**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of Applications of | *  | File No. 61246-CM-P-91       |
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| MOUNT PLEASANT PARTNERS ALPHA    | ** | File No. 61247-CM-P-91       |
| MOUNT PLEASANT PARTNERS BETA     |    |                              |
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| Applications for Authority to    | *) |                              |
| Construct and Operate            | ** |                              |
| Multichannel Multipoint          |    |                              |
| Distribution Service (MMDS)      | *  |                              |
| Stations in Mount Pleasant,      | *) |                              |
| Michigan                         | ** |                              |
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**MEMORANDUM OPINION AND ORDER**

**Adopted: June 24, 2003 Released: July 2, 2003**

By the Commission:

# INTRODUCTION

1.  We have before us a consolidated application for review (AFR) filed
    by Mount Pleasant Partners Alpha and Mount Pleasant Partners Beta
    (collectively, Mount Pleasant) on February 22, 2000.[^1] The AFR
    challenges the action taken by the Video Services Division of the
    former Mass Media Bureau (Division) on January 20, 2000.[^2] By
    letter, dated January 20, 2000, the Division affirmed the dismissal
    of applications filed by Mount Pleasant Partners Alpha[^3] and Mount
    Pleasant Partners Beta[^4] for authority to construct and operate
    Multichannel Multipoint Distribution Service (MMDS) stations on the
    E and F Group channels, respectively, in Mount Pleasant, Michigan.
    For the reasons discussed below, we deny the AFR to the extent that
    it seeks reinstatement and grant of the E Group Application, and we
    dismiss the AFR with respect to the F Group Application.

# BACKGROUND

2.  On August 1, 1991, Mount Pleasant filed applications for authority
    to construct and operate MMDS stations on the E and F Group
    channels, respectively, in Mount Pleasant, Michigan. On March 3,
    1993, Mount Pleasant submitted interference studies for a group of
    forty-five previously proposed MMDS applications. The submissions
    were accompanied by a statement that there had been no service of
    the interference studies, as required by Section 21.902(g), due to
    an inability to obtain the necessary addresses from the Commission.
    The Domestic Radio Branch (Branch), Domestic Facilities Division
    (DFD) of the former Common Carrier Bureau returned the applications
    to Mount Pleasant on August 11, 1993 for failure to serve all
    affected parties pursuant to Section 21.902(g) and/or failure to
    consider all previously-proposed or authorized Instructional
    Television Fixed Service (ITFS) or MMDS stations pursuant to
    Sections 21.902(c) and/or 21.902(i).[^5] However, on September 10,
    1993, the DFD set-aside the August 11 return of the applications and
    reinstated the applications *nunc pro tunc* to allow Mount Pleasant
    an opportunity to effectuate service of the interference analyses
    using addresses for the Big Rapids applicants that the DFD
    supplied.[^6]

3.  Almost a year later, on August 31, 1994, the Branch dismissed the
    Mount Pleasant applications.[^7] With regard to the E Group
    Application, the Branch found that Mount Pleasant Partners Alpha
    failed to include the analysis of the potential for harmful
    co-channel interference for previously proposed co-channel Station
    WGW275 in Saginaw, Michigan, as required by Section
    21.902(c)(1).[^8] In addition, the Branch determined that the E
    Group Application was defective because Mount Pleasant Partners
    Alpha used different specifications to achieve a
    desired-to-undesired signal ratio of 45 dB with respect to the Big
    Rapids applications.[^9] With regard to the F Group Application, the
    Branch found that Mount Pleasant Partners Beta failed to include the
    analysis of the potential for harmful co-channel interference for
    previously-proposed co-channel Station WMI369 in Saginaw, Michigan,
    as required by Section 21.902(c)(1).[^10] Based on the above, the
    Branch dismissed the E and F Group Applications.

4.  On October 11, 1994, Mount Pleasant filed a Consolidated Petition
    for Reconsideration (PFR).[^11] With regard to the E Group
    Application, Mount Pleasant argued that the Branch erred in
    concluding that Section 21.902(c)(1) of the Commission's Rules
    required Mount Pleasant Partners Alpha to prepare an interference
    study for Station WGW275, Saginaw, Michigan.[^12] According to the
    PFR, Station WGW275 is located more than fifty miles from the E
    Group Application's proposed site and the signal from its
    transmitting antenna will not reach any portion of Station WGW275's
    protected service area.[^13] The PFR further contended that the E
    Group Application poses no harmful co-channel interference to the
    previously proposed Big Rapids applications regardless of the
    polarity used.[^14] The PFR included an interference study conducted
    by Mr. John Dalager, P.E. using horizontal polarization.[^15] The
    study concludes "that the 45 dB desired-to-undesired signal ratio
    would be met at all test receive sites, except for receive site
    number 5, which is located directly in line with both transmitters.
    Because this receive site is completely terrain blocked, however . .
    . no harmful interference will occur from this site as well."[^16]
    The PFR did not discuss the Branch's stated reasons for dismissing
    the F Group Application.

5.  On January 20, 2000, the Division denied the PFR. The Division found
    that the original applications were correctly dismissed.[^17] The
    Division affirmed the Branch\'s decision that Mount Pleasant failed
    to file interference studies, as required pursuant to Section
    21.902(c), for stations that had been granted prior to the filing of
    the Mount Pleasant applications.[^18] As noted above, Mount Pleasant
    Partners Alpha failed to file a required interference study for
    Station WGW275 and Mount Pleasant Partners Beta failed to file a
    required interference study for Station WMI369. The Division
    therefore also found that Mount Pleasant Partners Alpha and Mount
    Pleasant Partners Beta failed to comply with the service
    requirements of Section 21.902(g) of the Commission's Rules.[^19]
    Because of the Division's finding that the applications lacked
    required interference studies, it found it unnecessary to consider
    the PFR's waiver request.[^20] Mount Pleasant filed the instant AFR
    on February 22, 2000.

# DISCUSSION

6.  The AFR contends that the Division made an erroneous finding as to a
    material question of fact in this case, *i.e.*, whether the proposed
    facilities would cause objectionable interference to existing or
    previously proposed MDS stations.[^21] According to the AFR, Mount
    Pleasant demonstrated that, under Section 21.902(c) of the
    Commission's Rules, the proposed facilities were further than fifty
    miles from the Saginaw MDS station, and would not produce an
    "unobstructed electrical path" to its protected service
    contour.[^22] Therefore, Mount Pleasant argues that it was not
    required to prepare interference studies with regard to the Saginaw
    MDS stations in filing their applications.

7.  In addition, Mount Pleasant notes that, although it provided
    engineering information with the PFR, the Division failed to address
    the data or cite contrary evidence to support the dismissal.[^23]
    Consequently, Mount Pleasant believes that the Division's conclusion
    that the original dismissals were "correct" is arbitrary and
    capricious.[^24] Moreover, Mount Pleasant contends that the
    Division's actions violate the long-standing principle that a
    regulatory agency must provide a clear basis for its decision.[^25]
    Accordingly, Mount Pleasant requests that we vacate the Division's
    actions and grant the applications.

8.  *The E Group Application.* We find that the E Group Application
    filed by Mount Pleasant Partners Alpha was correctly dismissed for
    failure to comply with Section 21.902 of the Commission's Rules. We
    disagree that Mount Pleasant Partners Alpha has demonstrated that
    the proposed facilities were further than fifty miles from the
    Saginaw MDS station, and would not produce an "unobstructed
    electrical path" to its protected service contour.[^26] We find that
    the documentation attached to the PFR fails to warrant such an
    assertion. The engineering studies submitted by Mount Pleasant
    Partners Alpha contain errors and omissions. Specifically, Mount
    Pleasant Partners Alpha only studied eight data points in
    determining whether there would be terrain blockage between its
    proposed station and Station WGW275. In comparison, an independent
    analysis performed by the Commission's staff confirms that the E
    Group Application's proposed facilities have an unobstructed
    electrical path to a small portion of the protected service area of
    Station WGW275.[^27] The staff's analysis determined that there was
    a small area with an unobstructed electrical path at about 20 miles
    from Station WGW275's transmitter site at an azimuth of
    approximately 297 Degrees from True North.[^28] Station WGW275 is
    licensed to operate using a directional antenna pointed at 310
    Degrees from True North, thereby extending its protected service
    area in that direction to approximately 21 miles.[^29] Because the E
    Group Application's proposed facilities have an unobstructed
    electrical path to a small portion of the protected service area of
    Station WGW275, Mount Pleasant Partners Alpha was required to
    prepare and serve a copy of the interference study on the licensee
    of Station WGW275 prior to filing the E Group Application.[^30] Its
    failure to do so correctly resulted in the dismissal of the E Group
    Application.[^31] Consequently, we deny the AFR with respect to the
    E Group Application.

9.  *The F Group Application.* We dismiss the AFR with respect to the F
    Group Application. As noted previously, the Branch dismissed the F
    Group Application on August 31, 1994 for failure to include the
    analysis of the potential for harmful co-channel interference for
    previously-proposed co-channel Station WMI369 in Saginaw, Michigan,
    as required by Section 21.902(c)(1).[^32] However, in its AFR, Mount
    Pleasant Partners Beta did not address its failure to provide an
    analysis of Station WMI369 in its PFR.[^33] As a result, Mount
    Pleasant Partners Beta failed to afford the Branch the opportunity
    to consider the questions of fact or law that were raised for the
    first time in the AFR with respect to Station WMI369.[^34] We
    therefore find that, because of its failure to timely contest the
    Branch's dismissal of the F Group Application due to its potential
    for harmful co-channel interference for previously-proposed
    co-channel Station WMI369, Mount Pleasant Partners Beta has
    effectively conceded the matter. For the reasons discussed above, we
    therefore dismiss the AFR to the extent that it seeks reinstatement
    and grant of the F Group Application.

# ORDERING CLAUSE

10. 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 Consolidated Application for Review filed by Mount
    Pleasant Partners Alpha and Mount Pleasant Partners Beta on February
    22, 2000 IS DENIED IN PART AND DISMISSED IN PART.

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

[^1]: Consolidated Application for Review (filed Feb. 22, 2000) (AFR).

[^2]: Letter from Charles E. Dziedzic, Assistant Chief, Video Services
    Division, Mass Media Bureau, FCC, to George A. West, Mount Pleasant
    Partners Alpha and Beta (Jan. 20, 2000) (Division Letter).

[^3]: FCC File No. 61246-CM-P-91 (filed Aug. 1, 1991) (E Group
    Application). Amendments to the application were filed on March 3,
    1993.

[^4]: FCC File No. 61247-CM-P-91 (filed Aug. 1, 1991) (F Group
    Application). Amendments to the application were filed on March 3,
    1993.

[^5]: Application Return Notification, FCC File No. 61246-CM-P-91 (Aug.
    11, 1993); Application Return Notification, FCC File No.
    61247-CM-P-91 (Aug. 11, 1993). While the applications were returned,
    the return was equivalent to the dismissal of the applications
    because Mount Pleasant did not have an opportunity to resubmit the
    applications. The AFR explains that, "\[a\]ccording to the
    Commission's staff, the sole deficiency of the applications was the
    failure to provide service to some 45 applicants for the E and F
    Channel Groups for facilities in Big Rapids, Michigan, which were
    filed on July 31, 1991 (one day before the applications were filed),
    whose acceptance was never released on public notices and which had
    never been made available to the public. Instead, these applications
    were dismissed by the Commission's staff on March 10, 1993, as
    unacceptable for filing." AFR at 2 (*citing Public Notice*, Rep. No.
    D-686A (rel. Mar. 10, 1993)). We hereinafter refer to those
    forty-five previously proposed MMDS stations in Big Rapids, Michigan
    as the Big Rapids applicants or applications.

[^6]: Letter from James R. Keegan, Chief, Domestic Facilities Division,
    Common Carrier Bureau, FCC, to Ms. Laura C. Mow, Esq., Kelly,
    Hunter, Mow & Povich (Sep. 10, 1993).

[^7]: Letter from Robert James, Chief, Domestic Radio Branch, Domestic
    Facilities Division, Common Carrier Bureau, FCC, to Ms. Laura C.
    Mow, Esq., Kelly, Hunter, Mow & Povich (Aug. 31, 1994) (Dismissal
    Letter Alpha); Letter from Robert James, Chief, Domestic Radio
    Branch, Domestic Facilities Division, Common Carrier Bureau, FCC, to
    Ms. Laura C. Mow, Esq., Kelly, Hunter, Mow & Povich (Aug. 31, 1994)
    (Dismissal Letter Beta).

[^8]: Dismissal Letter Alpha at 2. The Branch therefore also found that
    Mount Pleasant Partners Alpha failed to submit the certification of
    service for Station WMI369 as required by Section 21.902(g) of the
    Commission's Rules. *See id.*

[^9]: Specifically, Mount Pleasant Partners Alpha based its analysis on
    vertical polarization, whereas the Big Rapids applications used
    horizontal polarization. *See id.* at 1. The Branch conducted an
    independent analysis using horizontal polarization and found that
    the proposed MMDS station would cause harmful co-channel
    interference to previously proposed stations in Big Rapids,
    Michigan. *See id.*

[^10]: Dismissal Letter Beta at 1. Consequently, the Branch further
    found that Mount Pleasant Partners Beta failed to comply with the
    interference study service requirements of Section 21.902(g) of the
    Commission's Rules. *See id.* at 2.

[^11]: Consolidated Petition for Reconsideration (filed Oct. 11, 1994)
    (PFR). In 1996, the applicants filed a request for expedited action
    on the PFR.

[^12]: PFR at 8. The PFR also contended that, as no interference
    analysis was required pursuant to Section 21.902(c)(1), Mount
    Pleasant Partners Alpha could not have violated the service
    requirements of Section 21.902(g) of the Commission's Rules. *Id.*
    at 8-9.

[^13]: *See id.* at 8-9. To support its position, the PFR provided the
    Commission with engineering data and an interference analysis. *See
    id.*, Appendix A and Exhibit 1 (1994 Dalager Declaration) (signed
    declaration of Mr. John Dalager, P.E., the professional engineer
    that prepared the submitted engineering data and studies).

[^14]: *See id.* at 6-7.

[^15]: *See id.*, Appendix B.

[^16]: *Id.* at 7. In the event that the Branch rejected the
    interference study, the PFR requested that "the Branch waive Section
    21.902 as it relates to the Big Rapids applications." *Id.* at 7
    n.8. The waiver request is based on the fact that the previously
    proposed Big Rapids applications have since been dismissed. *See
    id.*

[^17]: *See* Division Letter at 1.

[^18]: *See id.*

[^19]: *See id.*

[^20]: *See id.*

[^21]: AFR at 5-6.

[^22]: *Id.* at 6.

[^23]: *Id.* at 6.

[^24]: *Id.* at 7-8.

[^25]: *Id.* at 7.

[^26]: *Id.* at 6. At the time that the application was filed, 47 C.F.R.
    § 21.902(c)(1) required an applicant to prepare an analysis of the
    potential for harmful co-channel interference with any authorized or
    previously proposed station if (i) the proposed transmitting antenna
    had an unobstructed electrical path to any part of the protected
    service area of any other station that utilizes, or would utilize,
    the same frequency; or (ii) if the proposed transmitter is within 50
    miles of the coordinates of any such station. . . ." 47 C.F.R. §
    21.902(c)(1)(i)-(ii).

[^27]: The staff's engineering studies with respect to MDS/ITFS
    point-to-multipoint (broadcast style) facilities are performed using
    a terrain shadow map that is generated from a computer program
    utilizing 3 arc second terrain data. The terrain shadow map shows
    areas that have an unobstructed path or "line of sight" to a subject
    antenna. The protected service areas of an affected party are then
    drawn onto the terrain shadow map. Any region of LOS that is inside
    an affected party's protected service area has the potential to
    receive harmful electrical interference. Calculations are performed
    to determine if the FCC's standard for desired-to-undesired (D/U)
    signal ratio minimums is satisfied. The calculations performed are
    based on the engineering standard of the linear communications
    model. Therefore, 45dB is the co-channel interference standard and
    0dB is the adjacent channel interference standard. *See* 47 C.F.R. §
    21.902. Both referenced standards apply to a 6MHz channel.

[^28]: True North: in the direction to the north pole from a subject
    location on earth along the shortest path while using the latitude,
    longitude coordinate system.

[^29]: We note that Mount Pleasant Partners Alpha failed to take into
    account the correct protected service area of Station WGW275 in
    preparing its engineering analysis. Mr. Dalager incorrectly assumed
    that Station WGW275 used an omnidirectional antenna in calculating
    Station WGW275's protected service area. However, as noted, Station
    WGW275 is licensed to operate using a directional antenna. As a
    result of the miscalculation, Mount Pleasant Partners Alpha failed
    to pick up the small area of interference found in the protected
    service area of Station WGW275.

[^30]: *See* 47 C.F.R. § 21.902(c)(1)(i), (g).

[^31]: *See* Hinton Telephone Company, *et al.*, *Memorandum Opinion and
    Order on Reconsideration*, 10 FCC Rcd 11625, 11638 (1995).

[^32]: Dismissal Letter Beta at 1. As noted above, the Branch also found
    that Mount Pleasant Partners Beta failed to comply with the
    interference study service requirements of Section 21.902(g) of the
    Commission's Rules. *See id.* at 2.

[^33]: *See, e.g.,* AFR at 4 n.3.

[^34]: 47 C.F.R. § 1.115(c); *see* Regionet Wireless License, LLC,
    *Memorandum Opinion and Order*, 17 FCC Rcd 21269, 21273 ¶ 11 (2002).