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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 ) ) WYSE WIRELESS PARTNERSHIP ) File No. 53047-CM-P-90 ) For Authority to Construct and Operate a) Multipoint Distribution Service Station on) the F Group Channels at La Grange, Texas) ORDER ON RECONSIDERATION Adopted: April 20, 1998 Released: April 22, 1998 By the Assistant Chief, Video Services Division: I. INTRODUCTION 1. The Video Services Division has before it a petition for reconsideration of the return, pursuant to 47 C.F.R.  1.106(a) on delegated authority, of the Wyse Wireless Partnership ("Wyse") application, which was filed with the Commission on July 2, 1990, for authority to construct and operate a Multichannel Multipoint Distribution Service ("MMDS") station on the F channels at La Grange, Texas. A preliminary review of the Wyse application, conducted by Commission staff, revealed that the application was unacceptable for filing. For the reasons discussed below, we deny the reconsideration petition. II. BACKGROUND 2. The Wyse application was returned, pursuant to 47 C.F.R.  21.20, on September 15, 1993, by a return notification letter which stated that the La Grange applicant: (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 it 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 a petition for reconsideration filed with the Commission on October 15, 1993, petitioner makes arguments concerning the location restrictions announced in the 1988 Public Notice as well as petitioner's obligation to submit, with its application, required interference analyses and to serve these studies upon the required parties. III. DISCUSSION 3. Because we find dispositive Wyse's failure to submit required interference showings with its application and to give notice, by service of these studies, to the parties required to be studied, it is unnecessary to address petitioner's other arguments. 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 required by the Commission's rules so that interested parties have actual notice of the proposed station and sufficient time to respond if they so desire. Therefore, even if we were to accept petitioner's arguments concerning other deficiencies cited in the applicant's return letter, the Wyse application was still deficient due to the applicant's failure to comply with the requirements of Section 21.902. 4. Interference Protection. Section 21.902(b) requires all MDS applicants to engineer their proposed stations 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 Wyse's application was 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); see 47 C.F.R.  21.902(a), (b), (d), (f). Section 21.901(d)(7) further required that each MDS application for the E or F channels include the applicant's written statement of the techniques that would be employed at the proposed station to avoid interference with operation of adjacent channel stations. The applicant was also required to show what steps were taken to comply with the requirements of 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.  21.901(d)(7). 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) (hereinafter MMDS Allocation Order). Thus, the Commission stressed that "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. Hence, "the 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 at 567. 7. In a de novo review, on reconsideration, we have determined that Wyse's application was properly returned for failure to comply with our interference protection requirements by failing to demonstrate the lack of harmful interference to previously proposed and authorized stations required to be studied pursuant to Section 21.902(c). Specifically, Wyse failed to file interference studies for: (1) one 1983 subsequently authorized MMDS station; and (2) 20 pending previously proposed post-1983 applications. 8. Petitioner does not attempt to explain its failure to file required interference studies except with respect to one station. Specifically, petitioner contends, on reconsideration, that a review of the Commission's records indicated, in addition to an E channel group application for La Grange for which Wyse proposed collocation, only one previously proposed station, Wagon Wheel Enterprises ("Wagon Wheel"), WLW844, Application File No. 15924-CM-P-83, for Deanville, Texas, was located within 50 miles of petitioner's proposed site. Wyse contends that it failed to perform and serve an interference study on the Wagon Wheel application because the Commission provided no notice, at the time of its application filing, of the 1983 Wagon Wheel application. In preparing the engineering work for the La Grange application, Wyse asserts that it relied on a then-current "inventory" of pending MMDS applications printed by the Commission as well as data bases prepared by independent private companies. Petitioner alleges that neither source listed the 1983 Wagon Wheel application. In support, petitioner attaches a declaration of the engineer who performed the engineering work, claiming to have "completed the original interference study for the La Grange, Texas MMDS application in October of 1990." In addition, petitioner's engineer reports using a Texas Rand McNally road map and noted that "[i]f a previously proposed filed location used a name not shown as a place name on the road map, it could have possibly been missed, however Deanville is clearly shown as a place name and would have been found if it were in the inventory at the time of the study." Therefore, petitioner argues fairness and due process require that petitioner be given an opportunity to amend, on reconsideration, its application to include an interference analysis for the 1983 Wagon Wheel application. 9. At the time of Wyse's application filing, Wyse had failed to submit required interference analyses for authorized or previously proposed stations which had appeared on public notice or FCC staff internal listings prior to the filing date of petitioner's application. For example, Wyse failed to submit an interference study for a pending previously proposed post- 1983 application, Application File No. 50342-CM-P-90, for Brenham, Texas, which was placed on public notice on May 2, 1990, two months prior to Wyse's filing date. Copies of the Commission's public notices are available to the public at the time of issuance. See 47 C.F.R.  0.443. In addition, previously released notices are available for public inspection at the Commission's Press and News Media Division. Id. Therefore, given petitioner's failure to file interference analyses, at the time of its application filing, for pending previously proposed and authorized stations listed on public notice or FCC internal staff listings, we find that even apart from any failure of Wyse to file an interference study for the Wagon Wheel station, petitioner did not comply with Section 21.902(c). 10. As for petitioner's use of the privately maintained electronic data base Dataworld, we note that this service was not the Commission's official MMDS on-line contractor at the time of the La Grange application filing, which petitioner freely acknowledges. The Commission has, over the years, announced, in public notices, third party entities which have contracted with the Commission to provide to the public on-line access to the MMDS data base. See, e.g., Public Notice, New Contractor for Online Public Access to Commission Data Bases, Mimeo. No. 10511 (Nov. 7, 1990). Petitioner did not use the Commission's official on-line contractor, but rather chose to rely on an unofficial non-Commission affiliated data base and did so at the risk that this unofficial data base was not accurate and complete. 11. Moreover, in addressing petitioner's contentions, we note that petitioner fails to provide many of the factual particulars upon which its allegations are based. In Jim Bolton, 2 FCC Rcd 3207 (Comm. Car. Bur. 1987 ), it was observed that a bald conclusion, without any offer of proof or documentary support, has no probative value. Specifically, petitioner asserts that in preparing the engineering work for the La Grange application, review of the "then-current (and only available) inventory of pending MMDS applications published by the Commission" did not reveal any cochannel or adjacent channel applicants within 50 miles of petitioner's proposed site. Petitioner does not, however, state which particular FCC internal staff listing was consulted. Similarly, petitioner declares on reconsideration that "[r]eview of the Commission's records" indicates that there were no then-pending F channel applicants and only one E channel applicant within 50 miles of petitioner's proposed site. Again, petitioner does not state which specific Commission records were reviewed, nor when the records were reviewed. Finally, we note that petitioner's engineer's declaration, attached to the reconsideration petition, does not provide any additional information in this regard; in fact the engineer reports completing "the original interference for the La Grange, Texas MMDS application in October of 1990" which is clearly erroneous as the La Grange application was filed on July 2, 1990, and, hence, the engineering work was performed sometime on or before July 2, 1990. 12. Petitioner's pledge, contained in its application, to take all measures necessary to avoid harmful interference including ceasing operations, does not excuse petitioner's failure to submit interference studies as required by Section 21.902. A pledge to comply with the requirements of Section 21.902(a) does not exempt any MDS applicant from compliance with the requirements of Sections 21.901(d)(7) or 21.902(c). The mandate that applicants submit interference analyses with their applications is a separate requirement from the good faith requirement 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 to resolve problems of potential interference . . . ." See also 47 C.F.R.  21.31. As noted earlier, interference analyses are necessary at the beginning of processing MDS applications, cannot be skipped, and are a prerequisite to the grant of a license. 13. Thus, due to Wyse's failure to file required interference analyses for pending previously proposed and authorized 1983 and post-1983 stations, we find that the La Grange applicant 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 (OFS), 98 FCC 2d 68, 93 (1984). Accordingly, Wyse's application was unacceptable for filing and properly returned. 14. Notice to Affected Parties. In addition to submitting the 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 La Grange applicant 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 5442, 5444 (Dom. Fac. Div. 1993) 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, this application was also properly returned as unacceptable for filing based on its failure to comply with the service requirements contained in Section 21.902(g). 15. Post-Return Waiver Request and Submission of Interference and Service Showings. On October 15, 1993, the same filing date as the petition for reconsideration, Wyse filed a petition for waiver and leave to amend its application to include a post-return interference study for the 1983 Wagon Wheel application as well as a certificate of service for the Wagon Wheel station, which was attached only to the reconsideration petition. Petitioner claims that its post- return interference analysis of the Wagon Wheel application demonstrates no harmful interference. Thus, petitioner argues, there is no public policy reason to dismiss its application and, hence, equity demands the reinstatement of petitioner's application. 16. Wyse, in a post-return waiver and amendment request, seeks a waiver of the Commission's freeze on the filing of most amendments to applications. See Notice of Proposed Rulemaking, PR Docket No. 92-80, 7 FCC Rcd 3266, 3270 n.35 (1992) (hereinafter 1992 NPRM). Due to the interconnectedness of this filing and Wyse's petition for reconsideration, identical filing dates, and substantially similar arguments, we will address petitioner's waiver and amendment petition. 17. We reject petitioner's post-return request for waiver of the 1992 NPRM's amendment filing freeze. Section 21.19 provides that applications seeking waiver of the Commission's rules must contain a statement of reasons sufficient to justify a waiver. A waiver will only be granted upon an affirmative showing that: (a) The underlying purpose of the rule will not be served, or would be frustrated, by its application in the particular case, and that grant of the waiver is otherwise in the public interest; or (b) The unique facts and circumstances of a particular case render application of the rule inequitable, unduly burdensome, or otherwise contrary to the public interest. Applicants must also show the lack of a reasonable alternative. 47 C.F.R.  21.19. "An applicant for waiver faces a high hurdle even at the starting gate. When an applicant seeks a waiver . . . it must plead with particularity the facts and circumstances which warrant such action." WAIT Radio v. FCC, 418 F.2d 1153, 1157 (D.C. Cir. 1969) (citing Rio Grande Family Radio Fellowship, Inc., v. FCC, 406 F.2d 664 (D.C. Cir. 1968) (per curiam)); see also David Laustsen, 3 FCC Rcd 2053, 2054 (Comm. Car. Bur. 1988) ("[A] request for waiver . . . must affirmatively demonstrate that application of the rules would frustrate the underlying purposes of the rule."). 18. We find that granting this waiver request would not serve the public interest. Nor do we believe that the facts and circumstances of the Wyse application are sufficiently unique so as to warrant a waiver of Section 21.902 which requires interference showings. As discussed previously, the interference analysis requirement is an imperative one which demands compliance at the time of the application. See MMDS Allocation Order, 94 FCC 2d at 1264, ("we expect applicants to address this problem [of potential interference] in their applications."); see also 4,330 Applications for Authority to Construct and Operate Multipoint Distribution Service Stations at 62 Transmitter Sites, 10 FCC Rcd 1335 (1994), aff'd mem, A/B Financial, Inc., et al. v. FCC, No. 95-1027 (D.C. Cir. Dec. 26, 1995) (per curiam). In addition, as noted earlier, service upon affected parties is required under the Commission's rules so that interested parties have actual notice of proposed stations. Here, we have found that even without regard to the Wagon Wheel application, Wyse had access to information necessary to prepare required interference analyses and serve these studies upon the required parties, yet, petitioner failed to include, with its application, required interference studies and certificates of service. See supra  7. Hence, even if we did accept petitioner's post-return showings, petitioner's application would still be unacceptable for filing. 19. Therefore, we find that acceptance of petitioner's post-return interference and service showings regarding the Wagon Wheel station is not warranted. See Edna Cornaggia, 8 FCC Rcd at 5444, n.7 ("[I]t is no longer possible to amend an application which has already been dismissed. . . ."); Earl V. Levels, 8 FCC Rcd 5506 (Dom. Fac. Div. 1993) (curative amendment filed with petition for reconsideration, attempting to supply a missing interference showing and other missing information, not allowed); Marylan J. Benson, 7 FCC Rcd at 4669, n. 9 ("We reject Benson's contention that she should be permitted to file curative amendments and have her application reinstated nunc pro tunc, for further processing. We believe that the Division's initial return of the above-referenced Benson application as unacceptable for filing was correct. . . ."). IV. CONCLUSION 20. In view of all the foregoing considerations, we affirm the staff's return of the La Grange application under consideration in this order. Reconsideration is not justified and reinstatement of the application is not warranted. 21. Accordingly, IT IS ORDERED, that the reconsideration petition and waiver request filed by Wyse Wireless Partnership ARE HEREBY DENIED. 22. IT IS FURTHER ORDERED, that the staff of the Video Services Division shall send copies of the decision to the authorized representative by certified mail, return receipt requested. FEDERAL COMMUNICATIONS COMMISSION Charles E. Dziedzic Assistant Chief, Video Services Division Mass Media Bureau