**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

**ORDER ON RECONSIDERATION**

**Adopted: April 22, 2003 Released: April 24, 2003**

By the Chief, Public Safety and Private Wireless Division, Wireless
Telecommunications Bureau:

1.  *Introduction.* In this *Order on Reconsideration (Order)*, we
    address a Petition for Reconsideration filed on March 1, 1993 by
    Judith K. Vega (Vega),[^1] seeking reconsideration of a February 2,
    1993 action by the Domestic Facilities Division of the former Common
    Carrier Bureau[^2] in the above referenced file.[^3] The February 2,
    1993 action returned as unacceptable for filing Vega's application
    for authority to construct a new Multichannel Multipoint
    Distribution Service (MMDS) station at West Palm Beach, Florida. For
    the reasons stated below, we deny the Petition.

2.  *Background.* Vega filed the above referenced application on October
    9, 1991. The Commission makes provision for actual notice and an
    opportunity to be heard by parties in interest to such applications
    by requiring at Section 21.902(g) of its Rules[^4] that those who
    might be affected by the operation of a station, *i.e.,* all
    applicants, conditional licensees and licensees for stations
    stipulated to be studied by Section 21.902(c) of its Rules,[^5] be
    served a copy of the required interference analysis for the
    station.[^6] Contained in the Vega application was a certificate of
    service indicating that interference analysis had not been served
    upon MMDS Fort Pierce, Inc., a party in interest,[^7] along with the
    following accompanying statement:

> The Applicant was not able to obtain proper mailing address at the
> time of filing. Applicant will forward a copy of this study when
> address is available. Thus, waiver of Section 21.902(g) of the
> Commission's Rules is requested.[^8]

3.  On February 2, 1993, the staff returned Vega's application as
    unacceptable for filing[^9] for failure to serve all affected
    parties, pursuant to Section 21.902(g) of the Commission's
    Rules.[^10] On March 1, 1993, Vega filed the instant Petition.[^11]
    On November 9, 1994, in response to Vega's Petition, WJB Ft. Pierce
    Limited Partnership (WJB-TV) filed an opposition to the
    Petition.[^12]

4.  *Discussion.* As an initial matter, we decline to consider WJB-TV's
    opposition to Vega's Petition. Any opposition to a petition for
    reconsideration must be filed with the Commission within ten days
    after the petition is filed.[^13] WJB-TV filed its opposition over
    twenty months after the Petition was filed, and WJB-TV did not seek
    leave to file its opposition late. Accordingly, we will strike
    WJB-TV's opposition on our own motion.

5.  In the Petition, Vega claims that her request for waiver of Section
    21.902(g) should have been granted because "there was no available
    means by which the applicant could obtain the address of the
    previously proposed applications. . . ."[^14] We disagree. Pursuant
    to Section 21.19 of the Commission\'s Rules,[^15] an applicant
    seeking a waiver must make an affirmative showing that: (a) the
    underlying purpose of the rule will not be served, or would be
    frustrated, by its application in the particular case, and that
    grant of the waiver is otherwise in the public interest; or (b) the
    unique facts and circumstances of a particular case render
    application of the rule inequitable, unduly burdensome or otherwise
    contrary to the public interest. Applicants must also show the lack
    of a reasonable alternative.[^16] Vega's "waiver request" contained
    no affirmative showing that addressed either prong of the waiver
    standard.

6.  With respect to the first prong, we conclude that the required
    affirmative showing has not been met. Under Section 21.902(g) of the
    Commission's Rules, an applicant is required to provide affected
    parties actual notice and an opportunity to be heard with respect to
    facilities that may cause interference.[^17] Because Vega did not
    serve its interference analysis as required, all potentially
    affected parties did not have opportunity to analyze and respond in
    a timely manner as to the potential impact of Vega's proposed
    facilities. If the Commission had accepted the application filing
    and granted the waiver request, the orderly process contemplated by
    the Commission, by which the Commission staff readily identifies,
    addresses and resolves interference issues in a timely manner after
    oppositions are filed, would have been negated.[^18] As timely
    service of interference studies to all affected parties provides the
    Commission staff with technical information useful in evaluating
    applications,[^19] a waiver of the Section 201.902(g) notice
    requirement under the circumstances presented would not have been in
    the public interest.

7.  With respect to the second prong of the waiver requirement, we
    conclude that Vega also has not satisfied this standard. Applying
    the notice requirement in the instant case we do not believe, as
    Vega otherwise contends, that "there was no available means by which
    the applicant could obtain the address of the previously proposed
    applications . . . ."[^20] Indeed, Vega could have readily obtained
    the address of MMDS Fort Pierce, Inc. by a simple search of the
    Commission's public records. A review of these records shows that at
    the time Vega filed her application, MMDS Fort Pierce, Inc. had on
    file in the Commission's public records various documents indicating
    its address, which Vega could have readily obtained.[^21] Therefore,
    we believe that application of Section 201(g) in this instance is
    equitable. Because we find that there is an insufficient basis for
    granting a waiver of Section 21.902(g) of the Commission's Rules
    under the circumstances presented, we deny Vega's Petition.

8.  *Conclusion.* In view of all of the foregoing considerations, we
    affirm the Domestic Facility Division staff's return of the Vega
    application, which is the subject of this *Order.* Neither
    reconsideration of the decision nor reinstatement of the application
    is warranted under the circumstances presented.

9.  ACCORDINGLY, IT IS ORDERED, pursuant to Sections 4(i) and 405 of the
    Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i), 405 and
    Section 1.106 of the Commission's Rules, 47 C.F.R. § 1.106, that the
    Petition for Reconsideration filed by Judith K. Vega on March 1,
    1993 IS HEREBY DENIED.

+-----------------------------------------------------------------------+
| 1.                                                                    |
+-----------------------------------------------------------------------+

10. 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, 0.331.

> FEDERAL COMMUNICATIONS COMMISSION

D'wana R. Terry

Chief, Public Safety and Private Wireless Division

Wireless Telecommunications Bureau

[^1]: Petition for Reconsideration (filed Mar. 1, 1993)(Petition).

[^2]: Application Return Notification, dated Feb. 2, 1993, sent from
    Consuela Kearny, Industry Analyst, Domestic Facilities Div., Common
    Carrier Bureau, Federal Communications Commission, to Judith K.
    Vega. (Return Letter).

[^3]: This file number was originally 50444-CM-P-92 and later
    reformatted for entry into the Broadband Licensing System.

[^4]: 47 C.F.R. § 902(g).

[^5]: 47 C.F.R. § 902(c).

[^6]: Five Applications for Authority to Construct and Operate
    Multipoint Distribution Service Stations on the F-group Channels at
    Henryetta, Oklahoma, *Order on Reconsideration*, 13 FCC Rcd 11026,
    11037 ¶ 22 (1998) (*Five Applications*).

[^7]: Application, Certificate of Service.

[^8]: *Id.*

[^9]: 47 C.F.R. § 21.20(a) sets forth the standards for returning MDS
    applications as unacceptable for filing:

    Unless the Commission shall otherwise permit, an application will be
    unacceptable for filing and will be returned to the applicant with a
    brief statement as to the omissions of discrepancies if: (1) The
    applicant is defective with respect to completeness of answers to
    questions, informational showings, execution, or other matters of a
    formal character; or (2) The application does not substantially
    comply with the Commission's rules, regulations, specific requests
    for additional information, or other requirements.

[^10]: There was no Commission public notice of this action.

[^11]: Petition.

[^12]: Opposition to the Petition (filed Nov. 9, 1994).

[^13]: 47 C.F.R. § 1.106(g).

[^14]: Petition at 2.

[^15]: 47 C.F.R. § 21.19.

[^16]: *Id*.

[^17]: *See* Hinton Telephone Company, *et al.*, *Memorandum Opinion and
    Order on Reconsideration*, 10 FCC Rcd 11625, 11634-35 (1995),
    *quoting* Edna Cornaggia, *Memorandum Opinion and Order*, 8 FCC Rcd
    at 5444.

[^18]: *Id.*, *see also* *Five Applications*, 13 FCC Rcd at 111040 ¶ 27.

[^19]: *Id.*

[^20]: Petition at 2.

[^21]: Vega argues that addresses cannot be obtained from "newly
    submitted applications to which the FCC prohibits any party from
    reviewing and obtaining information about until the specific
    application is placed on Public Notice." *Id.* a 2. This argument is
    not persuasive since even if that were the case, Vega still could
    have obtained MMDS Fort Pierce, Inc.'s address from either then
    non-recent or non-application-related filings. *See, e.g.,* Consent
    to Transfer Control, File No. 52856-CM-TC-90, Aug. 6, 1990; MMDS
    Fort Pierce, Inc.'s Licensee Qualification Report (FCC Form 430),
    July 13, 1990.