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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 re Application of ) ) STEVEN ERNEST ALLEN ) File No. 51069-CM-P-90 ) For Authority to Construct and Operate a) New Multipoint Distribution Service Station) on the F Channels at La Salle, Illinois) 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, pursuant to 47 C.F.R.  1.106(a), a petition for reconsideration filed by Steven Ernest Allen ("Allen") of the return, pursuant to delegated authority, of an application for authority to construct and operate a Multichannel Multipoint Distribution Service ("MMDS") station on the F channels at La Salle, Illinois. For the reasons discussed below, we deny the reconsideration petition. II. BACKGROUND 2. Allen filed the above-referenced application for a new MMDS station at La Salle, Illinois on April 25, 1990. A Commission staff review of the application revealed that the application was unacceptable for filing. Consequently, the application was returned by letter dated July 27, 1990, which stated that the applicant failed to include an interference study for Instructional Television Fixed Station ("ITFS") applicant, National Conference on Citizenship ("NCC"), Application File No. BPIF-840206EC. On August 16, 1990, the applicant filed a petition for reconsideration. On reconsideration, petitioner argues that he was unable to perform an interference analysis for the NCC application because he could not determine the ITFS applicant's exact plans for the station. Therefore, petitioner offers instead, on reconsideration, a no-objection letter from NCC. III. DISCUSSION 3. On our de novo review we find it dispositive that Allen failed to submit adequate, required MMDS interference studies with his application and to give notice, by service of these analyses, to the parties required to be studied. Therefore, although we also find that the stated reason for Allen's return was incorrect, it was harmless error nonetheless as the La Salle application was deficient and unacceptable for filing for the reasons stated above. See Greater Boston Television Corporation v. FCC, 444 F.2d 841, 851 (D.C. Cir. 1970), cert denied, 403 U.S. 923 (1971) (The court will not upset a decision because of errors that are not material, "there being room for the doctrine of harmless error."). As discussed below, interference analyses are necessary at the time of application filing due to the extensive planning and engineering involved in 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. Thus, Allen failed to comply with the requirements of Section 21.902. 4. Interference Protection. At the time Allen's application was filed, in order to demonstrate compliance with Section 21.902(b), and so that mutually exclusive determinations could be made, Section 21.902(c)(1) of the Commission's rules required that an MDS applicant 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). For adjacent channels, Section 21.902(c)(2) required that an MMDS applicant include with the application an analysis of the potential for harmful adjacent channel interference if the applicant's proposed transmitting antenna had an unobstructed electrical path to any part of the protected service area of any other authorized or previously proposed adjacent channel station. 47 C.F.R.  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 MMDS 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)(1989). 5. These interference showings are a significant requirement which the Commission has repeatedly emphasized. The Commission, in reallocating the E and F channels from ITFS to MMDS, did so with the understanding that certain adjacent channel interference problems might arise. The Commission also anticipated that some authorized cochannel stations would be spaced 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). Because petitioner failed to make the required showings regarding interference protection, his application cannot be characterized as complete or in substantial compliance with the Commission's rules. See New Channels Communications Inc., 5 RR 2d 1600, 1602 (1985). "In the processing of MDS station applications, the interference analyses required by 47 C.F.R. [ 21.902] are crucial." Dan S. Bagley, Jr., 7 FCC Rcd 4002, 4003 (Dom. Fac. Div. 1992). 6. Petitioner's application was properly dismissed for failure to comply with the Commission's interference protection requirements. In a de novo review, on reconsideration, we have determined that the La Salle application was 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 authorized and previously proposed stations required to be studied. Specifically, Allen failed to file interference studies for: (1) one 1983 subsequently authorized MMDS station; and (2) seven 1983 previously proposed MMDS stations which had applications pending on April 25, 1990, the filing date of the La Salle application. 7. With respect to petitioner's failure to file required interference analyses, we note that Allen failed to file analyses for authorized and previously proposed stations of which it had received adequate notice. For example, petitioner failed to file an interference study for the pending previously proposed MMDS station, Application File No. 10205-CM-P-83, for Peoria, Illinois, which was placed on public notice on April 25, 1986, four years prior to Allen's filing date. Petitioner does not identify what resources were utilized in his search of MMDS stations and applications. However, had Allen examined publicly available information, he would have discovered the authorized and proposed stations noted in  6, supra. Thus, given petitioner's failure to file interference studies for authorized and previously proposed stations listed on public notice and FCC internal staff listings, we find that Allen failed to comply with Section 21.902(c). 8. Therefore, since petitioner failed to file required interference studies, we conclude that Allen failed to comply with the Section 21.902 interference protection requirements and failed to demonstrate that he was technically qualified to be an MMDS licensee. 47 C.F.R.  21.900(a). See New Channels Communications, Inc., 57 RR 2d at 1602; see also Amendments of Parts 21, 74 and 94 of The Commission's Rules and Regulations with regard to Technical 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) ("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."). Thus, Allen's application was properly returned as unacceptable for filing. 9. Notice to Affected Parties. In addition to submitting the required interference analyses to the Commission, an MMDS applicant must also serve each required interference study upon all previously proposed or authorized station applicants, conditional licensees or licensees required to be studied, pursuant to 47 C.F.R.  21.902(g) of the Commission's rules. Here, we find that Allen failed to serve applicants, conditional licensees and licensees for stations required to be studied, thereby depriving affected parties of notice and an 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 47 C.F.R.  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, the La Salle application was also properly returned as unacceptable for filing based on petitioner's failure to comply with the service requirements contained in Section 21.902(g). IV. CONCLUSION 10. In view of all the foregoing considerations, we affirm the staff's return of the STEVEN ERNEST ALLEN application under consideration in this order. Reconsideration is not justified and reinstatement of the application is not warranted. 11. Accordingly, IT IS ORDERED, that the reconsideration petition filed by STEVEN ERNEST ALLEN IS HEREBY DENIED. 12. 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. FEDERAL COMMUNICATIONS COMMISSION Charles E. Dziedzic Assistant Chief, Video Services Division Mass Media Bureau