**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of Applications of | *  | File Nos. BPMDC-9200221      |
|                                  | *) |                              |
| LINE OF SITE, INC.               | ** | BPMDC-9200414                |
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| For Authorization to Operate     | *  |                              |
| Commercial Instructional         | *) |                              |
| Television Fixed Service         | ** |                              |
| Stations                         |    |                              |
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| on the A-and C-Group Channels at | *) |                              |
| Globe, Arizona                   | ** |                              |
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|                                  | )\ |                              |
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**MEMORANDUM OPINION AND ORDER**

**Adopted: April 16, 2003 Released: April 23, 2003**

By the Commission:

1.  In this *Memorandum Opinion and Order*, we deny the Application for
    Review[^1] filed by Line of Site, Inc. (Line of Site) on July
    17, 2000. Line of Site seeks reinstatement *nunc pro tunc* and grant
    of its applications for authorization to operate commercial
    Instructional Television Fixed Service (ITFS) stations on the A-and
    C-group channels at Globe, Arizona.

2.  *Background*. In 1991, the Commission permitted wireless cable
    entities to use available ITFS channels for commercial
    operations.[^2] The Commission provided that only wireless cable
    entities offering a reasonable expectation of prompt wireless cable
    service would be able to apply for licenses for ITFS frequencies. In
    sum, the Commission required that a wireless cable applicant must
    hold a conditional license, a license, or a lease, or must have
    filed an unopposed application for at least four Multipoint
    Distribution Service (MDS) channels to use in conjunction with the
    facilities proposed on the ITFS frequencies.[^3] The applicant must
    also show that there are no unused MDS channels available for
    application, purchase, or lease that could be used in lieu of the
    ITFS frequencies for which the applicant applied.[^4] A wireless
    cable entity may apply for ITFS frequencies at the same time it
    applies for the related MDS frequencies, but if that MDS application
    is opposed by a timely filed mutually exclusive application or
    petition to deny, the application for ITFS facilities will be
    returned.[^5] A wireless cable entity may be licensed on ITFS
    channels in areas where at least eight other ITFS channels remain
    available in the community for future ITFS use.[^6] Finally, a
    wireless cable entity is subject to the MDS interference protection
    requirements in Section 21.902 of the Commission's Rules.[^7]
    Consequently, a wireless cable entity must file an interference
    study with its application.[^8] These rules became effective on
    January 2, 1992.[^9]

3.  On January 2, 1992, Line of Site filed two applications to operate
    ITFS stations on the A Group and C Group Channels in Globe,
    Arizona.[^10] On April 21, 1999, the Video Services Division of the
    former Mass Media Bureau (Bureau) dismissed the applications for
    failure to comply with Sections 74.990(a), (d) and (f) of the
    Commission's Rules. First, the Video Services Division found that
    Line of Site failed to show that at least eight other ITFS channels
    would remain available in the community for future ITFS use.
    Additionally, the Division determined that Line of Site did not show
    that there were no MDS or multichannel MDS (MMDS) channels available
    for application, purchase or lease that could be used in lieu of the
    applied for ITFS channels. Finally, it found that Line of Site's
    proposed facilities would cause harmful interference to previously
    authorized stations.[^11]

4.  On May 21, 1999, Line of Site requested reconsideration of the
    dismissal of its applications.[^12] On June 15, 2000, the Video
    Services Division denied Line of Site's reconsideration petition and
    affirmed the dismissal of the applications.[^13] On July 17, 2000,
    Line of Site requested review of the denial of its reconsideration
    petition.[^14] Line of Site asserts that it did not violate the
    interference protection requirements. Line of Site asserts that its
    applications were consistent with Part 74 even though they did not
    include a frequency analysis with respect to Stations WLX470, WNC351
    and WHR919.[^15] Specifically, Line of Site states that the licensee
    of these stations, People's Choice TV, had agreed to resolve any
    actual frequency interference.[^16]

5.  With regard to ITFS frequency availability, Line of Site argues that
    its applications were grantable, consistent with the Commission's
    requirements regarding frequency availability when it first filed
    its applications in 1992.[^17] Line of Site argues that it, in
    essence, is being penalized by the Commission staff's delay in
    processing Line of Site's applications because the subject
    applications complied with Section 74.990(a) when filed.[^18] Line
    of Site asserts that the effect of the delay created post hoc
    conditions that made the prospect of granting Line of Site's
    applications inconsistent with the Commission's Rules.[^19]

6.  Finally, Line of Site maintains that its applications did satisfy
    Section 74.990(d) in that there were no 6-MHz MDS or MMDS channels
    available at the time it applied for the subject ITFS channels.[^20]
    Thus, Line of Site asserts it could not use Channel 2A, an available
    4 MHz channel, in lieu of the 6 MHz channel that it applied for in
    its application.[^21]

7.  *Discussion*. We have reviewed the Application for Review and find
    that the Bureau staff properly decided the matters raised. In
    particular, we agree with the Bureau's analysis and conclusion that
    Line of Site failed to meet the requirements of Section 74.990(f) of
    the Commission's Rules which state that wireless cable applicants
    and licensees of ITFS facilities must comply with the interference
    protection requirements of Section 21.902 of the Commission's
    Rules.[^22] Further, Section 74.903(a) of the Commission's Rules
    requires that an applicant prevent co-channel and adjacent channel
    interference with other previously proposed ITFS applicants or
    existing licensees.[^23] Line of Site acknowledges in its
    Application for Review that it "did not include frequency analyses"
    of stations with which its proposed operations would interfere.[^24]
    Thus, we agree with the Bureau's conclusion that Line of Site's
    applications to operate ITFS stations did not meet the interference
    protection requirements of the Commission's Rules.[^25] Accordingly,
    we affirm the dismissal of the applications.

8.  We believe, however, that one issue warrants further comment. Line
    of Site argues that the Bureau's decision must be overturned as it
    was not required to submit interference studies "because LOSI \[Line
    of Site, Inc.\] and People's Choice TV, Inc., the licensee of these
    \[interfered with\] stations, had agreed to resolve any actual
    frequency interference, as is encouraged by the Commission's
    Rules."[^26] We do not agree. On the contrary, the Bureau followed
    well-established Commission precedent when it returned Line of
    Site's applications for not including the required interference
    studies. In this particular instance, although Section 21.902(a)
    states that applicants are expected to cooperate fully in attempting
    to resolve problems of potential interference before bringing the
    matter to the attention of the Commission,[^27] Section 21.902(c)
    also states that applicants must submit interference studies with
    their applications.[^28] Line of Site's assertions that it has
    committed to make every effort to avoid harmful interference to
    others and to cooperate in good faith should any interference occur
    in the future does not excuse its failure to submit detailed
    interference studies as required by Section 21.902.[^29]

9.  The Section 21.902(c) requirement of an applicant to submit
    interference analyses at the time it files its application is
    separate from the Section 21.902(a) requirement of an applicant to
    make exceptional efforts to avoid harmful interference and to
    cooperate fully to resolve problems of potential interference.[^30]
    Nor would an applicant's offer to file curative amendments at some
    later time excuse it from submitting all required interference
    studies at the time the applications are initially filed.[^31] Based
    upon these considerations, we conclude that Line of Site failed to
    comply with the technical requirements set forth in Section 21.902
    regarding interference protection and failed to demonstrate that it
    is technically qualified to be an MDS licensee as required by
    Section 21.900. Thus, we conclude that these applications were
    properly returned as unacceptable for filing.[^32] Based on the
    record, the Bureau determined that Line of Site's applications would
    cause harmful interference to previously authorized stations.[^33]
    Line of Site has admitted in the record of this proceeding that it
    did not provide any interference studies.[^34] In light of this
    evidence, we agree with the Bureau that Line of Site was not in full
    compliance with Section 21.902, and thus, its applications were
    properly returned pursuant to the Commission's Rules.

10. Because we find dispositive Line of Site's failure to submit the
    required interference showings with its applications and to give
    notice, by service of these studies, to the affected parties, it is
    unnecessary to address petitioner\'s other arguments. As discussed
    in detail above, interference analyses are necessary at the time of
    application filing due to the extensive planning and engineering
    involved in the MDS licensing process.

11. Accordingly, IT IS ORDERED that pursuant to Sections 4(i) and 5(c)
    of the Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i),
    155(c), and Section 1.115 of the Commission's Rules, 47 C.F.R. §
    1.115, the Application for Review filed by Line of Site, Inc. on
    July 17, 2000 IS DENIED.

> FEDERAL COMMUNICATIONS COMMISSION
>
> Marlene H. Dortch
>
> Secretary

[^1]: Line of Site, Inc., Application for Review (filed July 17, 2000)
    (Line of Site AFR).

[^2]: *See* 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, Instructional Television Fixed Service, and
    Cable Television Relay Service, *Second Report and Order*, 6 FCC Rcd
    6792, 6801-06 (1991) (*Second Report and Order*); *see also* 47
    C.F.R. § 74.990.

[^3]: *See* 47 C.F.R. § 74.990(c) (1992).

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

[^5]: *Id*. That entity can reapply for its ITFS facilities, if still
    available, upon grant of its MDS application; *see Second Report and
    Order*, 6 FCC Rcd at 6804 (1991).

[^6]: *See* 47 C.F.R. § 74.990(a) (1992).

[^7]: *See Second Report and Order*, 6 FCC Rcd at 6803-04.

[^8]: *See* 47 C.F.R. § 21.902(c) (1992).

[^9]: *See* 56 Fed. Reg. 57808 (1991).

[^10]: File Nos. BPMDC-9200221 and BPMDC-9200414.

[^11]: Letters from Sharon M. Bertelsen, Supervisory Attorney, Video
    Services Division, Mass Media Bureau to J. Stephen Rizley, Line of
    Site, Inc. (April 21, 1999). With respect to the A Group
    application, the Bureau found that Line of Site\'s application would
    cause harmful interference to Stations WND273 and WHF226. With
    respect to the C Group application, the Bureau found that Line of
    Site\'s application would cause harmful interference to Stations
    WLX470, WNC351 and WHR919.

[^12]: Line of Site, Inc., Petition for Reconsideration (May 21, 1999).

[^13]: Letter from Charles E. Dziedzic, Assistant Chief, Video Services
    Division, Mass Media Bureau to J. Stephen Rizley, Line of Site, Inc.
    (June 15, 2000).

[^14]: Line of Site AFR.

[^15]: *Id*. at 4.

[^16]: *Id.*

[^17]: *Id.* at 2.

[^18]: *Id.*

[^19]: *Id.*

[^20]: *Id.* at 3.

[^21]: *Id.*

[^22]: 47 C.F.R. § 74.990; *see also* 47 C.F.R. § 21.902.

[^23]: 47 C.F.R. § 74.903.

[^24]: Line of Site AFR at 3-4.

[^25]: *See* June 15, 2000, Letter, at ¶ 2.

[^26]: Line of Site AFR at 4.

[^27]: 47 C.F.R. § 21.902(a).

[^28]: *See* 47 C.F.R. § 21.902(c).

[^29]: *See 4330 Applications for Authority to Construct and Operate
    Multipoint Distribution Service Stations at 62 Transmitter Sites*,
    10 FCC Rcd 1335, 1470 (1994), *aff'd per curiam sub. nom A/B
    Financial, Inc. v. FCC*, 76 F.3d 1244 (D.C. Cir. 1995) (*4330 MDS
    Applications MO&O*); *See e.g., G.C. Cooper,* 8 FCC Rcd 7007, 7008
    (Dom. Fac. Div. 1993) (An applicant\'s general statement that he
    would use \'all legitimate engineering techniques\' does not
    constitute the kind of showing discussed in the *MMDS Allocation
    Order* and required under 47 C.F.R. § 21.901(d)(7).\").

[^30]: *See 4330 MDS Applications MO&O*, 10 FCC Rcd at 1342; Hinton
    Telephone Company, *Memorandum Opinion and Order on
    Reconsideration,* 10 FCC Rcd 11625 (1995), *aff'd per curiam sub.
    nom Knollwood, Ltd. v. FCC*, 84 F.3d 1452 (D.C. Cir. 1996); *see
    also* 47 C.F.R. § 21.31.

[^31]: *See* RuralVision Central, Inc., *Order on Reconsideration*, 12
    FCC Rcd 21739, 21746 ¶ 18 (MMB VSD 1997); Marylan J. Benson*, Order
    on Reconsideration,* 7 FCC Rcd 4668, 4669, n.9. (Dom. Fac. Div.
    1992); Earl V. Levels, *Memorandum Opinion and Order*, 8 FCC Rcd
    5506, 5507 ¶ 8 (Dom. Fac. Div. 1993).

[^32]: *New Channels Communications, Inc.,* 57 Rad. Reg. 2d 1600, 1602
    (P&F 1985) (\"In our view, an MDS application which does not contain
    the important and essential technical showing required by §
    21.902(c) cannot be characterized as complete, or in substantial
    compliance with the Commission\'s rules and regulations, as required
    by the criteria for acceptability outlined in rule § 21.20(a).\").

[^33]: *See* n.Error: Reference source not found *supra*.

[^34]: Line of Site AFR at 3-4.