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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 the Matter of ) ) Ten Applications ) File Nos. 50558-CM-P-90; ) 50568-CM-P-90; 50583-CM-P-90; For Authority to Construct and Operate)50613-CM-P-90; 50769-CM-P-90; New Multipoint Distribution ) 51984-CM-P-90; 51985-CM-P-90; Service Stations on the F ) 52113-CM-P-90; 52114-CM-P-90; Channels at Astoria, Oregon ) 52212-CM-P-90 ORDER ON RECONSIDERATION Adopted: April 20, 1998 Released: April 22, 1998 By the Assistant Chief, Video Services Division: I. INTRODUCTION 1. The Video Service Division has before it petitions for reconsideration pursuant to 47 C.F.R.  1.106(a), of the return of ten applications for authority to construct and operate a Multichannel Multipoint Distribution Service ("MMDS") station on the F channels at Astoria, Oregon. Because these petitions raise common issues, their collective consideration in this single order is the most efficient use of Commission resources. As discussed in detail below, we conclude that the applications were properly returned. Accordingly, the petitions for reconsideration are denied. II. BACKGROUND 2. These applications for the F-group channels proposed the same transmitter site at Astoria, Oregon ("Astoria applications") and were filed with the Commission, on March 5, 1990, March 23, 1990, and May 18, 1990. The Astoria applicants that filed in March 1990 amended their applications, pursuant to 47 C.F.R.  21.23(a), on April 19, 1990. These amendments, inter alia, changed the applicants' antenna polarization and, hence, pursuant to 47 C.F.R.  21.23(c), were major amendments. Therefore, as set forth at 47 C.F.R.  21.31(e), these Astoria applicants were classified as newly filed applications with an application filing date of April 19, 1990, the date the major amendments were filed. 3. A review by Commission staff of the Astoria applications, revealed that the applications were unacceptable for filing. Specifically, four of the Astoria applicants were returned on May 31, 1990, on the grounds that the market was unavailable for filing due to a previously proposed 1983 Astoria applicant. Another Astoria applicant was returned on June 19, 1990, due to failure to consider a previously proposed 1983 adjacent channel Astoria applicant. The remaining five Astoria applicants were returned on August 28, 1990, and November 7, 1990, because of inadequate interference analysis pursuant to 47 C.F.R.  21.902 due to failure to consider all previously proposed Instructional Television Fixed Service ("ITFS") and MMDS stations. 4. In accordance with their respective return dates, the Astoria applicants filed timely petitions for reconsideration for the ten returned applications. On reconsideration, all of the Astoria petitioners have self-identified the subsequently authorized 1983 cochannel station, WMH713, Application File No. 3265-CM-P-83, for Astoria as the reason their applications were returned. Petitioners raise various arguments to support their contention that the Astoria market was open for filing. In addition, the Astoria petitioners included information purporting to show that their post-return service on WMH713 was returned by the U.S. Postal Service stamped "Attempted, Unknown." Lastly, all of the petitioners assert that they complied with the Commission's interference analysis requirements. We will examine the Astoria petitioners' contentions in full below. III. DISCUSSION 5. Availability of the Astoria Market for Filing. In order to be acceptable for filing MMDS applications must be filed on or before the applicable cut-off date for mutually exclusive applications. By way of background, the Commission initially authorized the filing of MMDS applications on the E or F channels on one filing date, September 9, 1983. 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, 1262-1266 (1983) ("MMDS Allocation Order"); Establishment of Multi-Channel Systems, 48 Fed. Reg. 33,873 (July 26, 1983), as corrected, 48 Fed. Reg. 34,746 (August 1, 1983). If an MMDS application is mutually exclusive with a 1983 application or authorized station, the applicable cut-off date is the one-day filing date designated for those applications, September 9, 1983. Establishment of Multi-Channel Systems, 48 Fed. Reg. 33,873, as corrected, 48 Fed. Reg. 34,746. Section 21.31(a) of the Commission's rules provides the standard for the determination of mutual exclusivity. The Commission considers applications to be mutually exclusive if their conflicts are such that the grant of one application would effectively preclude by reason of harmful electrical interference, or other practical reason, the grant of one or more of the other applications. The Commission presumes "harmful electrical interference" to mean interference which would result in a material impairment to service rendered to the public despite full cooperation in good faith by all applicants or parties to achieve reasonable technical adjustments which would avoid electrical conflict. 47 C.F.R.  21.31(a). After the initial MMDS application filing date of September 9, 1983, no filing period was again designated until 1988. 6. In accordance with 47 C.F.R.  21.901(d)(4), the Commission then designated that MMDS applications could be submitted for filing commencing April 20, 1988, but only for locations which were: (1) farther than 50 miles from any proposed location of an MMDS application pending on April 19, 1988, or an authorized station; and (2) farther than 15 miles from the boundary of a statistical area for which there were applications pending on April 19, 1988. 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"). These location restrictions were announced in the first paragraph of the 1988 Public Notice and twice repeated on the first page. In addition, it was explicitly stated, in the first paragraph, "We do not anticipate granting any waivers of this location requirement. Applications that fail to comply with this requirement will be dismissed as unacceptable for filing." 1988 Public Notice, 3 FCC Rcd at 2661. It was also emphasized twice that applications filed in violation of the location requirements would be returned as unacceptable for filing. Id. 7. Despite these clear directives, petitioners proposed a transmitter site in violation of the location restrictions of the 1988 Public Notice. Specifically, petitioners proposed a transmitter site within 50 miles of the following two 1983 applications pending at the time of the Astoria filings, Application File Nos. 390-CM-P-83, located at the same site as petitioners' and 3265-CM- P-83, WMH713, located a mere 18.24 miles from petitioners' proposed site. Moreover, we conclude that the Astoria applications were mutually exclusive with and cut-off by the 1983, subsequently authorized cochannel station, WMH713. See 47 C.F.R.  21.31; see also Establishment of Multi-Channel Systems, 48 Fed. Reg. 33,873, as corrected, 48 Fed. Reg. 34,746. Thus, the above-referenced applications were properly returned as unacceptable for filing pursuant to Section 21.31(d), which states in part: "An application otherwise mutually exclusive with one [or] more previously filed applications, but filed after the appropriate [cut-off] date . . . will be returned without prejudice . . . ." 47 C.F.R.  21.31(d). 8. Petitioners contend that since WMH713 did not appear on public notice as accepted for filing until May 23, 1990, after all of the petitioners had filed their mutually exclusive applications, petitioners should be placed in a lottery with WMH713. Specifically, petitioners maintain that the 1988 Public Notice did not explicitly exempt previously filed 1983 applicants from mutual exclusivity groupings with subsequently filed applications. According to petitioners, the 1988 Public Notice did not prohibit the filing of applications for sites within 50 miles of stations existing and pending on April 19, 1988. In particular, petitioners claim that in the 1988 Public Notice paragraph two, which prohibits the filing of applications for locations within 50 miles of stations existing or pending on April 19, 1988, and paragraph six, which quotes 47 C.F.R.  21.902 governing the filing of interference studies are in patent conflict. Also, petitioners assert, a literal interpretation of the 50-mile location restriction contained in the 1988 Public Notice would bar filings for adjacent channels for which a 1983 application had been filed, which, petitioners allege, Commission engineering staff acknowledged was not intended. Petitioners 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. 9. We find, however, that petitioners' assertions misconstrue the 1988 Public Notice and the Commission's rules. The 1988 Public Notice was specifically designed to protect 1983 proposed and authorized stations from mutual exclusivity and interference problems caused by subsequently filed applicants. Hence, the 1988 Public Notice restricted MMDS applicants from filing within the designated parameters of these proposed and authorized stations. As for the "contradiction" between the 1988 Public Notice and 47 C.F.R.  21.902, Section 21.902, in pertinent part, stated: The following interference studies, as appropriate, shall be included with each application: (1) An analysis of the potential for harmful co-channel 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 area of any other station(s) that utilize(s), or would utilize, the same frequency; or (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 . . . . 47 C.F.R.  21.902(c)(1) and (2) (1989). These interference analysis requirements were in addition to the location restrictions that were announced in the 1988 Public Notice. It is within this context that in the sixth paragraph on the second page, the 1988 Public Notice addresses the issue of interference studies by citing to Section 21.902 of the rules. As noted, supra, the 1988 Public Notice repeatedly stated that MMDS applicants could propose transmitter sites for locations which were further than 50 miles from any then authorized MMDS station or MMDS application pending on April 19, 1988. Therefore, in light of the clear intent of the 1988 Public Notice to prohibit MMDS applicants from proposing transmitter sites within these location areas, a reader could not reasonably understand a subsequent reminder to preexisting rules that also governed applications, to rescind the very restrictions that the public notice was intended to announce. 10. With respect to petitioners' allegations that FCC engineering staff indicated it was permissible to file within 50 miles of pending, previously proposed adjacent channel stations, even assuming, for the sake of argument, that such statements were made by the staff, 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 1215, 1225-26 (1983), aff'd, P&R Temmer v. FCC, 743 F.2d 918, 931 (D.C. Cir. 1984). When the 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 the Commission's decision to enforce its rules despite earlier staff statements giving an erroneous interpretation of the rules at official seminar). Here, the official pronouncement of the location restrictions was published in the 1988 Public Notice, which stated that applications could not be filed in the areas noted above. See supra  6. These requirements were clear and the Commission reasonably expected that applicants would turn to those requirements for guidance. 11. Thus, because the 1988 Public Notice opened the filing window only for applications filing further than 50 miles from applications authorized or pending on April 19, 1988, and more than 15 miles from a statistical area boundary which had applications pending on April 19, 1988, by not adhering to these parameters, the Astoria applicants filed on dates not designated by the Commission for filing. See 47 C.F.R.  21.901(d)(4). Petitioners can claim no surprise concerning the important burden placed on applicants to carefully select the proposed location of an MMDS station. In addition to the clear language in the 1988 Public Notice, the Commission stressed, as early as 1980, the importance of compliance with site selection requirements for MDS stations. In R.L. Mohr, 77 FCC 2d 30 (1980), the Commission explained that "given the rather severe shortage of frequencies in these lower more desirable bands, . . . [t]o be able to use these frequencies [for MDS] imposes a cost, a cost in terms of more careful engineering and site location, and perhaps in use of more sophisticated equipment than would otherwise be required." Id. at 37 (emphasis added). Therefore, petitioners had full notice of the necessity to comply with the location restrictions. Because petitioners chose to disregard the clear directive announced in the 1988 Public Notice, petitioners' applications were properly returned as unacceptable for filing. 12. Interference Protection. Section 21.902(b) requires an MMDS 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). MMDS applicants are required to demonstrate these protections in interference studies submitted with their applications. 13. At the time the Astoria applications were filed, in order to demonstrate compliance with Section 21.902(b), and so mutual exclusivity determinations could be made, 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 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 the requirements of 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). 14. 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 MMDS Allocation Order, 94 FCC 2d at 1264. 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." Id.; 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 MMDS 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. 15. In addition to filing in an area not open for filing, see supra  11, we also conclude that the Astoria applications were properly returned for failure to comply with our interference protection requirements. In our de novo review on reconsideration, we have determined that each Astoria applicant failed to file required interference studies for: (1) one 1983 subsequently authorized MMDS station, WMH713 at Astoria, Oregon; and (2) one pending 1983 proposed station, Application. File No. 390-CM-P-83 at Astoria, Oregon. 16. We find that petitioners' arguments attempting to explain the Astoria applicants' failure to file required interference studies are unpersuasive. Specifically, petitioners contend that an interference analysis was unnecessary for the 1983 adjacent channel proposed station, Application File No. 390-CM-P-83, as it was located at the same-site as petitioners. However, at the time of petitioners' application filings, Section 21.902(c)(2) did not excuse applicants from submitting interference analyses for same-site applications. Therefore, submission of an interference study for Application File No. 390-CM-P-83 was mandated by the Commission's rules. 17. Furthermore, we reject petitioners' assertions concerning lack of notice of pending previously proposed MMDS stations as not comporting with the evidence. Petitioners contend that the Commission maintains two internal staff listings: (1) a "short inventory" which lists only applications or stations upon which the Commission has taken recent action; and (2) a "lottery losers inventory" which lists all pending proposed and authorized stations. Petitioners allege, by way of an affidavit from a paralegal who utilized Commission information, that only the "short inventory" is routinely provided to the public. Moreover, petitioners contend, even when the "lottery losers inventory" is requested, only outdated copies are provided for public review. In particular, the paralegal's affidavit alleges that on one occasion, after petitioners applications had been returned, he requested a copy of the "lottery losers inventory" and was provided with an FCC internal staff listing over two years old. 18. Notice of pending proposed and authorized MMDS stations is provided by public notice as well as FCC internal staff listings. Here, petitioners failed to file a required interference analysis for Application File No. 390-CM-P-83, which appeared on public notice on September 30, 1988, over a year and a half prior to petitioners' applications' filing dates. 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. 19. With respect to petitioners' allegations concerning the availability of FCC internal staff listings, we note that the evidence submitted by petitioners does not support their assertions. Namely, the paralegal's affidavit along with copies of the Commission listings indicate that petitioners had actual notice of Application File No. 390-CM-P-83 and WMH713. Specifically, the paralegal's affidavit states that on or about March 13, 1990, he reviewed and photocopied the February 28, 1990 FCC internal staff listing which listed both of the above-noted then proposed stations. This listing was provided to petitioners' paralegal by Commission staff. Petitioners fail to explain why they did not consider this information when they filed their applications. All of the petitioners had ample opportunity to act on this information. Specifically, the Astoria applicants which originally filed applications on March 5, 1990, subsequently submitted major amendments to their applications on April 19, 1990, approximately a month after having actual knowledge of the proposed stations. The Astoria applicant which filed its original application on March 23, 1990, approximately ten days after receiving actual notice, also submitted a major amendment to its application on April 19, 1990, which failed to consider the proposed stations. Lastly, the Astoria applicants filing on May 18, 1990, had approximately two months of actual notice of the proposed stations. We find the paralegal's isolated, post-return allegation of outdated information is undercut by the affidavit's earlier admissions of information provided prior to petitioners' filing or amended filing dates. Since petitioners here failed to make the required showings regarding interference protection, their applications cannot be characterized as complete or in substantial compliance with the Commission's rules. New Channels, 57 RR 2d at 1602. Therefore, due to the lack of required interference analyses, the Astoria applications were unacceptable for filing and were properly returned. 20. Notice to Affected Parties. In addition, we find that each of the Astoria applicants failed to serve copies of the required interference analyses at the time of their application filings, as mandated by 47 C.F.R.  21.902(g), on any 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, 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 21. In view of all the foregoing considerations, we affirm the staff's return of the Astoria applications under consideration in this order. Reconsideration is not justified and reinstatement of the applications is not warranted. 22. Accordingly, IT IS ORDERED, that the reconsideration petitions filed by the Astoria applicants ARE HEREBY DENIED. 23. IT IS FURTHER ORDERED, that the staff of the Video Service 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