**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+----+------------------------------+
| In the Matter of the Application | *  | File No. 50123-CM-P-92       |
| of                               | *) |                              |
|                                  | ** |                              |
| CHAMPION INDUSTRIES, INC.        |    |                              |
|                                  | *  |                              |
| For Authority to Construct and   | *) |                              |
| Operate a New                    | ** |                              |
|                                  |    |                              |
| Multipoint Distribution Service  | *  |                              |
| Station on the                   | *) |                              |
|                                  | ** |                              |
| F-Group Channels at Springfield, |    |                              |
| Missouri                         | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
|                                  |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
|                                  |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
|                                  |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
|                                  |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
+----------------------------------+----+------------------------------+

**ORDER ON RECONSIDERATION**

**Adopted: June 30, 2003 Released: July 22, 2003**

By the Commission: Commissioner Copps issuing a separate statement.

# introduction

1.  In this *Order on Reconsideration*, we consider a petition for
    reconsideration (Petition) filed on September 20, 2001, by Champion
    Industries Inc. (Champion).[^1] Champion seeks reconsideration of a
    *Memorandum Opinion and Order* (*MO&O*)[^2] in which the Commission
    affirmed the action of the Video Services Division (Division) of the
    former Mass Media Bureau regarding the above-captioned application.
    The Division dismissed Champion's above-captioned application to
    construct and operate a Mulitchannel Multipoint Distribution Service
    (MMDS) station on the F Group channels at Springfield, Missouri.[^3]
    For the reasons stated below, we deny Champion's Petition.

# background

## Champion's MMDS License

2.  Champion was the original 1983 conditional licensee for a MMDS
    station in Springfield Missouri using the F Group channels.[^4] When
    Champion failed to complete construction of the station within the
    time allotted by its conditional license, its representative met
    with Robert James, Chief, Domestic Radio Branch, Domestic Facilities
    Division, former Common Carrier Bureau, to inquire about an
    extension of the construction period.[^5]

3.  Champion claims that Mr. James informed its representative that
    processing an application for extension of time would be burdensome
    for the Commission and that the same result could be achieved if
    Champion submitted its conditional license for cancellation and
    immediately filed a new application. Champion submitted its
    conditional license for cancellation on September 26, 1991, and
    filed the subject new application on October 7, 1991. However, its
    new application was defective because it did not comply with the
    Commission's Rules in two major respects: (a) it lacked an
    engineering showing documenting that Champion's proposed new
    facility would not cause interference to nearby previously proposed
    or authorized MMDS stations;[^6] and (b) Champion did not serve
    interference analyses on all affected parties.[^7] Accordingly,
    Champion's new application was dismissed by the Division on March 7,
    1995.

## Petition for Reconsideration of the Division Order

4.  On April 28, 1995, Champion filed a petition for reconsideration of
    the Division's dismissal of Champion's new application.[^8] Therein,
    Champion conceded that it failed to submit interference analyses and
    did not serve other parties, as required by the Rules. However, it
    argued that it was not required to conform to the relevant rules
    because the interference analyses and service on other parties would
    have involved only "lottery loser" applications that could not be
    granted under any circumstances.[^9] Moreover, Champion argued that
    it was Commission "policy" to ignore the relevant rules with respect
    to applications similar to Champion's application.[^10]

5.  The Division denied Champion's 1995 Petition on September 7, 1999,
    rejecting Champion's harmless omission argument. The Division
    demonstrated that Champion's basic premise was wrong: the
    Commission, in fact, had granted applications Champion characterized
    as "lottery losers." As explained in the Division's Order, the MMDS
    lottery procedures required evaluation of the qualifications of the
    initial winner of a lottery. If the putative winner lacked the
    necessary qualifications, the next lottery selectee with the
    requisite qualifications -- a "lottery loser" under Champion's
    analysis -- could be awarded a license.[^11] Indeed, this occurred
    with respect to a MMDS station, assigned call sign WMI324, located
    0.04 miles from Champion's proposed site. Had Champion conducted an
    interference analysis with respect to Station WMI324 before it filed
    its new application -- as the Rules clearly required it to do -- it
    would have found its new application was defective and subject to
    dismissal for failure to provide the requisite adjacent channel
    protection to Station WMI324.[^12]

6.  The *Video Services* *Order on Reconsideration* also rejected
    Champion's argument about a supposed Commission "policy" that
    permitted Champion to ignore the interference analysis requirement.
    The circumstances that Champion relied upon to show that such a
    policy existed were readily distinguishable from the circumstances
    surrounding Champion's new application.[^13] Finally, as an
    independent ground for dismissal of Champion's application, the
    Division cited Champion's failure to serve other affected parties as
    required by the Rules.[^14]

## Application for Review

7.  Champion filed an Application for Review of the *Video Services
    Order on Reconsideration* on October 7, 1999.[^15] Therein, Champion
    reiterated its argument that Commission staff recommended that
    Champion file a new application rather than submit a request for
    extension of time in which to construct its originally authorized
    facilities.[^16] Champion further argued that its application did
    not require interference analyses in any event because, in its new
    application, Champion had stated it would provide interference
    protection to any applicant that might be chosen in the future.[^17]
    Champion also argued that it was being afforded unfair and disparate
    treatment because applications with defects identical to those in
    Champion's new application had been granted by the Commission.[^18]
    Champion was silent about its failure to serve affected parties; the
    defect that the Division found was an independent basis for
    sustaining dismissal of Champion's new application.[^19]

8.  The Commission denied Champion's application for review on August
    21, 2001.[^20] The Commission, in its *MO&O*, again explained the
    need for an interference analysis when applicants filed for
    facilities that would conflict with the facilities specified in
    applications filed in September of 1983. The Commission noted that
    the legality of its requirement for interference analyses was well
    settled and had been upheld on appeal.[^21] The Commission also
    found that *McDougald*, cited by the Division in its decision,[^22]
    was precisely on point: the filing of interference analyses was a
    "basic requirement in determining the acceptability of an
    application."[^23] Further, there was nothing in the Rules or case
    law suggesting that a mere promise not to interfere with other
    stations was an acceptable substitute for interference analyses.
    Moreover, the Commission found that, even if Champion could prevail
    in its argument that it was not required to submit interference
    analyses, it still could not overcome the fact -- undisputed by
    Champion -- that Champion failed to serve affected parties, thereby
    depriving them of notice and the opportunity to be heard.[^24]

## Petition for Reconsideration of Denial of the Application for Review

9.  In its instant Petition, Champion argues that reconsideration is
    warranted because the Commission "failed to address certain record
    evidence"[^25] in its disposition of Champion's Application for
    Review. The evidence Champion refers to relates to (1) the "nature
    of the technical showing required with respect to 1983 lottery
    losers whose applications were legally impossible to
    resurrect;"[^26] and (2) Champion's alleged disparate treatment
    relative to similarly situated applicants.[^27] In addition,
    Champion raises a contention not made in its reconsideration
    petition. It contends that, because applications not chosen in the
    lottery were ungrantable, the applicants were not "affected parties"
    within the meaning of that term in Section 21.902(g) the Rules;[^28]
    and, therefore, that Champion was under no obligation to serve
    them.[^29]

# DISCUSSION

10. As an initial matter, Champion's argument that it was not required
    to effect service because there were no "affected parties"
    associated with Champion's new application is factually incorrect.
    As the Division noted, one of the pending lottery-losing
    applications that Champion failed to study, Station WMI324, was
    directly and materially affected by Champion's application. Station
    WMI324 became a subsequently granted adjacent channel selectee;
    thus, had Champion's application been granted, Champion's station
    would have caused adjacent channel interference to Station
    WMI234.[^30]

11. We also disagree that the Commission ignored "record evidence" when
    it denied Champion's application for review.[^31] Indeed, Champion's
    reconsideration petition deals, not with evidence, but only with its
    arguments that the Commission found unpersuasive when it denied the
    application for review. There, the Commission affirmed the "basic
    requirement" to submit interference analyses, which if ignored
    rendered an application defective and subject to dismissal.[^32] The
    Commission again cited judicial precedent sustaining its
    interpretation of the interference analysis rule.[^33] Champion's
    repeated argument that the rule did not apply in its case because
    the affected applications were ungrantable "lottery losers" is
    simply without merit.[^34] As noted, *supra*, dormant applications
    that had not been chosen in the lottery could be revived if a
    lottery winner proved unqualified. Thus, dormant applications were
    not, as Champion would have it, ungrantable as "a matter of
    law."[^35] Indeed, the Division cited to one such application that
    was actually granted.[^36]

12. In support of its disparate treatment argument, Champion attempts to
    distinguish the cases cited by the Commission in which applications
    of other parties, situated similarly to Champion, had been
    dismissed. Champion avers that those cases are distinguishable
    because those applicants submitted deficient interference analyses;
    whereas, in the instant case, Champion filed no interference
    analyses at all.[^37] That is a distinction without a legal
    difference. The cases cited by the Commission stand for the
    proposition that, absent a waiver, all MMDS applicants had to submit
    complete and accurate interference analyses or have their
    applications dismissed. The Commission need not have said more when
    it found Champion's "disparate treatment" argument unavailing.

# CONCLUSION

13. In sum, there is nothing in Champion's reconsideration petition that
    would lead us to conclude that the Commission failed to suitably
    address Champion's arguments in its application for review. Looking
    only within the four corners of the Commission's *Memorandum Opinion
    and Order*, it is clear that all of Champion's arguments were
    considered and that, as initially found in the *Video* *Services
    Order on Reconsideration*, Champion was wrong in its contention that
    it did not have to conform to the requirements of Section 21.902(c)
    of the Commission's Rules concerning interference analyses. It was
    equally wrong when it argued that it did not have to conform to the
    requirements of Section 21.902(g) of the Commission's Rules
    concerning service on other parties.[^38] Accordingly, we are
    denying Champion's petition for reconsideration.

# ORDERING CLAUSE

14. Accordingly, IT IS ORDERED that pursuant to Sections 4(i) and 405(a)
    of the Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i)
    and 405(a), and Section 1.106 of the Commission\'s Rules, 47 C.F.R.
    §§ 1.106, the Petition for Reconsideration filed by Champion
    Industries, Inc. on September 20, 2001, IS DENIED.

    FEDERAL COMMUNICATIONS COMMISSION

    Marlene H. Dortch

    Secretary

# separate STATEMENT OF COMMISSIONER COPPS {#separate-statement-of-commissioner-copps .unnumbered}

*RE:* *Champion Industries, Inc. Application for Authority to Construct
and Operate a New Multipoint Distribution Service Station on the F-Group
Channels at Springfield, Missouri.*

This decision troubles me because it appears that strange Commission
policy and questionable Commission advice to Champion Industries
contributed to that company losing its MMDS license. A quick review of
the facts is instructive. Champion won a license through the lottery
process in 1983. They were unable to meet their construction deadline
and came to the Commission for advice. Commission staff advised them to
cancel their license and reapply rather than seeking an extension of
time. Champion relied on this advice and did just this in 1991.

The Commission did not act on the application for four years. At that
time, despite the advice to reapply, the FCC denied Champion's
application. The denial was based on a failure to perform an
interference analysis. This analysis had not been required of the 1983
lottery winners, but was required by the time Champion reapplied in
1991. The analysis would have revealed another applicant a mere .4 miles
away from Champion. This second applicant had lost the 1983 lottery, but
its application remained on file. The second application had been
languishing at the Commission for years unaddressed. It would have been
denied had it been addressed earlier because of its proximity to
Champion. But when Champion cancelled its license and reapplied, the
Commission's delay resulted in the lottery loser taking precedence over
the licensee.

This tortuous path and unfortunate result is due in large part to
Commission policy and advice. It may be unavoidable because of our rules
and our policy position that licensees rely on staff advice at their own
risk, but it does not please me to vote for it. At a minimum we should
use this Order as a call to recognize our mistakes and find a way to
make sure that this history is not repeated.

[^1]: Champion Petition for Reconsideration, File No. 50123-CM-P-92,
    (filed Sep. 20, 2001) (Petition).

[^2]: Champion Industries, Inc., *Memorandum Opinion and Order*, 16 FCC
    Rcd 16040 (2001) (*MO&O*).

[^3]: Champion Industries, Inc., *Order on Reconsideration*, File No.
    50123-CM-P-92, (MMB VSD 1999) (*Video* *Services Order on
    Reconsideration*). The Multipoint Distribution Service (MDS) is a
    domestic public radio service rendered on microwave frequencies from
    one or more fixed stations transmitting to multiple receiving
    facilities located at fixed points. MDS also may encompass
    transmissions from response stations to response station hubs or
    associated fixed stations. *See* 47 C.F.R. § 21.2. The Multichannel
    Multipoint Distribution Service (MMDS) employs the frequency band
    2596 MHz to 2644 MHz and associated 125 kHz channels. *Id*.

[^4]: *See* Petition at 2-4. The F Group channels constitute frequencies
    at 2602-2608 MHz, 2614-2620 MHz, 2626-2632 MHz and 2638-2644 MHz
    (designated as Channels F1, F2, F3 and F4, respectively, with the
    four channels designated as the F Group channels); and Channels I6
    and I14, as listed in 47 C.F.R. § 74.939(j). *See* 47 C.F.R. §
    21.901(b)(5).

[^5]: *See* Champion Petition at 5. Licensees were granted licenses
    subject to certain conditions including, but not limited to,
    construction deadlines. Section 21.43 of the Commission's Rules
    provides in relevant part that:

    > \(a\) Each license for a radio station for the services included
    > in this Part shall *specify as a condition* therein the period
    > during which construction of facilities will be completed and the
    > station made ready for operation. Construction may not commence
    > until the grant of a license, and must be completed by the date
    > specified in the license as the termination date of the
    > construction period. Except as may be limited by § 21.45(b) or
    > otherwise determined by the Commission for any particular
    > application, the following shall be the maximum construction
    > periods for each service: (1) For stations in the Point-to-Point
    > Microwave Radio and Digital Electronic Message Service, a maximum
    > of 18 months from the date of the license grant; (2) For all other
    > stations licensed under this Part, a maximum of 12 months from the
    > date of the license grant.\
    > (b) Each license for a radio station for the services included in
    > this part shall also *specify as a condition* therein that upon
    > the completion of construction, each licensee must file with the
    > Commission a certification of completion of construction using FCC
    > Form 494A, certifying that the facilities as authorized have been
    > completed and that the station is now operational and ready to
    > provide service to the public, and will remain operational during
    > the license period, unless the license is submitted for
    > cancellation. *See* 47 C.F.R. § 21.43 (1991); 52 FR 37782 (1987).
    > (Emphasis added).

[^6]: *See* 47 C.F.R. § 21.902 (b) and (c) (1991). It should not be
    assumed that Champion was relying on interference analyses filed
    with its original application when if filed its new application.
    Champion was neither required to, nor did it, file such analyses
    with the original application. That application was one of a group
    of applications submitted on September 9, 1983. For that group of
    applications, the Commission had waived the interference analysis
    requirements of Section 22.902(c) of the Commission's Rules, 47
    C.F.R. § 22.902(c) (1991). That waiver was no longer in effect when
    Champion filed its new application on October 7, 1991. *See* *Video
    Services Order On Reconsideration* ¶ 7, *citing* 20 Applications for
    Authority to Construct and Operate Multipoint Distribution Service
    Stations at Two Transmitter Sites, 10 FCC Rcd. 11233, 11234-38
    (1995).\
      

[^7]: Section 21.902(g) of the Commission's Rules provided "all
    interference studies submitted pursuant to paragraph (c) of this
    section shall be served on all licensees and permittees of, and
    applicants for the stations considered in such studies. This service
    shall occur on or before the date of submission and a list of all
    parties so served shall be submitted with the study." 47 C.F.R. §
    21.902(g) (1991).

[^8]: Champion Petition for Reconsideration, File No. 50123-CM-P-92,
    (filed April 28, 1995) (1995 Petition).

[^9]: *See* 1995 Petition at 3-4, 8-9. Champion asserts that "\[t\]o
    require \[it\] to have treated irredeemable lottery losers in its
    application would have been a senseless, time-consuming ritual with
    no conceivable purpose." 1995 Petition at 9.

[^10]: *See* 1995 Petition at 2, 4.

[^11]: Section 1.824(a) of the Commission's Rules states that "\[i\]f
    the Commission determines that the tentative selectee is qualified,
    it shall grant the application. In the event that the tentative
    selectee's application is denied, a second random selection will be
    conducted." *See* 47 C.F.R. § 1.824(a) (1991).

[^12]: *See Video Services Order on Reconsideration* ¶ 8 n. 5.

[^13]: *See Video Services Order on Reconsideration* ¶ 8. In rejecting
    Champion's argument, the Video Services Division cited McDougald
    Broadcasting Corp., *Memorandum Opinion and Order*, 12 FCC Rcd
    10034, 10035-10036 (1997). In *McDougald*, as in the instant case,
    the petitioner had filed an application for an MMDS station in 1983,
    and, having failed to construct, submitted its license for
    cancellation in 1991. The petitioner then, as here, filed a new
    application for authority to construct an MMDS station, specifying
    the same facilities as in the canceled station, and did not provide
    the required interference analyses. This subsequent application was
    returned as unacceptable for filing for failure to provide the
    interference analyses required at the time of filing in 1991.

[^14]: *See Video Services Order on Reconsideration* ¶ 10; *see also* 47
    C.F.R. § 21.902(g) (1991).

[^15]: Champion Application for Review, File No. 50123-CM-P-92, (filed
    Oct. 7, 1999). (Application for Review).

[^16]: *See* Application for Review at 4--6. We note that Champion does
    not claim or even imply that the staff advised Champion it could
    file a new application without the interference analyses required by
    47 C.F.R. § 21.902(c) (1991).

[^17]: *See* Application for Review at 7.

[^18]: *Id.*

[^19]: *See Video Services Order on Reconsideration* ¶ 10.

[^20]: Champion Industries, Inc., *Memorandum Opinion and Order*, 16 FCC
    Rcd 16040 (2001) (*MO&O*).

[^21]: *See MO&O* at 16041 ¶ 5, *citing* Hinton Telephone Company,
    *Memorandum Opinion and Order on Reconsideration* 10 FCC Rcd 11625,
    11638 (1995), *aff\'d sub nom. Knollwood, Ltd. v. FCC*, 84 F.3d 1452
    (D.C. Cir. 1996). As the Commission had previously held, \"an
    applicant filing for a \... cancelled 1983 transmitter site must be
    required to show that their proposed transmitter site would not
    cause harmful interference to other previously authorized or
    proposed stations and otherwise meet the requirements for waiver.\"

[^22]: *See MO&O* at 16041 ¶ 5.

[^23]: *Id*.

[^24]: *See MO&O* at 16041 ¶ 5, *citing* Edna Cornaggia, *Order on
    Reconsideration,* 8 FCC Rcd 5442 (MMB Domestic Facilities Division
    1993).

[^25]: *See* Petition at 6 - 8.

[^26]: *Id.*

[^27]: *See id.*

[^28]: 47 C.F.R. § 21.902(g) (1991).

[^29]: *See* Petition at 8. *See also* n. Error: Reference source not
    found *supra.*

[^30]: *See Video Services Order on Reconsideration* ¶ 8.

[^31]: *See* Petition at 1.

[^32]: *See* *MO&O* at 16041-42 ¶ 5.

[^33]: *See* ¶ 8 n. Error: Reference source not found *supra*.

[^34]: *See* Petition at 6 -- 8.

[^35]: *Id*.

[^36]: *See* ¶ 5 n. Error: Reference source not found *supra*.

[^37]: *See* Petition at 8.

[^38]: 47 C.F.R. § 21.902(c), (g) (1991).