their original interference analysis that no previously proposed or authorized MMDS stations were within 50 miles or the line of sight of their proposed site, except for proposed collocated stations. Petitioners assert that interference studies for previously proposed stations, located at the same site as petitioners, were not required since these had not appeared on public notice. Moreover, petitioners allege, Commission engineering staff advised petitioners' attorney that interference studies of same-site adjacent channel applications were unnecessary. In addition, petitioners contend that their applications had already passed Commission "muster" by appearing on public notice as acceptable for filing. Petitioners also argue that various parties filed 43 collocated adjacent channel applications which contained "parallel" interference showings (that no facilities existed within 50 miles of the proposed site) and were found acceptable for filing. These applications were placed in a lottery and one was eventually granted. Therefore, petitioners contend, if these 43 applications could pass Commission muster, the Commission should not have returned petitioners' applications. Lastly, petitioners assert, since there were no authorized or previously proposed stations required to be studied, there were no required parties to serve. Thus, petitioners state, their applications should be reinstated. 9. At the time of their application filings, the Fort Stockton applicants failed to submit required interference analyses for pending previously proposed stations which had appeared on prior FCC internal staff listings. For example, petitioners failed to submit an interference study for the pending previously proposed 1983 cochannel station of MDA, located a mere 4.90 miles from petitioners' proposed site. See supra note 9. This Fort Stockton application appeared most recently prior to petitioners' filing date on the May 17, 1990 FCC internal staff listing. Therefore, given petitioners' failure to file interference analyses, at the time of their application filings, for this 1983 MDA application which was listed on FCC internal staff listings, we find that even apart from any failure of petitioners to file interference studies for proposed same-site stations, petitioners did not comply with Section 21.902(c). 10. Regarding petitioners' failure to submit interference studies for pending previously proposed same-site stations, we find petitioners' arguments unpersuasive. With respect to petitioners' assertion that analyses were not required because these stations had not appeared on public notice, the Commission's rules do not state that interference studies need not be performed if the application has not appeared on public notice. As noted previously, Part 21 rules required interference studies for any cochannel authorized or previously proposed station within 50 miles of their proposed site or for which they had an unobstructed electrical path, and for any adjacent channel previously proposed or authorized station for which an unobstructed electrical path existed. 47 C.F.R.  21.902(c)(1)-(2). The Commission has stated, in response to a suggestion that proposals to collocate adjacent channel stations be exempt from interference studies between the two stations, that the interference analysis requirement is satisfied with a "one-sentence statement that the stations will be collocated." In re Amendment of Parts 21, 43, 74, 78, and 94 of the Commission's Rules Governing Use of the Frequencies in the 2.1 and 2.5 GHz Bands Affecting: Private Operational- Fixed Microwave Service, Multichannel Multipoint Distribution Service, Instructional Television Fixed Service, and Cable Television Relay Service, 5 FCC Rcd 6410, 6413 (1990). The Commission noted that this suggestion was already included in the Commission's rules. Id. at 6412. Here, however, the Fort Stockton applicants did not include a one-sentence statement proposing to collocate with the previously proposed adjacent channel stations. Nor did the Fort Stockton applicants submit interference studies for the previously proposed cochannel stations. See supra  7. Petitioners failed even to acknowledge the existence of these pending previously proposed adjacent channel and cochannel stations. Thus, petitioners did not satisfy the interference analysis requirements for these stations. 11. As for petitioners' allegations that Commission engineering staff stated it was unnecessary to file interference studies for collocated adjacent channel facilities, we note that even assuming, for the sake of argument, that such statements were made, they neither bind the Commission nor prevent us from enforcing Commission regulations. The Commission has specifically held that parties who rely on staff advice or interpretations do so at their own risk. See, e.g., AAT Electronics Corp., 53 RR 2d 1241, 1225-26 (1983), aff'd, P&R Temmer v. FCC, 743 F.2d 918, 931 (D.C. Cir. 1984). When staff advice is contrary to the Commission's rules, the Commission may still enforce its rules, despite any reliance by the public. See Malkan FM Associates v. FCC, 935 F.2d 1313 (D.C. Cir. 1991) (affirming Commission's decision to enforce its rules despite earlier staff statements giving erroneous interpretation of the rules at official seminar). Here, the official pronouncements of the interference analysis requirements were published in the Commission's regulations at 47 C.F.R.  21.902(c)(1)-(3). These requirements are clear and it is reasonably expected that applicants will turn to these regulations for guidance. 12. We also reject petitioners' assertions regarding the interference showings of 43 collocated adjacent channel applications, which were placed in a lottery, as unsubstantiated assertions and not relevant as to whether petitioners complied with their interference analysis obligations. Petitioners claim that the 43 collocated adjacent stations contained "parallel" interference showings that no MMDS stations were located within 50 miles of the Fort Stockton proposed site, but petitioners fail to provide any support for this assertion. A bald conclusion, without any offer of proof or documentary support, has no probative value. See Jim Bolton, 2 FCC Rcd 3207 (Comm. Car. Bur. 1987). Additionally, in our de novo review, supra  7, we have found, based on petitioners' application filing dates and transmitter site, that they were required to file interference studies for pending previously proposed 1983 and post-1983 stations. Whether the collocated adjacent channel applicants had to file interference analyses depends on their particular filing dates. Moreover, even if we assume that the collocated adjacent channel applicants were required to perform interference studies and failed to do so, as petitioners' assert, this erroneous and unexplained staff action, is not Commission precedent. See e.g., North Texas Media, Inc. v. FCC, 778 F.2d 28, 33 (D.C. Cir. 1985) ("The initial improvident grant of a [short-spacing] waiver . . . now described as an error, does not deprive the agency of authority to require future applicants to meet certain standards, in order to obtain such a waiver); Quinnipiac College, 8 FCC Rcd 6285, 6286 (1993); Walter Faber, 4 FCC 5492, 5493 (1989), recon denied, 6 FCC Rcd 3601 (1991), aff'd mem., Faber v. FCC, 962 F.2d 1076 (D.C. Cir. 1992). The Commission is not bound by any alleged staff errors and, hence, the interference showings of the 43 collocated adjacent channel stations have no relevance to the inference analyses that the Fort Stockton applicants were required to perform. 13. Furthermore, we find the fact that petitioners' applications had been preliminarily accepted for filing unpersuasive. The August 29, 1990 public notice announcing the Fort Stockton applicants as accepted for filing qualified this initial acceptance by stating that "[t]he Commission reserves the right to return any of these applications, if upon further examination, it is determined they are defective or not in substantial compliance with the Commission's rules. (See 47 C.F.R.  21.20 and 21.26)." Section 21.20 sets forth the standards for acceptance for filing of an MMDS application. See supra note 3. Section 21.26 explicitly provides that "[n]either the assignment of a file number nor the listing of the application on public notice as accepted for filing indicates that the application has been found acceptable for filing or precludes the subsequent return or dismissal of the application if it is found to be defective or not in substantial compliance with the Commission's rules." 47 C.F.R.  21.26. Therefore, the mere statement that the Fort Stockton applications were accepted for filing does not prevent the Commission from returning the applications. 14. Thus, due to the failure to file required interference analyses for pending previously proposed 1983 and post-1983 stations, we find that the Fort Stockton applicants failed to comply with Section 21.902(c). "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." 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 Operational-Fixed Microwave Service, 98 FCC 2d 68, 93 (1984). Accordingly, the Fort Stockton applications were unacceptable for filing and properly returned. 15. Notice to Affected Parties. In addition to submitting required interference analyses to the Commission, an MDS applicant also must serve each required interference study upon the previously proposed or authorized station applicant, conditional licensee or licensee required to be studied, and submit a list identifying each applicant, conditional licensee, and licensee served. 47 C.F.R.  21.902(g). The Fort Stockton applicants failed to serve, at the time of filing, any copies of the required interference analyses, as mandated by Section 21.902(g), on any of the required applicants, conditional licensees and licensees for stations stipulated to be studied by Section 21.902(c), thus depriving affected parties of notice and opportunity to be heard. In Edna Cornaggia, 8 FCC Rcd at 5444, the return of a modification application was upheld for failure to comply with Section 21.902(g): The 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 analysis 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, these 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). IV. CONCLUSION 16. In view of all the foregoing considerations, we affirm the staff's return of the GMD Microcable Partnership and Sahara Wireless TV Partnership applications under consideration in this order. Reconsideration is not justified and reinstatement of the applications is not warranted. 17. Accordingly, IT IS ORDERED, that the reconsideration petitions filed by the Fort Stockton applicants ARE HEREBY DENIED. IT IS FURTHER ORDERED, that the staff of the Video Services Division shall send copies of the decision to the authorized representative for the petitioners by certified mail, return receipt requested. FEDERAL COMMUNICATIONS COMMISSION Charles E. Dziedzic Assistant Chief, Video Services Division Mass Media Bureau