**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of Application of  | *  | File No. 50122-CM-P-90       |
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| BROADCAST CABLE BLOOMINGTON,     | ** |                              |
| INC.                             |    |                              |
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| For a Conditional License for a  | *) |                              |
| New Broadband Radio Service      | ** |                              |
| Station Operating on the E-Group |    |                              |
| Frequencies at Bloomington,      | *  |                              |
| Indiana                          | *) |                              |
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**ORDER ON RECONSIDERATION**

**Adopted: December 14, 2006 Released: December 15, 2006**

By the Deputy Chief, Broadband Division, Wireless Telecommunications
Bureau:

# INTRODUCTION

1.  On May 3, 1993, Broadcast Cable Bloomington, Inc. (BCBI) filed a
    petition seeking partial reconsideration[^1] of the action taken by
    the Domestic Facilities Division of the Common Carrier Bureau on
    April 2, 1993,[^2] dismissing BCBI's captioned application[^3] for a
    Broadband Radio Service (BRS)[^4] station as unacceptable for
    filing.[^5] BCBI's petition is opposed by Affiliated MDS Corporation
    (Affiliated) and Indianapolis Cellular Television Co. (ICTV),[^6]
    and BCBI has replied.[^7] For the reasons discussed below, we deny
    BCBI's Petition.

# BACKGROUND

2.  On December 29, 1989, Broadcast Cable, Inc. (BCI) filed an
    application for a conditional license for a new multichannel
    multipoint distribution service (MMDS) station on the E-group
    channels at Bloomington, Indiana. BCI and BCBI filed a minor
    amendment to this application on September 13, 1991,[^8]
    substituting BCBI for the original applicant BCI, stating that the
    two companies have identical ownership.[^9]

3.  On April 2, 1993, the Domestic Facilities Division of the former
    Common Carrier Bureau (Division) dismissed BCBI's application as
    defective.[^10] The Division found that BCBI failed to comply with
    the requirements of Sections 21.902(c)(1), 21.902(c)(2),
    21.902(c)(3), 21.902(f), and 21.902(g) of the Commission's
    Rules.[^11] Section 21.902(c)(1) of the Commission's Rules required
    BCBI to file with its initial application "\[a\]n analysis of the
    potential for harmful interference within the 56.33 km (35 mile)
    protected service areas of any authorized or previously proposed
    incumbent station,"[^12] which in BCBI's case included Affiliated's
    co-channel MMDS Station WHT673 at Bloomington.[^13] The Division
    noted that BCBI must engineer its station to provide to WHT673's
    protected service area at least 45 dB of cochannel interference
    protection, and that while BCBI's application provided a narrative
    discussion of interference to the station, BCBI's submission failed
    to show the desired-to-undesired signal ratios required by Sections
    21.902(c) and 21.902(f).[^14] The Division further noted that, with
    respect to adjacent-channel MMDS Station WLW973 at Bloomington,
    licensed to Broadcast Data Corp. (Data), BCBI is required to provide
    to WLW973's protected service area an undesired-to-desired signal
    ration of less than 0 db, yet BCBI again failed to show the
    desired-to-undesired signal ratios of BCBI's signal within the
    protected service area of Station WLW973.[^15] Moreover, BCBI failed
    to comply with the requirement of Section 21.902(c)(3) that BCBI
    identify the areas within the protected service areas of
    Affiliated's station and WLW973 which would receive harmful
    interference, nor did BCBI submit an explanation of why its proposed
    station cannot be colocated with Station WLW973.[^16] In addition,
    the Division noted that BCBI failed to comply with the requirement
    of Section 21.902(g) that BCBI serve, on or before the date it filed
    its initial application, a copy of the required interference studies
    on each of the applicants, conditional licensees, and licensees of
    the stations studied, and that BCBI file a certificate of such
    service with its initial application.[^17] Finally, the Division
    stated that, among other deficiencies, BCBI's maintenance showing
    fails to comply with the requirements of Section 21.15(e) of the
    Commission's Rules.[^18]

4.  BCBI argues that its application is not defective.[^19] BCBI
    contends that the Commission's Rules do not require a showing of
    actual signal ratios, but merely an analysis of the potential for
    harmful interference, which BCBI states it submitted.[^20] BCBI
    argues that Figure 6 of Exhibit E to its application shows that
    along twelve radials within the protected service area contour of
    WHT673 the desired-to-undesired signal ratio is greater than 45 dB,
    as indicated by the term "PC," meaning the protected contour as
    calculated according to Section 21.902(d)(1) and (2) of the
    Commission's Rules.[^21] BCBI submits a declaration from Robert T.
    Bond attesting that the computer program that generated Figure 6 has
    been used repeatedly since the late 1970s to demonstrate
    non-interference.[^22] BCBI argues that the program complies with
    the requirements of the Commission's Rules, and contends, without
    citing any examples or support, that the Commission has granted
    applications that have used the program and its nomenclature.[^23]
    BCBI maintains, therefore, that its application was treated
    differently from those of similarly situated parties, which cannot
    be justified.[^24] BCBI also contends that the specification of the
    value of desired-to-undesired signal is of no consequence when the
    value exceeds the minimum, and thus the absence of specified values
    in BCBI's application is of no consequence.[^25] BCBI also maintains
    that because Figure 6 shows that the stations are cross-polarized,
    are separated by 47 miles, and that the E.I.R.P. of the desired
    station exceeds that of the undesired station by 1.7 dB, it is clear
    that a desired-to-undesired signal study would show greater than 45
    dB at all study points.[^26]

5.  With respect to Station WLW973, BCBI again argues that it is not
    required to show the actual desired-to-undesired signal ratio
    values.[^27] In addition, citing Section 21.902(c)(4) of the
    Commission's Rules,[^28] BCBI contends that it is not required to
    show 0 db protection throughout WLW973's protected service area, but
    that BCBI need only provide this protection whenever possible.[^29]
    BCBI states that, in accordance with Commission policy,[^30] BCBI
    explained in its application that it is not possible to colocate
    BCBI's proposed facility with Station WLW973, because existing space
    was filled.[^31] BCBI argues that such an explanation has previously
    been accepted in granting an application,[^32] and the Commission
    should do so in BCBI's case as well.[^33] BCBI states that it did
    submit a study -- Figure 7 of Exhibit E to its application -- made
    at 0.1 mile increments along 360 radials from the proposed
    transmitter site, which demonstrated a lack of any interference at
    0.1 mile resolution.[^34] Consequently, any interference occurring
    to WLW973 would be within 0.1 mile of BCBI's transmitter, an area of
    0.03 square miles.[^35] BCBI states that this area would fall within
    the radius of the tower's guy wires, and that there is no reason why
    such possible yet negligible adjacent channel interference should be
    a barrier to accepting BCBI's application.[^36]

6.  BCBI also contends that the lack of an analysis of interference from
    Station WLW973 to BCBI's proposed station is not a reason to dismiss
    BCBI's application.[^37] BCBI maintains that the applicant in
    *Austin* did not include such an analysis.[^38] BCBI also claims it
    is willing to accept the minute interference that might be caused to
    it.[^39] BCBI notes that it did serve its application on all studied
    parties, a copy of which is submitted as Exhibit IV.[^40] BCBI
    contends that as it has elected non-common carrier status, no public
    service obligations are imposed upon it, and thus a showing of
    maintenance procedures involved to insure the rendition of good
    public service is not relevant to the decision whether to grant
    BCBI's application.[^41] In any event, claims BCBI, the Division has
    a practice of granting applications for BRS station licenses
    conditioned upon the later submission of a maintenance showing.[^42]
    With respect to other deficiencies allegedly found in BCBI's
    application, BCBI argues that the Division's failure to specify any
    such deficiencies bars the Division from raising them against
    BCBI.[^43]

7.  On October 17, 1995, BCBI submitted letters of agreement from BCBI,
    Affiliated, and Data[^44] stating that all three parties have agreed
    to engineer their facilities to minimize any potential interference
    and to accept what minimal amounts of interference may occur.[^45]
    Subsequently, PCTV Gold, Inc. (PCTV), the authorization holder of
    the Bloomington, Indiana Basic Trading Area, notified the Commission
    that BCBI had entered into an agreement with PCTV to lease all of
    the transmission capacity of the E Group channels, and urged grant
    of BCBI's petition and underlying application.[^46]

# DISCUSSION

8.  We are not persuaded by BCBI's arguments. At the time BCBI's
    application was filed, Section 21.902(b) of the Commission's Rules
    required a BRS 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
    co-channel station and at least 0 dB of interference protection
    within the protected service area of all other previously proposed
    or authorized adjacent channel stations.[^47] BRS applicants were
    required to demonstrate these protections in interference studies
    submitted with their applications.[^48] These interference showings
    are a significant requirement that the Commission has repeatedly
    emphasized.[^49] Applications that do not contain an analysis of how
    the applicant intends to avoid interference in adjacent areas will
    not be considered acceptable for filing.[^50] In performing these
    analyses, calculations must be performed properly and be adequately
    justified.[^51] Mere conclusions unsupported by proof or
    documentation have no probative value.[^52] BCBI's failure to supply
    detailed calculations for the desired to undesired signal ratios
    does not comport with the rules.[^53] Even were we to accept BCBI's
    interpretation of the rules as applied to the methodology of BCBI's
    interference studies, BCBI's failure to identify the area in which
    interference may be expected -- interference that BCBI acknowledges
    will occur -- is fatal to its application. *Austin*, which BCBI
    relies upon, is readily distinguishable from this case because the
    applicant and its opponent had demonstrated their willingness to
    resolve potential interference problems cooperatively.[^54] BCBI did
    not make such a showing at the time it filed its application or the
    present Petition.

9.  Furthermore, BCBI's 1995 agreement with Affiliated and Data does not
    cure the deficiencies in its application. The Commission has
    affirmed that consent letters must be filed with the original
    application because "\[c\]onsidering consent letters that did not
    exist at the time the original application was filed encourages the
    filing of incomplete applications and places an undue burden on the
    Commission's limited resources."[^55] Here, BCBI did not reach an
    agreement with Affiliated and Data until two years after its
    application was dismissed. Consistent with the Commission's holding,
    we find that the 1995 agreement does not provide a basis for
    reinstating BCBI's application.

10. We also affirm the holding that BCBI's application was defective for
    failure to submit a maintenance showing. Contrary to BCBI's claim
    that it need not submit a maintenance showing, both Section 21.15(e)
    of the Rules[^56] and Item 18 of the application form require such a
    submission, with no exception stated for non-common carrier
    applicants. If BCBI believed that it had good cause for not
    complying with the rule, it should have filed a request for
    waiver.[^57] However, in filing its application, BCBI did not claim
    exemption from this requirement, but simply noted that the location
    and telephone number of the maintenance center was "to be
    determined."[^58] Again, BCBI cites no precedent to the contrary,
    but simply references an undocumented Division policy allowing
    submission of this information subsequent to filing an
    application.[^59] Even if such policy were to exist, BCBI's
    application fails to demonstrate an intention to eventually supply
    the information.[^60]

# CONCLUSION AND ORDERING CLAUSES

11. For the reasons discussed above, we deny BCBI's petition for partial
    reconsideration, thereby affirming the dismissal of BCBI's captioned
    application as unacceptable for filing.

12. Accordingly, IT IS ORDERED that, pursuant to Sections 4(i) and 405
    of the Communications Act of 1934, 47 U.S.C. §§ 154(i) and 405, and
    Section 1.106 of the Commission's Rules, 47 C.F.R. § 1.106, the
    Petition for Partial Reconsideration filed by Broadcast Cable
    Bloomington, Inc. on May 3, 1993 IS DENIED.

13. This action is taken under delegated authority pursuant to Sections
    0.131 and 0.331 of the Commission's Rules, 47 C.F.R. §§ 0.131 and
    0.331.

    FEDERAL COMMUNICATIONS COMMISSION

> John J. Schauble
>
> Deputy Chief, Broadband Division
>
> Wireless Telecommunications Bureau

[^1]: Broadcast Cable Bloomington, Inc. Petition for Partial
    Reconsideration (filed May 3, 1993) (Petition).

[^2]: Letter from James R. Keegan, Chief, Domestic Facilities Division,
    Common Carrier Bureau to Donald E. Paulson and Thomas P. Farrell
    (dated Apr. 2, 1993) (Letter Order).

[^3]: Broadcast Cable, Inc. Application, File No. 50122-CM-P-90 (filed
    Dec. 29, 1989).

[^4]: On July 29, 2004, the Commission released a *Report and Order and
    Further Notice of Proposed Rulemaking *that transforms the rules
    governing the Multipoint Distribution Service (MDS) and the
    Instructional Television Fixed Service (ITFS) in order to encourage
    the deployment of broadband services by commercial and educational
    entities.  Amendment of Parts 1, 21, 73, 74 and 101 of the
    Commission's Rules to Facilitate the Provision of Fixed and Mobile
    Broadband Access, Educational and Other Advanced Services in the
    2150-2162 and 2500-2690 MHz Bands, *et al.*; WT Docket Nos. 03-66,
    *et al.*, *Report and Order and Further Notice of Proposed
    Rulemaking*, 19 FCC Rcd 14165 (2004) (*BRS/EBS R&O & FNPRM*). To
    better reflect the forward-looking vision for these services, the
    Commission renamed MDS the Broadband Radio Service and ITFS the
    Educational Broadband Service.  Unless otherwise noted, the
    citations to rules will be to those rules in effect during the
    operative time period.

[^5]: The Letter Order also dismissed as defective an application filed
    by Affiliated to modify Affiliated's MMDS Station WHT673 at
    Bloomington, Indiana. BCBI does not contest this aspect of the
    Letter Order. Affiliated has since assigned the authorization for
    WHT673 to Wireless Cable of Indianapolis, Inc. (WCI). *See* Mass
    Media Bureau Multipoint Distribution Service Actions, Report No.
    196, *Public Notice* (rel. Nov. 7, 2000). On February 24, 2005,
    pursuant to rules adopted in the *BRS/EBS R&O & FNPRM*, WCI notified
    the Commission that WHT673 had voluntarily discontinued service. WCI
    Notification of Discontinuance of Service Pursuant to §27.66 (dated
    Feb. 24, 2005).

[^6]: Affiliated MDS Corporation and Indianapolis Cellular Television
    Co. Joint Opposition to Petition for Partial Reconsideration (filed
    May 18, 1993) (Joint Opposition).

[^7]: Broadcast Cable Bloomington, Inc. Reply to Joint Opposition to
    Petition for Partial Reconsideration (filed May 28, 1993) (Reply).

[^8]: Broadcast Cable, Inc. and Broadcast Cable Bloomington, Inc. Minor
    Amendment (filed Sept. 13, 1991) (Amendment).

[^9]: Amendment at 1.

[^10]: Letter Order, *supra*.

[^11]: 47 C.F.R. 21.902(c)(1), 21.902(c)(2), 21.902(c)(3), 21.902(f),
    and 21.902(g) (1989).

[^12]: 47 C.F.R. 21.902(c)(1) (1989).

[^13]: Letter Order at 2. ICTV had an agreement with Affiliated to
    utilize WHT673 to provide a video relay service to be used in
    conjunction with a wireless cable service in and around
    Indianapolis. Joint Opposition at 1 n.1.

[^14]: Letter Order at 2-3.

[^15]: *Id.* at 3.

[^16]: *Id.*

[^17]: *Id.* at 4.

[^18]: *Id.* at 4 n.4. Former Section 21.15(e) of the Commission's Rules
    required an applicant to "submit a showing of the general
    maintenance procedures involved to insure the rendition of good
    public communications service." The showing was required to include
    the location and telephone number of the maintenance system, the
    manner in which technical personnel were made aware of malfunctions,
    and the appropriate time required to reach the station in case of
    emergency. 47 C.F.R. § 21.15(e) (1993).

[^19]: Petition at 2.

[^20]: Petition at 3.

[^21]: Petition at 3*. See also* Exhibit E to Application at Figure 6 at
    2.

[^22]: Petition at 3. *See also* Attachment III to Petition at 5.

[^23]: Petition at 3-4.

[^24]: Petition at 4.

[^25]: Petition at 4-5.

[^26]: Petition at 5.

[^27]: Petition at 6.

[^28]: 47 C.F.R. § 21.902(c)(4) (1989).

[^29]: Petition at 6.

[^30]: BCBI cites Amendment of Parts 21, 74 and 94 of the Commission
    Rules and Regulations with regard to the technical requirements
    applicable to the Multipoint Distribution Service, the Instructional
    Television Fixed Service and the Private Operational-Fixed Microwave
    Service (OFS), *et al.*, GN Docket No. 80-113, *First Report and
    Order*, 98 FCC 2d 68, 118 ¶ 132 (1990).

[^31]: Petition at 7. *See also* Exhibit E to Application at 6.

[^32]: BCBI cites Austin Movie and Sports Cable, Inc., *Memorandum
    Opinion and Order*, 4 FCC Rcd 6174 (CCB DFD 1989) (*Austin*).

[^33]: Petition at 7-8.

[^34]: Petition at 8. *See also* Exhibit E to Application at 6 and
    Figure 7.

[^35]: Petition at 8. *See also* Exhibit E to Application at 6.

[^36]: Petition at 8-9.

[^37]: Petition at 9.

[^38]: Petition at 9.

[^39]: Petition at 9.

[^40]: *Id.*

[^41]: Petition at 10.

[^42]: Petition at 10 n.14.

[^43]: Petition at 10.

[^44]: Letter from Broadcast Cable Bloomington, Inc. and Broadcast Data
    Corp. to Charles Dziedzic, Assistant Chief, Video Services Division,
    Mass Media Bureau (dated Oct. 1, 1995); Letter from Broadcast Cable
    Bloomington, Inc. and Affiliated MDS Corporation to Charles
    Dziedzic, Assistant Chief, Video Services Division, Mass Media
    Bureau (dated Oct. 1, 1995).

[^45]: Letter from Broadcast Cable Bloomington, Inc. to Charles
    Dziedzic, Assistant Chief, Video Services Division, Mass Media
    Bureau (dated Oct. 17, 1995).

[^46]: Letter from Todd A. Rowley to Barbara Kreisman, Chief, Video
    Services Division, Mass Media Bureau (dated May 28, 1997).

[^47]: 47 C.F.R. § 21.902(b) (1989).

[^48]: 47 C.F.R. § 21.902(c)(1)-(3) (1989).

[^49]: *E.g.*, Tekkom Inc., *Memorandum Opinion and Order*, 18 FCC Rcd
    19545 (WTB PSPWD 2003); WYSE Wireless Partnership, *Order on
    Reconsideration*, 13 FCC Rcd 11007 (MMB VSD 1998); Oklahoma Western
    Telephone Company, *Order on Reconsideration*, 13 FCC Rcd 8472 (MMB
    VSD 1998); Family Entertainment Network, Inc., *Order on
    Reconsideration*, 9 FCC Rcd 566 (CCB DFD 1994); Austin Movie and
    Sports Cable, Inc., *supra*.

[^50]: 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, *et
    al.*, General Docket No. 80-112, CC Docket No. 80-116, *et al*.,
    *Report and Order*, 94 FCC 2d 1203, 1264 ¶ 150 (1983). *See also* 47
    C.F.R. § 21.902(b)-(c) (1989).

[^51]: *E.g.*, WYSE Wireless Partnership, 13 FCC Rcd at 11011 ¶ 11;
    Oklahoma Western Telephone Company, 13 FCC Rcd at 8475 ¶ 7; Telcast,
    Inc., *Order on Reconsideration*, 13 FCC Rcd 8467, 8470 ¶ 7 (MMB VSD
    1998).

[^52]: *E.g.*, WYSE Wireless Partnership, 13 FCC Rcd at 11011 ¶ 11; 101
    Applications for Authority to Construct and Operate Multipoint
    Distribution Service Stations, *Memorandum Opinion and Order on
    Reconsideration*, 9 FCC Rcd 7886, 7897 ¶ 46 (1994); Jim Bolton d/b/a
    MDS of Louisiana, *Memorandum Opinion and Order*, 2 FCC Rcd 3207
    (CCB 1987).

[^53]: *E.g.*, Emerson College, *Memorandum Opinion and* Order, 19 FCC
    Rcd 4749, 4750 ¶ 7 (WTB BD 2004); Oklahoma Western Telephone
    Company, 13 FCC Rcd at 8475 ¶ 7; Telcast, Inc., *Order on
    Reconsideration*, 13 FCC Rcd 8467, 8470 ¶ 7 (MMB VSD 1998).

[^54]: *Austin*, 4 FCC Rcd at 6175 ¶ 11, 6176 ¶ 17.

[^55]: *See* Educational Television Association of Metropolitan
    Cleveland, Inc., *Memorandum Opinion and Order*, 18 FCC Rcd 15117,
    15120 (2003).

[^56]: 47 C.F.R. § 21.15(e) (1989).

[^57]: *See* Microband Corporation of America and American Telecasting
    of Portland, Inc., *Memorandum Opinion and Order*, 19 FCC Rcd 21947,
    21951 (WTB BD 2004).

[^58]: Broadcast Cable, Inc. Application, File No. 50122-CM-P-90 (filed
    Dec. 29, 1989).

[^59]: Petition at 10 n.14.

[^60]: In light of our conclusion that there are two independent bases
    for dismissing BCBI's application, we need not address BCBI's
    remaining arguments or the other grounds relied upon by the Division
    for dismissing the application.