**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of the Application | * | File No. 50123-CM-P-92       |
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| Champion Industries, Inc.        | * |                              |
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| For Authority to Construct and   |   |                              |
| Operate a New Multipoint         | * |                              |
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| F-Group Channels at Springfield, | * |                              |
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**MEMORANDUM OPINION AND ORDER**

**Adopted:** August 7, 2001 **Released:** August 21, 2001

By the Commission:

1\. The Commission has before it an Application for Review filed by
Champion Industries, Inc. (Champion), seeking review of a Video Services
Division order on reconsideration, adopted on September 3, 1999, and
released on September 7, 1999 (*Division Order*). The *Division Order*
denied a petition for reconsideration of the dismissal, pursuant to
delegated authority, of an application to construct and operate a
Multichannel Multipoint Distribution Service (MMDS) station on the F
group channels at Springfield, Missouri.

2.  Champion filed the above-referenced application for a new MMDS
    station at Springfield on October 7, 1991, and the Commission staff
    determined that the application was unacceptable for filing.[^1] The
    application was dismissed by letter dated March 27, 1995, which
    stated, *inter alia*, that the applicant failed to include
    interference analyses for all previously proposed or authorized MMDS
    stations, as required by Section 21.902(c) of the Commission's
    rules, 47 C.F.R. § 21.902(c); failed to comply with the technical
    requirements of Section 21.902(b), 47 C.F.R. §21.902(b); and failed
    to serve all affected parties pursuant to Section 21.902(g), 47
    C.F.R. §21.902(g).

3.  On reconsideration, the Video Services Division affirmed the
    dismissal of Champion's application for failure to comply with
    Section 21.902 of the Commission's rules, 47 C.F.R. §21.902 (1991).
    The Division stated that interference analyses are necessary at the
    time of application filing due to the extensive planning and
    engineering involved in the MDS licensing process. *Division Order*
    at 2. The Division found that Champion failed to file twenty-five of
    the interference analyses required by the rules. In addition, the
    Division's independent engineering study revealed that Champion
    failed to design its proposed station to provide at least 0 dB of
    adjacent channel interference protection for these twenty-five
    previously proposed adjacent channel stations. *Division Order*
    at 3. Citing *McDougald Broadcasting Corporation*, 12 FCC Rcd 10034,
    10035-10036 (1997), the Division stated that the fact that Champion
    first filed an application in 1983 for which interference studies
    were waived pursuant to the *MMDS Allocation Order*, 94 FCC 2d 1203,
    1265 (1983), was not relevant because Champion submitted its 1983
    application for cancellation on September 26, 1991, and thus
    forfeited the 1983 waiver. *Division Order* at 4. Finally, the
    Division stated that service upon affected parties, as defined by
    the Commission's rules, is provided for in the rules so that parties
    in interest may have actual notice of a proposed station and
    sufficient time to respond if desired. *Division Order* at 5.

4\. Champion observes that it was the original 1983 conditional licensee
of the Springfield, Missouri F Group channels. Champion maintains that
when it met with Commission staff to discuss the prospect of extending
Champion's construction deadline, Champion was advised to forego making
such a request, but instead to tender its authorization for cancellation
and to file a new application. Champion argues that earlier Commission
public notices and then-extant policies led Champion to believe that
resubmitting its original application as a new application was an
acceptable procedure to follow, and states that other applications for
original MMDS allocations that did not create unlawful interference have
been accepted for filing and granted. Champion notes that in
resubmitting its 1983 application in 1991, Champion pledged to protect
any applicant that might be chosen in the future. Champion contends that
it is being held to a higher standard than other applicants, and argues
that the *Division Order* should be reversed, Champion's application
reinstated, and processed to grant.

5\. As we have 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." *Hinton Telephone Company*, 10 FCC Rcd 11625,
11638 (1995)(citation omitted), *aff'd sub nom. Knollwood, Ltd. v. FCC*,
84 F.3d 1452 (D.C. Cir. 1996). Although at the time Champion filed its
original application in 1983 Champion was entitled to a waiver of the
interference analysis requirement pursuant to the *MMDS Allocation
Order, supra*, Champion forfeited its waiver privilege once Champion
submitted its application for cancellation. *McDougald Broadcasting
Corporation, supra,* is precisely on point. In *McDougald*, as here, 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, for the exact facilities as the
canceled station, without providing required interference analyses. This
subsequent application was returned as unacceptable for filing for
failure to provide the interference studies required at the time of
filing in 1991. Filing appropriate interference analyses that
demonstrate lack of harmful interference is a basic requirement in
determining the acceptability of an application. *McDougald Broadcasting
Corporation*, 12 FCC Rcd at 10036. Champion was required to comply with
all the requirements at the time its application was filed in 1991,
including the submission of appropriate interference studies. *Id.* at
10037. Pledges of future conduct are not sufficient substitutes for
required studies. In addition to failing to file the appropriate
interference studies, Champion failed to serve copies of the required
studies on any of the required applicants, conditional licensees, and
licensees for stations stipulated to be studied by the rules. Champion
fails to address this issue in its application for review. This failure
to provide service deprived affected parties of notice and opportunity
to be heard, and is itself grounds for Champion's application's
dismissal as unacceptable for filing. *Edna Cornaggia*, 8 FCC Rcd 5442
(1993).

6\. In view of the foregoing, we find that grant of Champion's
application for review is not in the public interest. We affirm the
staff's return of Champion's application under consideration in this
order. Reinstatement of the application is not warranted.

7\. Accordingly, IT IS ORDERED, That the application for review filed
October 7, 1999 by Champion Industries, Inc. IS DENIED.

8\. IT IS FURTHER ORDERED, That the staff of the Mass Media Bureau shall
send a copy of this decision to the authorized representative for the
applicant by certified mail, return receipt requested.

> FEDERAL COMMUNICATIONS COMMISSION
>
> Magalie Roman Salas
>
> Secretary

[^1]: Section 21.20(a) of the rules, 47 C.F.R. §21.20(a), sets forth the
    standards for acceptability of MDS applications 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 or discrepancies if:

    The application is defective with respect to completeness of answers
    to questions, informational showings, execution, or other matters of
    a formal character; or

    The application does not substantially comply with the Commission's
    rules, regulations, specific requests for additional information, or
    other requirements.