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Thereafter, as part of its determination whether a grant of LILCO's application would serve"T ,>(>(ZZ;"  xDthe public interest, the Bureau considered the Applicants' assertions that LILCO's application did not meet  xthe Commission's Rules. Further, the Bureau returned the application to LILCO on November 24, 1992,  S' xwith a request for additional information related to the concerns raised by the Applicants. ( yO'ԍ The Application Return Notice stated:  e   ` ` X` hp x (#%'0*,.8135@8:(>(ZZ." that the height above average terrain analysis of the predicted contours was satisfactory as of the filing  xlof the application, and that the DHAAT analysis was not required for use of Industrial Category  S8'frequencies in the 900 MHz band.U8Z( {O2'ԍ See supra note DEC9RULING5.U  "+7.ؠIn their Application for Review, the Applicants contend that LILCO and the Bureau violated  S' x3the ex parte rules by treating their "Petition to Dismiss or Deny" as an informal objection for purposes  S' xof Sections 1.1202 and 1.1204 of the Commission's Rules.S( yO& 'ԍ 47 C.F.R. 1.1202, 1.1204 (1992).S They also contend that the 40 dB/30 dB  xMpredicted contours for the signal strengths of the proposed stations impermissibly overlap and that the  xZengineering design of the system was irrational and violative of the Commission's Rules. They further  xcontend that the Bureau failed to designate which of LILCO's stations was to be considered primary.  S ' xFinally, they argue that, under Section 556 of the APA,? |( yO'ԍ 5 U.S.C. 556(d).? the Bureau should have imposed the burden of  S 'proof on LILCO rather than on the Applicants.U ( {O~'ԍ See generally Application for Review.U  SZ' FIII. DISCUSSION \  "8.ؠTo prevail on an application for review, the petitioning party must demonstrate that the action  xtaken pursuant to delegated authority (a)is in conflict with statute, regulation, case precedent or  xMestablished Commission policy; (b)involves a question of law or policy not previously resolved by the  xpCommission; (c)involves application of a policy or precedent that should be overturned or revised;  x(d)involves an erroneous finding as to an important or material question of fact; and/or (e)involves  SB' xkprejudicial procedural error.>\B( {O' x ԍ 47 C.F.R.  1.115(b)(2); see, e.g., ADF Communications Co., Inc. For a New Business Radio Service Station  {OJ' x at Abington, Massachusetts, FCC File No. 414702, Memorandum Opinion and Order, 11 F.C.C.R. 19701, 19704 (1996).> As discussed in further detail herein, we find that the Applicants have failed  xMto make the requisite showing that grant of their Application for Review is warranted. Thus, we deny  S'their Application for Review. hhC  S' "9.ؠEx Parte Violation. The Applicants argue that the Bureau and LILCO have violated the ex  S|' xparte rules. They further argue that, as a result, the additional information provided by LILCO in  x*response to the staff's information request should not have been considered in the Bureau's determination"V ,>(>(ZZ"  S' xof whether to grant LILCO's application.H( yOh'ԍ Application for Review at 78.H For purposes of applying the Commission's ex parte rules,X( {O' x ԍ For purposes of clarity, the Commission amended the ex parte rules in 1997. The substance of the  {O' x restrictions, however, remains intact. See Amendment of 47 C.F.R.  1.1200 et seq. Concerning Ex Parte  {O' x^ Presentations in Commission Proceedings, Report and Order, GC Docket No. 9521, 12 FCC Rcd 7348 (1997) ("Ex  {OV' x* Parte Report and Order"). We will interpret the Bureau's actions according to the rules then in effect. The new  {O ' x ex parte rules were effective on June 2, 1997. The Applicants' last pleading in this matter, their Application for Review, was filed in 1994.   xQrequests for Commission action were handled one of two ways at the time LILCO's application was filed:  S' xas informal requests for Commission actionO( {O, 'ԍ See 47 C.F.R. 1.41 (1992).O or as formal oppositions to applications.Rl ( {O 'ԍ See 47 C.F.R.  309(d) (1992). R Although there  S' xtare no rules permitting a formal petition to deny an application in this radio service,O ( yO(' x7 ԍ47 U.S.C. 309. Section 309(d) contemplates the filing of petitions to deny applications covered in Section  x7 309(b) (specifically, applications for broadcast and common carrier services stations, industrial radio positioning  x stations granted on an exclusive basis, aeronautical enroute stations, aeronautical advisory stations, airdrome control  x! stations, aeronautical fixed stations, and such others as the Commission shall prescribe by rule). 47 U.S.C.  309(b), (d). O the Commission's  Sb' x3ex parte rules then in effect provided that so long as an informal objection met the specific criteria for  S<' xa formal opposition, the proceeding was restricted.~<( yO'Ѝ The former 47 C.F.R.  1.1202(e) defined a formal opposition or complaint as:  e a  `  a pleading opposing the grant of a particular application, waiver request, petition  e aj for special relief or other request for Commission action, or a pleading in the  e a) nature of a complaint (other than a section 208 complaint), which meets the  e ab following requirements: (1)the caption and text of a pleading make it  e a unmistakably clear that the pleading is intended to be a formal opposition or  e a formal complaint; (2)the pleading is served upon the other parties to the  e a proceeding, or in the case of a complaint, upon the person subject to the  e aG complaint; and (3)the pleading is filed within the time period, if any, prescribed  e a for such a pleading. Amendment of Subpart H, Part 1 of the Commission's Rules  e a] and Regulations Concerning Ex Parte Communications and Presentations in  {O'Commission Proceedings, Report and Order, 2 FCC Rcd 3011, 3015 (1987).  {O| ' "  `   The ex parte rules, adopted in 1997, no longer tie ex parte treatment status to the designation of a pleading,  {OF!' xx but rather to "party" status. Party status, for purposes of the ex parte rules only, now will be obtained simply by  x filing a written submission served on an existing party, whether or not that submission would be considered "formal"  {O"' x7 under the former rules or whether the submission is timely. Ex Parte Report and Order, 12 FCC Rcd at 7353; see  yO#'47 C.F.R.  1.1202(d)(1) (2) (1997).~ We conclude that the Applicants' filing met the  xcriteria for a formal opposition because the caption and text of the pleading were unmistakably intended  xto be a formal opposition to the application and because the pleading was served on the other party.  S' x^Therefore, for purposes of our former ex parte rules, we believe that the Applicants' pleading should have  S' x been treated as a formal opposition to the LILCO application, thus making the proceeding a restricted"V,>(>(ZZ"  S' xDproceeding and subjecting it to the ex parte restrictions, including service of all substantive documents on &NP   S' x &NP all parties.$( {OB' x7 ԍ 47 C.F.R. 1.1200 et seq. In restricted proceedings, the Commission's Rules forbid ex parte presentations  {O ' xU to or from FCC decisionmaking personnel. An ex parte presentation is any communication that concerns the merits  x or outcome of a proceeding and is not served on the parties to the proceeding, or, if oral, is made without their  {O' x opportunity to be present. 47 C.F.R.  1.1202(b)(c) (1992). But see 47 C.F.R.  1.1204(b)(10) (1992) (exempt  x presentations include those requested by Commission or staff for clarification or adduction of evidence, or for resolution of issues (subject to limitations)). $ We find, therefore, that the Applicants are correct that the Bureau's Application Return  S' xNoticeXF( {O 'ԍ See supra note RETURNNOTICE13.X and LILCO's response (including the system design diagram)H ( {O* 'ԍ See supra para. 3.H are communications that should  S'have been served on the Applicants pursuant to the ex parte rules.  S<' "y 10. In view of the ex parte violation found above, we will, as explained below, take appropriate  S' xMcorrective action. Initially, we note that there is no basis to treat the ex parte violation as reflecting on  x&LILCO's character or warranting dismissal of LILCO's application, since it essentially resulted from a  S' xgood faith error by both the Bureau and LILCO as to the ex parte status of the proceeding. We will not,  S' x/however, give further weight to the Bureau's decision. Under our rules, ex parte materials may be  xconsidered in determining the merits of a restricted proceeding only after the materials have been made  ST ' xpart of the record and the parties so informed.C!T j ( yO^'ԍ 47 C.F.R.  1.1212(d).C The Bureau's decision, which was made without giving  S, ' xthe Applicants notice of the ex parte presentations and an opportunity to respond, is therefore defective.  S ' xNevertheless, we are able to remedy any procedural defect in the Bureau's decision by conducting a de  S ' xnovo review of the pertinent evidence, including the Applicants' response to the ex parte presentations." ( {Oz'ԍ See Press Broadcasting Co., Inc. v. FCC, 59 F.3d 1365, 136970 (D.C. Cir. 1995).  S ' xBy doing so, we are able to issue a decision untainted by the ex parte violation. We find that the  S ' xBureau's decision effectively made the ex parte part of the record and so informed the Applicants. The  xApplicants have now had a full opportunity to know that LILCO's supplemental showing has been made  xpart of the record and have fully responded to it in their Petition for Reconsideration and Application for  xReview. We, therefore, do not believe that there is a need to give the Applicants yet another opportunity  S' x*to respond to the showing before conducting our de novo review. As the following discussion indicates,  xpursuant to our independent review, we find that LILCO's operations are in compliance with the  xCommission's rules. We find specifically that: (1) LILCO's facilities would not create unacceptable co xtchannel interference, and (2) LILCO has proposed an adequate system design. We now address these matters in detail.  S' "< 11.ؠInterference. The Applicants assert that the predicted 40 dB/30 dB contours impermissibly  xoverlap such that LILCO's proposed system would not be protected from existing systems. The  x3Applicants do not allege that LILCO's system will interfere with their stations; rather, the fundamental  xgpremise for their participation in this proceeding rests on the novel theory that the coordinator failed to" ",>(>(ZZ"  S' xgfully protect LILCO from interference from existing stations such as the Applicants' facilities.H#( yOh'ԍ Application for Review at 13.H Given  xthe absence of any allegations of harm to their own stations, we believe that the Applicants' argument  xregarding interference is without merit, as is their assertion that the frequency coordinator acted  xkimproperly. For trunked systems in the Industrial/Land Transportation Category, the Commission's Rules  xMin effect at the time of the filing of LILCO's application required only that the coordinators "attempt to  S8' x. . . limit cochannel interference levels to 30 dB over an applicant's requested service area," and where  S' xQa separation will be less than 70 miles "indicate that the protection criteria have been preserved."K$X( yO 'ԍ 47 C.F.R. 90.621(c) (1991). K SIRSA  xQindicated that the proposed application complied with this Rule, and the Applicants have not demonstrated that the frequency coordinator failed to make the requisite attempt at satisfying the interference criteria.  "  12.ؠ In addition, the Applicants allege that "[p]rior to the grant of LILCO's applications, the  SH ' xapplicable rule changed" to require that a proposed station's 22 dB interference contour not reach an  S ' x}existing cochannel station's 40 dB contour.F% ( yO'ԍ Application for Review at 3.F This assertion, however, is inaccurate. At the time  S ' xLILCO's application was filed, the Commission had not yet imposed a requirement to apply a 40 dB/22  S ' xdB ratio to 800/900 MHz applications such as LILCO's.J& x( {O' x& ԍ See Cochannel Protection Criteria for Part 90, Subpart S Stations Operating Above 800 MHz, Notice of  {O' x Proposed Rule Making, PR Docket No. 9360, 8 FCC Rcd 2454 (1993) (Above 800 MHz NPRM). We also note that  x the Commission's Rules were amended for Specialized Mobile Radio ("SMR") Category channels to reflect a 40  {O ' x dB/22 dB ratio in 1991, but these Rules would not have applied to LILCO's 900 MHz system. See  x Amendment of Part 90 of the Commission's Rules to Permit the ShortSpacing of Specialized Mobile Radio Systems  {O'Upon Concurrence from Cochannel Licensees, Report and Order, PR Docket No. 9034, 6 FCC Rcd 4929 (1991).J This requirement was imposed in the Above  S ' x800 MHz NPRM, where the Commission emphasized that after the document's adoption date, March 11,  S ' x1993, new 800/900 MHz applications would no longer be accepted unless they complied with 47 C.F.R.  S\' x 90.621(b)'s SMR system distance separations or met shortspacing requirements reflecting the 40 dB/22  S4' x&dB standard.]'4 ( {O'ԍ Above 800 MHz NPRM, 8 FCC Rcd at 2457. ] However, LILCO's application was filed on May 15, 1992, well before that date, and  xthus the Commission's prospective requirement was not applicable to it. Moreover, the Commission did  S' xnot adopt the separations standards based on 40 dB/22 dB for nonSMR systems until September 22,  S' x*1993, well after the grant of LILCO's application on April 23, 1993. (R ( {O ' x ԍ See Cochannel Protection Criteria for Part 90, Subpart S Stations Operating Above 800 MHz, Report and  {Ox!'Order, PR Docket No. 9360, 8 FCC Rcd 7293 (1993). See also note 2, supra.  Accordingly, we conclude that the Applicants' argument is without merit.  Sl'   SD' " 13.ؠEngineering Design. The Applicants argue that LILCO's proposed system was irrational and  xviolated Section 90.205 of our Rules, which provides that land mobile radio applications must specify no  S' xmore power than actually necessary for satisfactory operation.@)( yOD''ԍ 47 C.F.R.  90.205.@ The basis for the Applicants' position">),>(>(ZZn"  xIis that the service areas of some of LILCO's base stations overlap each other, but we find that this  xQdemonstrates neither irrationality nor excessive power. Such a design can, for example, allow for greater  xZfrequency reuse, which increases a system's capacity. Accordingly, we find that the public interest is  xserved with regard to the engineering design of the system. Further, we will not retroactively apply  xadditional engineering criteria to LILCO's application filing requirements. As a result, we are not persuaded by the Applicants' contention.  S' " 14.ؠSite Designation and System Loading. In their Application for Review, the Applicants for  xthe first time claim that the grant of LILCO's application was in error because neither LILCO nor the  x^Bureau designated any of LILCO's sites as primary, and because LILCO's application did not demonstrate  Sr' xDthat it would meet the minimum loading requirement.L*r( yO 'ԍ Application for Review at 5.L First, we note that Power Radio Service licensees  SJ ' x are not required to designate one primary station in a wide area system,+J X( {OB ' " ԍSee 47 C.F.R.  90.631(g). Indeed, there was not even a place on the form then in use to make such a  {O 'designation. See FCC Form 574 (August 1989). and it has been the Bureau's  xgpractice to designate all of the stations in such a system as primary (though such information does not  x3appear on the license). Second, the Applicants have misinterpreted the system loading requirement of  S ' xseventy mobile units per channel.J, ( yO&'ԍ47 C.F.R.  90.631(b).J The Applicants contend that LILCO's proposed sixstation system,  S ' xusing the same eight channels at each station, required 3,360 mobile units (70 x 8 x 6).M- D( yO'ԍApplication for Review at 5.M However, the  S ' xrequirement is seventy mobile units per channel, not seventy mobile units per channel per base station.y. ( {O'ԍCf. David E. Weisman, Letter, 8 FCC Rcd 143, 144 (PRB 1992).y  SZ'Therefore, LILCO's minimum loading requirement was 560 mobile units (70 x 8), which it exceeded.T/Zf ( {O`'ԍSee paragraph 2, supra.T  S ' "_15.ؠBurden of Proof. Finally, the Applicants assert that Section 556(d) of the APAI0  ( {O'ԍ See 5 U.S.C. 556(d).I mandates  xthat the burden of proof be placed upon the license applicant and that the Bureau erred in finding that the  S' xApplicants had failed to demonstrate that harmful interference likely would occur.F1 ( yO'ԍ Application for Review at 7.F We find that the  xApplicants' reliance on the APA in this instance is misplaced. Section 556 by its own terms is applicable  Sl' xonly in proceedings which require resolution by a hearing on the record.?2l( yO&#'ԍ 5 U.S.C. 556(a).? In this case, the prospective  xRlicensee ultimately submitted an application which complied with the Commission's Rules. The  xCommission has ruled previously that a challenger to a prospective licensee carries the burden of"2,>(>(ZZ"  S' xdemonstrating that the application is flawed.3Z( {Oh' x ԍ See, e.g., Susan Jacobs Design, Inc., 9 FCC Rcd 2854, 2855 (1994) (license applicant opponent had the  x? "heavy" burden of demonstrating that the license applicant's engineering analysis based on the Commission's standard  yO'propagation model was flawed and that the 40 dB/30 dB predicted contours overlapped). Thus, we conclude that the Bureau's approach with respect  xxto the burden of proof regarding the subject LILCO application was fully consistent with this Commission  xprecedent. Further, as discussed herein, we conclude that the Applicants have failed to meet this burden  S'of proof regarding its opposition to LILCO's application.34( {O'ԍ Id.3  S'D IV. CONCLUSION  S'\  S' "16.ؠIn order to remedy the ex parte violation that occurred at the Bureau level, we have reviewed  S' xthe Applicants' petition for reconsideration and related pleadings de novo. We conclude that grant of LILCO's application is in the public interest.  S '1 V. ORDERING CLAUSE  S '\  "817.ؠAccordingly, IT IS ORDERED that the grant of an authorization for Station WPCB998 to  xLong Island Lighting Company IS AFFIRMED, and that pursuant to Sections 4(i) and 5(c) of the  xCommunications Act of 1934, as amended, 47 U.S.C.  154(i), 155(c), and Section 1.115(e) of the  xcCommission's Rules, 47 C.F.R. 1.115(e), the Application for Review filed on January 6, 1994, by  x*Friends Irrigation Systems, Inc., Newborn Construction, Inc., Mohawk Milling & Sweeping Corp., G.S.  S' xkEnergy Corp. d/b/a Faultless, Mayfair Power Systems, Inc., Tri Weld Industries, Inc., Antorino Sewer &  S'Drain, Inc. and Local Cesspool, Sewer, & Drain IS DENIED . X` hp x (#%'0*,.8135@8: