**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+----+------------------------------+
| In the Matter of the Application | *  | File No. CIP-9201297         |
| of                               | *) |                              |
|                                  | ** |                              |
| CHAMPION INDUSTRIES, INC.        |    |                              |
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| For a New Commercial             | *) |                              |
| Instructional Television Fixed   | ** |                              |
| Service Station on the A Group   |    |                              |
| Channels                         | *  |                              |
|                                  | *) |                              |
| at Provo, Utah                   | ** |                              |
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+----------------------------------+----+------------------------------+

**MEMORANDUM OPINION AND ORDER**

**Adopted: July 15, 2003 Released: July 22, 2003**

By the Commission:

# INTRODUCTION

1.  In this *Memorandum Opinion and Order* (*MO&O)*, we consider an
    Application for Review filed on September 13, 2001, by Champion
    Industries, Inc. (Champion).[^1] Champion requests review of an
    August 14, 2001 letter ruling of the Video Services Division of the
    former Mass Media Bureau (Bureau), which denied reconsideration of
    the Bureau's previous dismissal of the above-captioned application
    for new commercial Instructional Television Fixed Service (ITFS)
    facilities on the A Group channels at Provo, Utah.[^2] Champion also
    requests that the Commission reinstate and process the subject Provo
    application *nunc pro tunc*. For the reasons stated below, we deny
    Champion's Application for Review.

# background

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  -----------------------------------------------------------------------

2.  On October 25, 1991, the Commission adopted a rule permitting
    wireless cable entities to use ITFS channels.[^3] To ensure that
    wireless cable use of these channels did not adversely affect ITFS
    operations, the Commission established a series of requirements that
    had to be met before ITFS channels could be used for wireless cable
    purposes. The instant case involves two of the requirements in
    effect when Champion filed its application. First, a wireless cable
    operator proposing to use ITFS channels was required to demonstrate
    that, if its application was granted, at least eight ITFS channels
    would remain "available" in the community for ITFS use.[^4] For
    these purposes, channels were considered "available" if there were
    no co-channel licensees or applicants within fifty miles of the
    proposed wireless cable site and if the applicant represented that
    its proposed transmitter would remain available for use by new ITFS
    applicants for three years after the wireless cable entity commenced
    operation.[^5] Second, a wireless cable applicant was required to
    demonstrate that there were no Multipoint Distribution Service
    (MDS)[^6] channels available that could be used in lieu of the ITFS
    frequencies for which it had applied.[^7]

3.  [Champion's Provo Application]{.underline}. In 1992, there were
    twenty ITFS channels (five groups -- A, B, C, D, and G -- of four
    channels each) for which wireless cable entities could apply.[^8] On
    February 3, 1992, Champion filed applications for new facilities on
    the A and D Channel Groups at Provo, Utah.[^9] Under Section
    74.990(a) of the Commission's Rules, Champion was required to show
    that at least eight of the remaining twelve ITFS channels were
    available in Provo for future ITFS use.[^10] In its applications,
    Champion conceded that the B Group channels were unavailable for
    future ITFS use because harmful interference would occur to the
    University of Utah's previously filed application for a new ITFS
    station on the B Channel Group at Magna, Utah,[^11] located 34.1
    miles away from Champion's proposed Provo station.[^12] Champion
    represented that there were no ITFS stations on the G Group channels
    within fifty miles of its proposed stations, hence making the four
    channels in the G Group available for a future ITFS system in Provo.
    Assuming that Champion was correct in claiming the G Group channels
    were available, the G group channels would only have supported the
    availability of four of the requisite eight channels.[^13]

4.  In an attempt to show that four additional channels were available,
    Champion sought a waiver of Section 74.990(a) of the Commission's
    Rules with respect to the C Group channels. Specifically, Champion
    requested that the Commission consider the C group channels to be
    available despite the existence of a C Group application from the
    Instructional Telecommunications Foundation (ITF), only 33.7 miles
    away in Salt Lake City, Utah.[^14] In support of its waiver request,
    Champion argued that the same channel may in fact be assigned to
    more than one station in the same area if the geometric arrangement
    of the transmitting and receiving points is such that interference
    is not likely to occur. Champion further asserted that the
    transmitter site of the Salt Lake City application was separated
    from Champion's proposed site by a mountain range. Thus, according
    to Champion, any potentially interfering signal would be blocked in
    whole by the intervening mountains, and no objectionable
    interference would occur from Champion's proposed station.[^15]

5.  On September 1, 1999, the Mass Media Bureau dismissed Champion's
    applications because: (1) Champion failed to show that there were
    eight ITFS channels available in Provo for future ITFS use as of the
    date of the VSD Aug. 14 2001, Letter;[^16] (2) Champion had not
    justified a waiver of the eight-channel requirement; and (3) the
    Commission's licensing records showed that when Champion filed its
    applications, MDS Channel 2A was available for application in
    Provo.[^17] On October 1, 1999, Champion filed a Petition for
    Reconsideration.[^18] On August 14, 2001, the Assistant Chief of the
    Bureau's Video Services Division concluded that the dismissal of
    Champion's applications was correct and denied Champion's
    reconsideration petition.[^19] On September 13, 2001, Champion filed
    the instant AFR with respect to the A Group application.

# Discussion

6.  Champion makes a two-fold argument: (1) its waiver request should
    not have been denied because Champion's reference to a mountain
    range separating the Provo and Salt Lake City sites was an adequate
    showing that Provo and Salt Lake City C Group ITFS stations would
    not interfere with one another; [^20] and (2) that there were no
    technically suitable MDS or MMDS channels available in Provo that
    could be used in lieu of the ITFS frequencies applied for by
    Champion.[^21]

## Section 74.990(a)'s Eight-Channel ITFS Requirement and the Fifty-Mile Standard 

7.  Champion claims that the Bureau did not provide an adequate
    explanation of why Champion was not entitled to a waiver of Section
    74.990(a) of the Rules.[^22] We agree with the Bureau's action in
    this case and conclude that the defects in the Champion waiver
    request were evident on the face of Champion's Provo application
    because it lacked sufficient technical information to demonstrate
    that the C group channels would be available for future ITFS use in
    Provo were Champion's application granted. However, in the interest
    of fully addressing Champion's AFR, we discuss, in further detail,
    the reasons Champion's application was defective and subject to
    dismissal.

8.  As noted *supra*, Champion relied on availability of the G Group and
    C Group channels to show that, if its application was granted, at
    least eight channels would remain available for future use in
    Provo.[^23] Champion claimed that the G Group met the fifty-mile
    criterion for deeming the G Group "available in the future" for ITFS
    use in Provo.[^24] However, the G Group yielded only four of the
    requisite eight channels; hence Champion needed four additional
    channels, which necessarily had to come from the C Group, which did
    not meet the fifty-mile spacing criterion relative to the Salt Lake
    City C Group station. Accordingly -- in an effort to show that eight
    channels would remain available for ITFS use in Provo -- Champion
    sought waiver of Section 74.490(a) of the Rules with respect to the
    C Group channels.[^25]

9.  There is a decisionally significant difference between the showings
    an applicant must make relative to its proposed facilities' effect
    on nearby ITFS stations and applications and the showings necessary
    to demonstrate that at least eight other channels would be available
    for future ITFS stations at the wireless cable applicant's proposed
    site. The availability of the channels on which the applicant
    proposes to operate is determined by evaluating predicted
    interference to specific receive sites or the protected service area
    of nearby stations.[^26] The determination of whether a particular
    channel group is available for future ITFS use is based on the
    fifty-mile spacing criterion -- a showing of no interference is not
    sufficient.[^27] This difference in the two standards stems from the
    fact that demonstrating that a hypothetical future ITFS station
    would not cause interference as of a given date (in this instance
    the date of Champion's application) is no guarantee that the channel
    group would remain available in the future, because, in the interim,
    other receive sites associated with nearby co-channel or adjacent
    channel stations could be activated. In that event, availability of
    the channel group for a future ITFS facility could be precluded. The
    fifty-mile criterion, however, limits the possibility that
    later-added receive sites at other facilities would preclude use of
    the channel group by a future ITFS licensee.

10. Champion's waiver request attempted to show that later-added receive
    sites at the Salt Lake City C Group ITFS facility would not preclude
    future use of the C Group channels at Provo because interference
    between a Provo station and the co-channel facilities specified in
    the Salt Lake City application would be "virtually impossible." The
    impossibility argument rested on Champion's assertion that the Provo
    and Salt Lake City transmitter sites would be in valleys separated
    by the Wasatch Mountains, which have an average elevation of 7,000
    feet. This, Champion avers, gives "geographic uniqueness" to the
    region.[^28]

11. In evaluating waiver requests, we are mindful of the principle
    enunciated by the U.S. Court of Appeals for the District of Columbia
    Circuit: "An applicant for waiver faces a high hurdle even at the
    starting gate. 'When an applicant seeks a waiver of a rule, it must
    plead with particularity the facts and circumstances which warrant
    such action.'"[^29] In this case, we agree with the Bureau that
    Champion fell far short of meeting that standard because it did not
    supply, with the required particularity, technical facts sufficient
    to permit the Commission to evaluate the merits of Champion's waiver
    request.

12. As an initial matter, we note that Champion's no-interference claim
    focused on the terrain between its transmitter site and the
    transmitter site specified in the Salt Lake City application.
    Interference, however, does not develop between ITFS transmitters;
    it develops between the transmitter of one station and the protected
    service area or receive sites of another.[^30] There is no showing
    -- or even an assertion -- in the Champion waiver request to the
    effect that the mountain range with an "average" 7,000- foot
    elevation would intervene between a Provo C Group station and the
    protected service area or discrete receive sites associated with a
    Salt Lake City C Group station. Moreover, we fail to see the
    relevance of the average elevation of a mountain range in the
    context of terrain blockage. The average elevation of the mountain
    range notwithstanding, the terrain could well deviate from its
    average value on discrete propagation paths between a Provo C Group
    station and the receive sites or protected service area of a Salt
    Lake City station. However, the Champion waiver request is devoid of
    any technical analysis of discrete propagation paths, signal levels
    or other such parameters necessary to evaluate Champion's bare claim
    that interference would be impossible because of the geographical
    uniqueness of the region. Finally, even had Champion considered the
    Salt Lake City receive sites in existence at the time Champion filed
    its waiver request, it could not anticipate receive sites that the
    Salt Lake City licensee might activate subsequently. The existence
    of such subsequent receive sites could preclude implementation of a
    future Provo C Group ITFS facility because of interference
    considerations.

13. In sum, we find that Champion did not provide sufficient technical
    data to allow the Bureau to conclude that, because of terrain
    conditions, the C Group channels should be deemed available for
    future ITFS use in Provo, despite the presence of Salt Lake City
    co-channel station 33.7 miles away -- a sixteen-mile derogation of
    the fifty-mile spacing requirement set forth in Section 74.990(a) of
    the Commission's Rules.[^31] With approval of the Champion waiver
    request, eight ITFS channels would not have remained available for
    future ITFS use in Provo, as Section 74.990(a) of the Commission's
    Rules[^32] requires. Accordingly, we conclude that the Bureau was
    correct when it dismissed Champion's application for failure to meet
    the eight-channel requirement.

## Applicability of the Requirement to Use MDS or MMDS Channels if Available.

14. Although Champion's failure to meet the eight-channel requirement of
    Section 74.990(a) of the Commission's Rules[^33] is dispositive of
    the merits of Champion's AFR, we nonetheless will address, in the
    interest of completeness, Champion's argument that Section 74.990(d)
    of the Commission's Rules was not an obstacle to grant of its
    application. Section 74.990(d) provides in pertinent part "that to
    be licensed on ITFS channels, a wireless cable applicant must show
    that there are no MDS or MMDS channels available for application,
    purchase or lease that could be used in lieu of the Instructional
    Television Fixed Service frequencies applied for."[^34] The VSD
    Sept. 1, 1999, and VSD Aug. 14, 2001, letters both concluded that
    Champion's applications did not comply with Section 74.990(d) of the
    Commission's Rules because MDS Channel 2A was available for
    application in Provo.[^35]

15. Champion agrees that MDS Channel 2A was unused in Provo when it
    submitted its application, but argues that Channel 2A was not
    technically suited to Champion's proposed operations.[^36] Champion
    states that it intended to use the requested ITFS channels to
    transmit video programming and that the Commission has recognized
    that the 4 MHz bandwidth of Channel 2A is inadequate for
    conventional video distribution, which requires a bandwidth of 6
    MHz.[^37] We agree with Champion's contention. In 1998, the
    Commission stated that, in the MDS and ITFS rules, channels have
    fixed bandwidths of 6 MHz for downstream (*i.e*.,
    point-to-multipoint) transmissions and 125 kHz for upstream (*i.e*.,
    point-to-point) response signals. MDS Channel 2A, however, has a
    bandwidth of only 4 MHz, which will not support such analog video
    and response transmissions.[^38] Accordingly, because MDS Channel 2A
    would not suffice to meet Champion's intended and proposed use of
    its system for analog video transmission -- a use specifically
    permitted by the Rules[^39] -- we cannot agree that MDS Channel 2A
    was "available" to Champion within the meaning of Section
    74.990(d).[^40] Consequently, we agree with Champion that the Bureau
    erred when it concluded that Champion's application was inconsistent
    with Section 74.990(d) of the Commission's Rules. This
    determination, however, does not change the ultimate conclusion we
    reached earlier herein that Champion's A Group application was
    properly dismissed for Champion's failure to provide a sufficient
    showing demonstrating that grant of a waiver of the fifty-mile
    spacing rule was warranted under the circumstances presented.

# conclusion and ordering clauses

16. In light of the foregoing, we conclude that Champion did not meet
    its burden of demonstrating, with particularity, in its waiver
    request, that waiver of the fifty-mile spacing criterion set forth
    in Section 74.990(a) of the Commission's Rules[^41] was warranted.
    Without the waiver, Champion was unable to demonstrate that its
    application was acceptable for filing pursuant to the criteria set
    forth in Section 74.990 of the Commission's Rules.[^42]
    Consequently, we affirm the Bureau's dismissal of Champion's
    application and denial of Champion's petition for reconsideration.

17. ACCORDINGLY, IT IS ORDERED that pursuant to Sections 4(i) and
    5(c)(5) of the Communications Act of 1934, as amended, 47 U.S.C. §§
    154(i), 155(c)(5), Section 1.115 of the Commission's Rules, 47
    C.F.R. § 1.115, Section 74.990 of the Commission's Rules, 47 C.F.R.
    § 74.990 (1992), the Application for Review filed by Champion
    Industries, Inc. on September 13, 2001 IS DENIED.

FEDERAL COMMUNICATIONS COMMISSION

Marlene H. Dortch

Secretary

[^1]: Champion Application for Review, File No. CIP-9201297 (filed
    September 13, 2001) (Champion AFR).

[^2]: *See* Letter dated August 14, 2001, from Charles E. Dziedzic,
    Assistant Chief, Video Services Division, Mass Media Bureau, Federal
    Communications Commission, to Champion Industries, Inc., regarding
    File Nos. CIP-92-01297 and CIP-01294 (Provo, Utah) (VSD Aug. 14,
    2001, Letter); *see also* Letter dated September 1, 1999, from
    Sharon Bertelsen, Supervisory Attorney, MDS Section, Video Services
    Division, Mass Media Bureau, Federal Communications Commission to
    Ronald D. Maines, Esq., Counsel to Champion Industries, Inc.,
    regarding File No. CIP-92-01297 (Provo, Utah) (VSD Sept. 1, 1999,
    Letter).

[^3]: 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, Multipoint
    Distribution Service, Multichannel Multipoint Distribution Service,
    and Cable Television Relay Service, Gen. Docket No. 90-54, *Second
    Report and Order*, 6 FCC Rcd 6792, 6801-6806 (1991) (*Second Report
    and Order*). *See also* 47 C.F.R. § 74.990 (1991).

[^4]: *See* 47 C.F.R. § 74.990(a) (1992).

[^5]: *Id.*

[^6]: Herein, the term "MDS" is generally used to refer, collectively,
    to both the single-channel MDS and the Multichannel Multipoint
    Distribution Service (MMDS). However, when the context requires,
    there is specific reference to the individual service, *i.e.* MDS or
    MMDS.

[^7]: *See* 47 C.F.R. § 74.990(d) (1992).

[^8]: *See* 47 C.F.R. § 74.902. Depending on the market involved, there
    are either 12 or 13 channels available for full-time wireless cable.
    Eleven of these are MMDS Channels E1-E4, F1-F4, and H1-H3,
    (reallocated in the *Second Report and Order, see* paras. 7-10). In
    50 cities, two single-channel MDS channels are also available,
    Channels 1 and 2. In the rest of the country, one single-channel MDS
    channel (Channel 1) is available. In addition, 20 ITFS channels,
    Channels A1-A4, B1-B4, C1-C4, D1-D4 and G1-G4, may be leased by
    wireless cable operators on a part-time basis (more than 75% of ITFS
    channel time could be leased, depending upon the intensity of use by
    the ITFS licensee). *Second Report and Order*, 6 FCC Rcd at 6792,
    ¶ 1. MMDS and ITFS share the E and F channel groups, but no
    applications for new ITFS stations on these channels could be filed
    after May 25, 1983. *See* 47 C.F.R. §§ 74.902(b) and (c) (1991).

[^9]: *See* File Nos. CIP-0201294, CIP-9201297. The A channel group
    consists of the frequencies 2500-2506, 2512-2518, 2524-2530, and
    2536-2542 MHz. The D channel group consists of the frequencies
    2554-2560, 2566-2572, 2578-2584, and 2590-2596 MHz. *See* 47 C.F.R.
    § 74.902 (1992). Champion did not file for review of the dismissal
    of its D Group application; hence, the order dismissing that
    application is now final and not subject to review.

[^10]: *See* 47 C.F.R. § 74.990(a) (1992).

[^11]: File No. BLIF19871116DA.

[^12]: *See* Champion Application Waiver Request at Exhibit 4

[^13]: *Id.*

[^14]: *Id.* The Salt Lake City applicant had application File No.
    BPIF-19831108DC. It is now licensed as Station WLX699.

[^15]: *Id.*

[^16]: The Division stated: "Even if the Commission staff processed the
    application on the day it was filed, the application would have been
    returned as unacceptable for filing because the proposal did not
    meet the eight-channel preservation requirement." VSD Sept. 1, 1999,
    Letter at 1.

[^17]: *See* VSD Sept. 1, 1999, Letter.

[^18]: Champion *Petition for Reconsideration*, File No. CIP-9201297
    (filed October 1, 1999) (Champion PFR).

[^19]: *See* VSD Aug 14, 2001 Letter.

[^20]: *See* Champion AFR at 1.

[^21]: *See* Champion AFR at 1-10; *see also* ¶ 2 *supra.*

[^22]: *See* AFR at 2.

[^23]: *See* 47 C.F.R. § 74.990(a) (1992). *See also* ¶ 2 *supra.*

[^24]: *Id.*

[^25]: *Id.*

[^26]: *See* n. Error: Reference source not found *infra.*

[^27]: *See* 47 C.F.R. § 74.990(a) (1992).

[^28]: Champion AFR at 7-8. Champion also notes that there were no
    objections from other parties; and that, as of 1996 -- well after
    filing of the Champion application and waiver request -- the Salt
    Lake City ITFS licensee and Champion mutually consented to each
    other's operations.

[^29]: *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*).

[^30]: Section 74.990(f) of the Commission's Rules states that "the
    interference protection provided to wireless cable applicants and
    licensees of instructional television fixed service facilities will
    be that described in § 21.902 of this chapter." 47 C.F.R. §
    74.990(f) (1992). At the time Champion's application was filed,
    Section 21.902(c) of the Commission's Rules required, in relevant
    part, that the applicant must include an analysis of the potential
    for harmful interference with any authorized or previously proposed
    station(s) if the applicant's proposed transmitting antenna has an
    unobstructed electrical path to any part of the protected service
    area of any other authorized or previously proposed cochannel or
    adjacent channel station(s). *See* 47 C.F.R. § 21.902(c) (1992).

[^31]: ^?^ 47 C.F.R. § 74.990(a) (1992).

[^32]: *Id.*

[^33]: 47 C.F.R. § 74.990(a) (1992).

[^34]: 47 C.F.R. § 74.990(d) (1992).

[^35]: *See* VSD Sept. 1, 1999, Letter and VSD Aug. 14, 2001, Letter.

[^36]: *See* Champion AFR at 10.

[^37]: *Id.*

[^38]: The 6 MHz bandwidth was selected several decades ago because it
    represented the common bandwidth then necessary to accommodate NTSC
    analog video signals and high quality FM audio signals. In typical
    ITFS systems, licensees are assigned the use of one or more
    non-contiguous 6 MHz channels and the associated (paired) 125 kHz
    response channels, and do not alter their channel bandwidths or
    otherwise deviate from the mandated channelization scheme. *See*
    Amendment of Parts 21 and 74 to Enable Multipoint Distribution
    Service and Instructional Television Fixed Service Licensees to
    Engage in Fixed Two-Way Transmissions, MM Docket No. 97-217, *Report
    and Order*, 13 FCC Rcd 191112, 19119-20 at ¶ 19 (1998).

[^39]: *See* 47 C.F.R. § 74.931 (1992).

[^40]: 47 C.F.R. § 74.990(d) (1992).

[^41]: 47 C.F.R. § 74.990(a) (1992).

[^42]: 47 C.F.R. § 74.990 (1992).