**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+----+------------------------------+
| In the Matter of Application of  | *  | File No. 1192-CM-P-83        |
|                                  | *) |                              |
| BAYPOINT TV, INC.                | ** |                              |
|                                  |    |                              |
| To Construct a New Multipoint    | *  |                              |
| Distribution Service Station on  | *) |                              |
| the F Group Channels in          | ** |                              |
| Amarillo, Texas                  |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
|                                  |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
|                                  |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
|                                  |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
|                                  |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
|                                  |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
+----------------------------------+----+------------------------------+

**ORDER ON FURTHER RECONSIDERATION**

**Adopted: August 11, 2004 Released: August 12, 2004**

By the Deputy Chief, Broadband Division, Wireless Telecommunications
Bureau:

1.  *Introduction.* In this *Order on Further Reconsideration*, we
    consider a petition for reconsideration filed on September 10, 2001
    by Baypoint TV, Inc. (Baypoint).[^1] Baypoint seeks reconsideration
    of an August 10, 2001 letter denying its June 10, 1993 petition for
    reconsideration of the dismissal of its captioned application for a
    new Multichannel Multipoint Distribution Service (MMDS) station on
    the F Group channels at Amarillo, Texas.[^2] For the reasons stated
    below, we grant the Further Petition.

2.  Baypoint filed the captioned application on September 9, 1983. Its
    application was selected as the winning bid under the then-extant
    lottery procedures in December of 1988.[^3] Following preliminary
    review of the application, on January 5, 1989, staff of the former
    Common Carrier Bureau sent a letter to Baypoint advising it of
    certain deficiencies in its application. Specifically, Baypoint was
    requested to provide, *inter alia*, (1) a lease, lease option
    agreement, or other concrete evidence of the availability of its
    transmitter site, and (2) an interference analysis.[^4] On January
    19, 1989, Baypoint requested a sixty-day extension of time to
    respond. On March 15, 1989, Baypoint submitted an interference study
    demonstrating that it would not cause any interference to ITFS
    stations.[^5] At the same time, Baypoint indicated that it was
    obtaining a new site option, that it was working on collocation with
    adjacent channel licensees, that it was having its engineering
    consultant prepare an engineering statement addressing other
    technical concerns raised by the deficiency letter, and that a
    further amendment reporting the outcome of these activities would be
    filed in due course.[^6] Baypoint acknowledges that it "did not in
    so many words request a further extension of time in which to
    respond to the deficiency letter" but argues that the plain import
    of its March 15 filing was that it was actively engaged in producing
    the material necessary to respond and that it would need more time
    to finalize the results and submit them to the Commission.[^7]

3.  On May 19, 1989, the former Common Carrier Bureau (CCB) dismissed
    Baypoint's application because Baypoint had not submitted concrete
    evidence of site availability or an interference study. On June 14,
    1989, Baypoint filed a petition for reconsideration of the Dismissal
    Letter.[^8] At the same time, Baypoint amended its application to
    provide an option on Baypoint's transmitter site, an interference
    study, and a response to the other questions raised in the January
    5, 1989 letter.[^9]

4.  On May 11, 1993, CCB's Domestic Facilities Division released an
    order denying the petition for reconsideration on the sole stated
    ground that Baypoint had not submitted concrete evidence of site
    availability as of the date of the Division's dismissal action.[^10]
    The *CCB Order* stated that, after requesting and receiving an
    extension of time, Baypoint had failed to provide all of the
    information necessary to complete processing of its
    application.[^11] The *CCB Order* stated that Baypoint had not
    submitted a lease, lease option agreement, or other "concrete
    evidence" to demonstrate the availability of its proposed
    transmitter site, as required by Commission rules.[^12] It did not
    assert that Baypoint had failed to file an interference study.
    Concerning the other unresolved issues, however, the CCB explained
    that Baypoint had a duty to submit curative amendments to its
    application within thirty days of the Division's written request or
    to obtain an extension of time, but that it had failed to do
    so.[^13]

5.  On June 10, 1993, Baypoint filed a petition for reconsideration of
    the *CCB Order*.[^14] Baypoint said it had filed an interference
    study before the March 20, 1989, extended deadline, and that it had
    answered the Bureau's remaining information requirements in an
    amendment filed on June 14, 1989, and a contingent amendment filed
    November 15, 1991.[^15] The Mass Media Bureau denied the petition on
    August 10, 2001.[^16] On September 10, 2001, Baypoint filed the
    instant Further Petition.

6.  *Discussion.* Baypoint argues that the immediate dismissal of its
    application was inconsistent with the treatment of other
    applications. Specifically, Baypoint states that the former Domestic
    Facilities Division had adopted a policy of not requiring applicants
    to submit written site leases or options prior to grant but instead
    routinely granted applications conditioned upon the submission of
    such evidence within 90 days after grant.[^17]

7.  Due to the unique circumstances presented in this case, we will
    grant Baypoint's Petition. The former Common Carrier Bureau required
    Baypoint to submit a copy of its site lease during the processing of
    its application. In other cases, however, the former Common Carrier
    Bureau granted conditional licenses that required the conditional
    licensee to provide the site lease by a specified date after
    grant.[^18] Recently, the Commission ordered the reinstatement of an
    application that was dismissed for failure to provide a site
    lease.[^19] The Commission noted that the former Common Carrier
    Bureau had granted applications wherein the applicant failed to
    submit a copy of a site lease and required the conditional licensee
    to provide the site lease by a specified date.[^20] While the
    Commission has the right to develop strict application processing
    criteria, "fundamental fairness also requires that an exacting
    application standard, enforced by the severe sanction of dismissal
    without consideration on the merits, be accompanied by full and
    explicit notice of all prerequisites for such consideration."[^21]
    In this case, given that many applications that did not provide site
    leases were conditionally granted, we conclude that such notice was
    not present. We also note that the former Mass Media Bureau has
    determined that not all site availability defects are grounds for
    return of an application.[^22] The Commission reached the same
    conclusion,[^23] and the former Common Carrier Bureau often applied
    the same policy.[^24] In denying Baypoint's petition, the former
    Domestic Facilities Division followed a different procedure. Even
    though the *CCB Order* indicated that Baypoint's only remaining
    deficiency at that time was a missing site lease, it did not grant
    the license conditional upon submission of evidence of site
    availability within thirty days thereafter. Instead, it took the
    position that the applicant was required to submit curative
    amendments within thirty days of a written request, before the
    application was granted. In support of that proposition, the
    Domestic Facilities Division cited the *VisionAire* case.[^25] In
    *VisionAire*, however, the applicant had not only failed to submit
    evidence of site availability but also failed to perform a
    non-interference analysis.[^26] Thus, *VisionAire* does not provide
    a precedent for dismissing an application where the only missing
    piece of information is evidence of site availability. If the former
    Domestic Facilities Division had followed the procedures normally
    followed by the CCB at that time, and later by the former Mass Media
    Bureau, it would have granted Baypoint's application conditional
    upon submission of evidence of site availability.

8.  Under these circumstances, we agree that the failure to submit the
    site lease with the original application alone was insufficient
    ground for dismissing the subject application.[^27] For that reason,
    we grant the Further Petition and reinstate Baypoint's application.
    Since Baypoint has provided a site lease, we do not need to delay
    processing its application or condition the grant of its application
    upon the filing of a site lease. We decline to consider Baypoint's
    other arguments because it is unnecessary to reach those issues.

9.  Accordingly, IT IS ORDERED that 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,
    the Petition for Reconsideration filed by Baypoint TV, Inc., on
    September 10, 2001 IS GRANTED.

10. IT IS FURTHER ORDERED, pursuant to Sections 4(i) and 5(c) of the
    Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i), 155(c),
    that the licensing staff of the Broadband Division SHALL PROCESS the
    application of Baypoint TV, Inc. for Multipoint Distribution Service
    station at Amarillo, Texas (File No. 1192-CM-P-83) consistent with
    this *Order on Further Reconsideration*.

> FEDERAL COMMUNICATIONS COMMISSION
>
> John J. Schauble
>
> Deputy Chief, Broadband Division
>
> Wireless Telecommunications Bureau

[^1]: Petition for Reconsideration, File No. 1192-CM-P-83, filed Sep.
    10, 2001 (Further Petition).

[^2]: Letter from Charles E. Dziedzic, Assistant Chief, Video Services
    Division, Mass Media Bureau to Baypoint TV, Inc. (Aug. 10, 2001)
    (*Mass Media Letter*).

[^3]: Further Petition at 3.

[^4]: Letter from Domestic Radio Branch, Domestic Facilities Division to
    Baypoint TV, Inc. (dated Jan. 5, 1989) (Return Letter).

[^5]: Amendment (filed Mar. 14, 1989).

[^6]: *Id.*

[^7]: Further Petition at 3.

[^8]: Petition for Reconsideration (filed Jun. 14, 1989).

[^9]: Amendment (filed Jun. 14, 1989).

[^10]: Baypoint TV, Inc., *Order on Reconsideration*, 8 FCC Rcd 3141 ¶ 4
    (CCB DFD 1993) ("*CCB Order*").

[^11]: *Id.* at 3141 ¶ 2.

[^12]: *Id.* at ¶ 4.

[^13]: *Id.* at ¶ 5*, citing* VisionAire, Inc., *Order on
    Reconsideration*, 5 FCC Rcd 1952 (CCB 1990) (*VisionAire*).

[^14]: Further Petition.

[^15]: *Id.* at 3.

[^16]: *Mass Media Letter*.

[^17]: Further Petition at 10-11.

[^18]: *See, e.g.,* authorizations for MDS stations WLW738, Aug. 16,
    1993; WMI348, Aug. 31, 1992; WMI344, Aug. 31, 1992; WMI325, May 7,
    1992; WMI872, Mar. 17, 1992; WMI884, Mar. 12, 1992; WMI362, Apr. 23,
    1992; WMI331, Apr. 9, 1992; WMI824, Mar. 29, 1992; WMI284, Feb. 20,
    1992.

[^19]: Mester's TV, *Memorandum Opinion and Order*, 18 FCC Rcd 13453
    (2003), *recon. pending*.

[^20]: *Id.*

[^21]: *See Salzer v. FCC*, 778 F.2d 869, 871-872 (D.C. Cir. 1985).

[^22]: RuralVision South, Inc., *Order on Reconsideration*, 12 FCC Rcd
    21721, 21723 n.5 (MMB VSD 1997); RuralVision Central, Inc., *Order
    on Reconsideration*, 11 FCC Rcd 7000, 7004 ¶ 13 (MMB VSD 1996);
    Allen Wheeler, *Order on Reconsideration*, 11 FCC Rcd 6955 n.3 (MMB
    VSD 1996).

[^23]: Mester's TV, *supra*.

[^24]: Further Petition at 4.

[^25]: *See* n. Error: Reference source not found and accompanying text,
    above.

[^26]: *VisonAire* at ¶ 7.

[^27]: *See Salzer v. FCC*, 778 F.2d 869, 871-872 (D.C. Cir. 1985).