**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of Application of  | *  | File No. BPLIF-951016AW      |
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| HISPANIC INFORMATION AND         | ** |                              |
| TELECOMMUNICATIONS NETWORK, INC. |    |                              |
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| For Authority to Construct and   | *) |                              |
| Operate Station in the           | ** |                              |
| Instructional Television Fixed   |    |                              |
| Service on the D-Group Channels  | *  |                              |
| at Springfield, Massachusetts    | *) |                              |
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**MEMORANDUM OPINION AND ORDER**

**Adopted: July 15, 2003 Released: July 22, 2003**

By the Commission:

# introduction

1.  We have before us an application for review filed by Hispanic
    Information and Telecommunications Network, Inc. (HITN) on November
    14, 1997.[^1] HITN seeks review of the August 28, 1997 action by the
    Video Services Division (Division) of the former Mass Media Bureau
    dismissing the above-captioned application. For the reasons stated
    herein, we deny the application for review.

# BACKGROUND

2.  On May 11, 1994, HITN filed its application for a construction
    permit and license for a new Instructional Television Fixed Service
    (ITFS) station on the D Group channels at Springfield,
    Massachusetts.[^2] On October 20, 1995, HITN filed a permissible
    major amendment to the application to, *inter alia*, specify a new
    transmitter site.[^3] In that amendment, HITN provided a co-channel
    interference study. That study showed that Station WLX831, New
    Britain, Connecticut, operating on Channels D3 and D4 and licensed
    to the National Conference on Citizenship (NCC) was 27.1 miles from
    HITN's proposed transmitter site.[^4] The amendment, however, did
    not address the issue of potential interference to Station WLX831.
    Instead, HITN indicated, "No objection letter to be obtained."[^5]

3.  On August 28, 1997, the Division's Distribution Services Branch
    (Branch) dismissed HITN's application because the proposed facility
    would cause harmful interference to the protected service area of
    Station WLX831.[^6] On September 29, 1997, HITN filed a petition
    seeking reconsideration of the dismissal of its application.[^7] In
    that petition, HITN argued that the Commission should accept the "no
    objection" letter that it had obtained from NCC as a curative
    amendment to the application.[^8] On October 9, 1997, the Division
    denied HITN's petition.[^9] The Division noted that although HITN
    believed that its attached consent letter from NCC resolved any
    question of interference to Station WLX831, "\[t\]he only attachment
    to HITN's reconsideration petition . . . is a copy of the staff's
    letter dismissing the subject application."[^10] The Division also
    stated that it was under no obligation to accept a curative
    amendment after an application had been dismissed.[^11] HITN then
    submitted the instant application for review.

# Discussion

4.  In its application for review, HITN claims that the dismissal of its
    application was arbitrary and capricious in violation of the
    Administrative Procedure Act.[^12] In support of this proposition,
    HITN argues that although the application processing changes adopted
    in MM Docket No 93-24[^13] were clearly substantive "there was no
    notice and comment period."[^14] HITN also claims that applications
    filed prior to the *1995 Report and Order* are treated with greater
    leniency than those filed after and thus, similarly situated
    applicants are being held to different standards.[^15] In addition,
    HITN contends that the Commission must allow the late filing of the
    consent letter because there would be no comparative upgrade[^16] to
    the HITN application, and it is not a technical or engineering
    document specifically barred by the *1995 Report and Order.*[^17]
    Next, HITN states that the Commission's use of the "letter perfect"
    standard is improper,[^18] and because the Commission has been
    lenient in the financial requirements for ITFS applicants,
    "\[t\]here is no reason not to extend such treatment to another area
    which will otherwise permit the processing of the subject
    application to grant."[^19] Finally, HITN states that the Commission
    has violated the Paperwork Reduction Act of 1995 by requiring
    applicants for ITFS licenses "to gather more information to include
    in its \[sic\] application than previously required . . . without
    OMB approval."[^20]

5.  As an initial matter, we point out that the requirement to submit
    consent letters with the original application predates the *1995
    Report and Order*. The rules in effect at the time HITN filed its
    application required it to submit the consent letter from NCC with
    the original application. Specifically, Section 74.903(b) of the
    Commission's Rules required HITN to submit as part of its
    application "\[a\]n analysis of the potential for harmful cochannel
    interference with any authorized or previously proposed station if .
    . . the proposed transmitting antenna has an unobstructed electrical
    path to receive site(s) of any other station(s) that utilize(s), or
    would utilize, the same frequency, or \[t\]he proposed transmitter
    is within 80.5 km (50 miles) of the coordinates of any such
    station."[^21] HITN was required to submit an interference analysis
    for Station WLX831 because it was a co-channel station located 29.1
    miles from HITN's proposed transmitter site. As an alternative to
    providing an interference analysis, HITN could have submitted a
    statement from NCC stating that any resulting interference was
    acceptable.[^22] HITN's application stated that it would provide a
    consent letter from NCC, but it did not provide that letter.
    Therefore, HITN's application was clearly incomplete when filed.

6.  Further, based on the record before us, it appears that HITN has
    never filed the NCC consent letter with the Commission. Although it
    claimed to have included this letter in its petition for
    reconsideration, HITN did not attach any consent letter to the
    petition or any other submission. In this connection, we agree with
    the Division that

    HITN's implicit request that we reinstate its application and defer
    processing until such time as HITN is able to obtain a consent
    letter from NCC is not only inconsistent with the Commission's
    filing requirements and processing procedures, but would also unduly
    disrupt the staff's processing of other pending applications which
    fully comply with the Commission's requirements.[^23]

    We nonetheless note that, even if HITN had produced the NCC consent
    letter with its petition for reconsideration, for the reasons
    discussed below, we would not grant the instant application for
    review.

7.  In particular, HITN's statement that the Division's dismissal of the
    application was arbitrary and capricious because "there was no
    notice and comment period" for the ITFS window filing procedures is
    incorrect. As noted above, the requirement to submit consent letters
    in lieu of interference studies predates the establishment of the
    new filing procedures for ITFS. In any event, a *Notice of Proposed
    Rulemaking* was released on February 25, 1993 that sought comment on
    the window filing procedures adopted in the *1995 Report and
    Order*.[^24] As a result, HITN's argument that the Division's action
    here was arbitrary and capricious, to the extent that it was in
    accordance with or reliance on the *1995 Report and Order,* because
    there was no notice and comment is unfounded.

8.  HITN is also incorrect in its assertion that the Commission is
    treating similarly situated applicants differently.[^25] In support
    of this argument, HITN cites generally to *Fishburne Military
    School* [^26] for the proposition that it is unfair to dismiss
    HITN's application for failing to provide the NCC consent letter
    when the Commission did not dismiss the applications in *Fishburne*
    despite the applicants' failure to designate any programming as
    formal educational on FCC Form 330's illustrative schedules.[^27] We
    find that *Fishburne* is readily distinguishable from this case.
    *Fishburne* deals with the issue of how to treat internal
    inconsistencies in an application for purposes of determining
    whether the applicant was entitled to points under the old
    comparative selection system. In that case, applicants for ITFS
    licenses proposed an average of twenty-one hours of formal
    educational programming -- which would have entitled the applicant
    to merit points - in the programming grids part of the applications,
    but failed to similarly designate such programming in the
    illustrative schedules part of the applications.[^28] Although the
    applicants filed amendments so that the illustrative schedules
    matched the programming grids, the Commission found that the
    amendments were not entitled to comparative consideration because
    they were filed after the "B" cut-off date.[^29] The instant case is
    different from *Fishburne* because all the information required by
    the Commission's Rules was contained within the *Fishburne*
    applications prior to action being taken thereon, and because the
    inconsistency did not affect the acceptability of the application
    for filing.[^30] To the contrary, HITN's application failed to
    include an important part of the interference showing required by
    our Rules.

9.  Indeed, Commission precedent makes it clear that HITN's failure to
    file the NCC consent letter is a fatal defect warranting dismissal
    of its application. In this connection, we note that the Commission
    has required both before and after the *1995 Report and Order* that
    proper interference showings and consent letters from affected
    parties be submitted with the original application.[^31]
    Applications for new ITFS stations may be submitted only during a
    specific period or "window" announced by public notice.[^32]
    Pursuant to Section 74.903 of the Commission's Rules,[^33] an
    application for an ITFS station must protect previously proposed
    facilities from interference and will not be granted if interference
    is predicted to occur.[^34] Given that applications must be filed
    only during designated filing windows, it is vital that all
    necessary consent letters be submitted with the original
    application.[^35] Considering consent letters that did not exist at
    the time the original application was filed encourages the filing of
    incomplete applications and places an undue burden on the
    Commission's limited resources.[^36]

10. We also reject HITN's argument that under the procedures adopted in
    the *1995 Report and Order*, it should have been allowed to amend
    its application to submit the consent letter from NCC.[^37] Since
    HITN has never amended its application to provide the consent
    letter, this argument is moot. Moreover, Section 74.903(b) lists the
    showings relating to interference that all applicants "must include
    . . . with the application."[^38] The *1995 Report and Order*
    discusses amendments of pending applications. HITN fails to cite any
    authority that would allow it to submit a consent letter after its
    application was dismissed. Moreover, we are not aware of any such
    authority or precedent.

11. Finally, although HITN claims that the Commission has violated the
    Paperwork Reduction Act of 1995 by requiring additional information
    of ITFS applicants without first obtaining the required approval of
    OMD, it has not specified what additional information the Commission
    has requested.[^39] As a result, we find this argument to be without
    merit.

# conclusion AND ORDERING CLAUSEs

12. Because it failed to provide the NCC consent letter, HITN has not
    made the required interference showing as required by the
    Commission's Rules. Consequently, we affirm the Division's decision
    and deny HITN's Application for Review.

13. 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 Sections 1.115 and 74.903 of the Commission's Rules, 47
    C.F.R. §§ 1.115, 74.903, the Application for Review filed by
    Hispanic Information and Telecommunications Network, Inc. on
    November 14, 1997, IS DENIED.

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

[^1]: Hispanic Information and Telecommunications Network, Inc.
    Application for Review, filed Nov. 14, 1997 (Application for
    Review).

[^2]: FCC File No. BPLIF-951016AW. The D Group channels consist of the
    frequencies 2554-2560 MHz, 2566-2572 MHz, 2578-2584 MHz, and
    2590-2596 MHz. *See* 47 C.F.R. § 74.902(a).

[^3]: Amendment (filed Oct. 20, 1995).

[^4]: Amendment, Figure 6.

[^5]: *Id*.

[^6]: *See* Letter from Clay C. Pendarvis, Acting Chief, Distribution
    Services Branch, Video Services Division, Mass Media Bureau to
    Hispanic Information and Telecommunications Network, Inc. (dated
    Aug. 28, 1997). The Branch also concluded that while HITN was
    attempting to rely on frequency offset, HITN could not rely on
    frequency offset in lieu of a signed agreement between the parties.
    *Id*.

[^7]: Hispanic Information and Telecommunications Network, Inc. Petition
    for Reconsideration (filed Sep. 29, 1997) (Petition for
    Reconsideration).

[^8]: Petition for Reconsideration at 9.

[^9]: *See* Letter from Clay C. Pendarvis, Acting Chief, Distribution
    Services Branch, Video Services Division, Mass Media Bureau to
    Benjamin Perez, Esq. (dated Oct. 9, 1997) (*Letter*).

[^10]: *Id*. at 2.

[^11]: *Id*.

[^12]: Application for Review at 3, 13.

[^13]: *See* Amendment of Part 74 of the Commission's Rules with Regard
    to the Instructional Television Fixed Service, MM Docket No. 93-24,
    *Report and Order*, 10 FCC Rcd 2907 (1995) (*1995 Report and
    Order*).

[^14]: Application for Review at 13.

[^15]: *Id*. at 13-14.

[^16]: At the time HITN filed its original application and major
    amendment, in cases of mutually exclusive applications - where
    applicants were competing for the same or adjacent channels in the
    same geographic area, each application was reviewed pursuant to the
    Commission\'s comparative process. This procedure awarded a maximum
    of twelve merit points based on five criteria deemed to have been
    most relevant to predicting the applicant best qualified to provide
    the service for which the ITFS spectrum had been allocated. *See*
    Amendment of Part 74 of the Commission\'s Rules and Regulations in
    Regard to the Instructional Television Fixed Service, *Second Report
    and Order*, 101 FCC 2d 49, 65-72 (1985) (*Second Report and Order*);
    47 C.F.R. § 74.913 (1993). Once an application was filed and found
    to be acceptable for filing, the application was placed on an \"A\"
    cut-off list, which established a deadline for filing mutually
    exclusive applications. If one or more mutually exclusive
    applications were filed and found acceptable for filing, those
    applications would be placed on a \"B\" cut-off list. That public
    notice would, *inter alia*, establish the deadline by which all of
    the applicants could file amendments to their applications by which
    they could improve their comparative position under the point
    system. *See* *Second Report and Order*, 101 FCC 2d at 73-75. The
    interference consent letter at issue in this case, however, would
    not have impacted HITN\'s comparative standing under the point
    system.

[^17]: *Id*. at 14-16.

[^18]: *Id*. at 15.

[^19]: *Id*. at 16.

[^20]: *Id*.

[^21]: 47 C.F.R. § 74.903(b)(1) (1994).

[^22]: 47 C.F.R. § 74.903(b)(4) (1994).

[^23]: *Letter* at 2.

[^24]: Amendment of Part 74 of the Commission's Rules with Regard to the
    Instructional Television Fixed Service, MM Docket No. 93-24, *Notice
    of Proposed Rulemaking*, 8 FCC Rcd 1275 (1993); *see also 1995
    Report and Order*, 10 FCC Rcd at 2907-08 ¶¶ 2-4.

[^25]: Application for Review at 13-14.

[^26]: Fishburne Military School, *Memorandum Opinion and Order*, 11 FCC
    Rcd 18589 (1996) (*Fishburne*).

[^27]: Application for Review at 14.

[^28]: *Fishburne*, 11 FCC Rcd at 18591 ¶ 5.

[^29]: *Id*. at 18592 ¶ 7.

[^30]: We also note that the applicants in *Fishburne* were penalized in
    that they were not awarded the merit points for comparative
    consideration that they would have earned had they filled out their
    applications correctly prior to the "B" cut-off deadline. *Id*.

[^31]: *See, e.g.,* Guadalupe Valley Electric Cooperative, *Order on
    Reconsideration*, 11 FCC Rcd 7434, 7442-43 (1996); In the Matter of
    4,330 Applications for Authority to Construct and Operate Multipoint
    Distribution Service Stations at 62 Transmitter Sites, *Memorandum
    Opinion and Order on Reconsideration*, 10 FCC Rcd 1335, 1465-66
    (1994); Family Entertainment Network, Inc., *Order on
    Reconsideration*, 9 FCC Rcd 566, 567-68 n.10 (1994).

[^32]: *See 1995 Report and Order*.

[^33]: 47 C.F.R. § 74.903.

[^34]: *Id*.

[^35]: *See* Albion Community Development Corporation, *Order on Further
    Reconsideration*, 18 FCC Rcd 7714, 7716 ¶ 7 (WTB PSPWD 2003).

[^36]: *Id*.

[^37]: *See* Application for Review at 14-15.

[^38]: 47 C.F.R. § 74.903(b).

[^39]: Application for Review at 16-17.