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 Federal  Communications  Commission  FCC  03-  93 
 Before  the  Federal  Communications  Commission 
 Washington,  D.  C.  20554 


 In  the  Matter  of  Applications  of 
 LINE  OF  SITE,  INC. 
 For  Authorization  to  Operate  Commercial  Instructional  Television  Fixed  Service  Stations 
 on  the  A-  and  C-  Group  Channels  at  Globe,  Arizona 


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 File  Nos.  BPMDC-  9200221  BPMDC-  9200414 


 MEMORANDUM  OPINION  AND  ORDER 
 Adopted:  April  16,  2003  Released:  April  23,  2003 
 By  the  Commission: 
 1.  In  this  Memorandum  Opinion  and  Order,  we  deny  the  Application  for  Review  1  filed  by  Line  of  Site,  Inc.  (Line  of  Site)  on  July  17,  2000.  Line  of  Site  seeks  reinstatement  nunc  pro  tunc  and 
 grant  of  its  applications  for  authorization  to  operate  commercial  Instructional  Television  Fixed  Service  (ITFS)  stations  on  the  A-  and  C-  group  channels  at  Globe,  Arizona. 


 2.  Background.  In  1991,  the  Commission  permitted  wireless  cable  entities  to  use  available  ITFS  channels  for  commercial  operations.  2  The  Commission  provided  that  only  wireless  cable  entities 
 offering  a  reasonable  expectation  of  prompt  wireless  cable  service  would  be  able  to  apply  for  licenses  for  ITFS  frequencies.  In  sum,  the  Commission  required  that  a  wireless  cable  applicant  must  hold  a 
 conditional  license,  a  license,  or  a  lease,  or  must  have  filed  an  unopposed  application  for  at  least  four  Multipoint  Distribution  Service  (MDS)  channels  to  use  in  conjunction  with  the  facilities  proposed  on  the 
 ITFS  frequencies.  3  The  applicant  must  also  show  that  there  are  no  unused  MDS  channels  available  for  application,  purchase,  or  lease  that  could  be  used  in  lieu  of  the  ITFS  frequencies  for  which  the  applicant 
 applied.  4  A  wireless  cable  entity  may  apply  for  ITFS  frequencies  at  the  same  time  it  applies  for  the  related  MDS  frequencies,  but  if  that  MDS  application  is  opposed  by  a  timely  filed  mutually  exclusive 
 application  or  petition  to  deny,  the  application  for  ITFS  facilities  will  be  returned.  5  A  wireless  cable  entity  may  be  licensed  on  ITFS  channels  in  areas  where  at  least  eight  other  ITFS  channels  remain 


 1  Line  of  Site,  Inc.,  Application  for  Review  (filed  July  17,  2000)  (Line  of  Site  AFR). 
 2  See  Amendment  of  Parts  21,  43,  74,  78,  and  94  of  the  Commission's  Rules  Governing  Use  of  the  Frequencies  in 
 the  2.1  and  2.  5  GHz  Bands  Affecting:  Private  Operational-  Fixed  Microwave  Service,  Multipoint  Distribution  Service,  Multichannel  Multipoint  Distribution  Service,  Instructional  Television  Fixed  Service,  and  Cable  Television 


 Relay  Service,  Second  Report  and  Order,  6  FCC  Rcd  6792,  6801-  06  (1991)  (Second  Report  and  Order);  see  also  47  C.  F.  R.    74.  990. 
 3  See  47  C.  F.  R.    74.  990(  c)  (1992). 
 4  See  47  C.  F.  R.    74.  990(  d)  (1992). 
 5  Id.  That  entity  can  reapply  for  its  ITFS  facilities,  if  still  available,  upon  grant  of  its  MDS  application;  see  Second 
 Report  and  Order,  6  FCC  Rcd  at  6804  (1991). 
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 available  in  the  community  for  future  ITFS  use.  6  Finally,  a  wireless  cable  entity  is  subject  to  the  MDS  interference  protection  requirements  in  Section  21.  902  of  the  Commissions  Rules.  7  Consequently,  a 
 wireless  cable  entity  must  file  an  interference  study  with  its  application.  8  These  rules  became  effective  on  January  2,  1992.  9 


 3.  On  January  2,  1992,  Line  of  Site  filed  two  applications  to  operate  ITFS  stations  on  the  A  Group  and  C  Group  Channels  in  Globe,  Arizona.  10  On  April  21,  1999,  the  Video  Services  Division  of  the 
 former  Mass  Media  Bureau  (Bureau)  dismissed  the  applications  for  failure  to  comply  with  Sections  74.990(  a),  (d)  and  (f)  of  the  Commissions  Rules.  First,  the  Video  Services  Division  found  that  Line  of 
 Site  failed  to  show  that  at  least  eight  other  ITFS  channels  would  remain  available  in  the  community  for  future  ITFS  use.  Additionally,  the  Division  determined  that  Line  of  Site  did  not  show  that  there  were  no 
 MDS  or  multichannel  MDS  (MMDS)  channels  available  for  application,  purchase  or  lease  that  could  be  used  in  lieu  of  the  applied  for  ITFS  channels.  Finally,  it  found  that  Line  of  Sites  proposed  facilities 
 would  cause  harmful  interference  to  previously  authorized  stations.  11 
 4.  On  May  21,  1999,  Line  of  Site  requested  reconsideration  of  the  dismissal  of  its  applications.  12  On  June  15,  2000,  the  Video  Services  Division  denied  Line  of  Sites  reconsideration 


 petition  and  affirmed  the  dismissal  of  the  applications.  13  On  July  17,  2000,  Line  of  Site  requested  review  of  the  denial  of  its  reconsideration  petition.  14  Line  of  Site  asserts  that  it  did  not  violate  the  interference 
 protection  requirements.  Line  of  Site  asserts  that  its  applications  were  consistent  with  Part  74  even  though  they  did  not  include  a  frequency  analysis  with  respect  to  Stations  WLX470,  WNC351  and 
 WHR919.  15  Specifically,  Line  of  Site  states  that  the  licensee  of  these  stations,  Peoples  Choice  TV,  had  agreed  to  resolve  any  actual  frequency  interference.  16 


 5.  With  regard  to  ITFS  frequency  availability,  Line  of  Site  argues  that  its  applications  were  grantable,  consistent  with  the  Commissions  requirements  regarding  frequency  availability  when  it  first 
 filed  its  applications  in  1992.  17  Line  of  Site  argues  that  it,  in  essence,  is  being  penalized  by  the  Commission  staffs  delay  in  processing  Line  of  Sites  applications  because  the  subject  applications 
 complied  with  Section  74.990(  a)  when  filed.  18  Line  of  Site  asserts  that  the  effect  of  the  delay  created  post 


 6  See  47  C.  F.  R.    74.  990(  a)  (1992). 
 7  See  Second  Report  and  Order,  6  FCC  Rcd  at  6803-  04. 
 8  See  47  C.  F.  R.    21.  902(  c)  (1992). 
 9  See  56  Fed.  Reg.  57808  (1991). 
 10  File  Nos.  BPMDC-  9200221  and  BPMDC-  9200414. 
 11  Letters  from  Sharon  M.  Bertelsen,  Supervisory  Attorney,  Video  Services  Division,  Mass  Media  Bureau  to  J. 
 Stephen  Rizley,  Line  of  Site,  Inc.  (April  21,  1999).  With  respect  to  the  A  Group  application,  the  Bureau  found  that  Line  of  Site's  application  would  cause  harmful  interference  to  Stations  WND273  and  WHF226.  With  respect  to  the 


 C  Group  application,  the  Bureau  found  that  Line  of  Site's  application  would  cause  harmful  interference  to  Stations  WLX470,  WNC351  and  WHR919. 
 12  Line  of  Site,  Inc.,  Petition  for  Reconsideration  (May  21,  1999). 
 13  Letter  from  Charles  E.  Dziedzic,  Assistant  Chief,  Video  Services  Division,  Mass  Media  Bureau  to  J.  Stephen 
 Rizley,  Line  of  Site,  Inc.  (June  15,  2000).  14 
 Line  of  Site  AFR.  15 
 Id.  at  4.  16 
 Id.  17 
 Id.  at  2.  18 
 Id. 
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 hoc  conditions  that  made  the  prospect  of  granting  Line  of  Sites  applications  inconsistent  with  the  Commissions  Rules.  19 
 6.  Finally,  Line  of  Site  maintains  that  its  applications  did  satisfy  Section  74.  990(  d)  in  that  there  were  no  6-  MHz  MDS  or  MMDS  channels  available  at  the  time  it  applied  for  the  subject  ITFS 
 channels.  20  Thus,  Line  of  Site  asserts  it  could  not  use  Channel  2A,  an  available  4  MHz  channel,  in  lieu  of  the  6  MHz  channel  that  it  applied  for  in  its  application.  21 


 7.  Discussion.  We  have  reviewed  the  Application  for  Review  and  find  that  the  Bureau  staff  properly  decided  the  matters  raised.  In  particular,  we  agree  with  the  Bureaus  analysis  and  conclusion 
 that  Line  of  Site  failed  to  meet  the  requirements  of  Section  74.990(  f)  of  the  Commissions  Rules  which  state  that  wireless  cable  applicants  and  licensees  of  ITFS  facilities  must  comply  with  the  interference 
 protection  requirements  of  Section  21.902  of  the  Commissions  Rules.  22  Further,  Section  74.903(  a)  of  the  Commissions  Rules  requires  that  an  applicant  prevent  co-  channel  and  adjacent  channel  interference 
 with  other  previously  proposed  ITFS  applicants  or  existing  licensees.  23  Line  of  Site  acknowledges  in  its  Application  for  Review  that  it  did  not  include  frequency  analyses  of  stations  with  which  its  proposed 
 operations  would  interfere.  24  Thus,  we  agree  with  the  Bureaus  conclusion  that  Line  of  Sites  applications  to  operate  ITFS  stations  did  not  meet  the  interference  protection  requirements  of  the  Commissions 
 Rules.  25  Accordingly,  we  affirm  the  dismissal  of  the  applications. 
 8.  We  believe,  however,  that  one  issue  warrants  further  comment.  Line  of  Site  argues  that  the  Bureaus  decision  must  be  overturned  as  it  was  not  required  to  submit  interference  studies  because 


 LOSI  [Line  of  Site,  Inc.]  and  Peoples  Choice  TV,  Inc.,  the  licensee  of  these  [interfered  with]  stations,  had  agreed  to  resolve  any  actual  frequency  interference,  as  is  encouraged  by  the  Commissions  Rules.  26 
 We  do  not  agree.  On  the  contrary,  the  Bureau  followed  well-  established  Commission  precedent  when  it  returned  Line  of  Sites  applications  for  not  including  the  required  interference  studies.  In  this  particular 
 instance,  although  Section  21.902(  a)  states  that  applicants  are  expected  to  cooperate  fully  in  attempting  to  resolve  problems  of  potential  interference  before  bringing  the  matter  to  the  attention  of  the  Commission,  27 
 Section  21.902(  c)  also  states  that  applicants  must  submit  interference  studies  with  their  applications.  28  Line  of  Sites  assertions  that  it  has  committed  to  make  every  effort  to  avoid  harmful  interference  to  others 
 and  to  cooperate  in  good  faith  should  any  interference  occur  in  the  future  does  not  excuse  its  failure  to  submit  detailed  interference  studies  as  required  by  Section  21.  902.  29 


 19  Id. 
 20  Id.  at  3. 
 21  Id. 
 22  47  C.  F.  R.    74.990;  see  also  47  C.  F.  R.    21.  902. 
 23  47  C.  F.  R.    74.903. 
 24  Line  of  Site  AFR  at  3-  4. 
 25  See  June  15,  2000,  Letter,  at    2. 
 26  Line  of  Site  AFR  at  4. 
 27  47  C.  F.  R.    21.902(  a). 
 28  See  47  C.  F.  R.    21.  902(  c). 
 29  See  4330  Applications  for  Authority  to  Construct  and  Operate  Multipoint  Distribution  Service  Stations  at  62 
 Transmitter  Sites,  10  FCC  Rcd  1335,  1470  (1994),  affd  per  curiam  sub.  nom  A/  B  Financial,  Inc.  v.  FCC,  76  F.  3d  1244  (D.  C.  Cir.  1995)  (4330  MDS  Applications  MO&  O);  See  e.  g.,  G.  C.  Cooper,  8  FCC  Rcd  7007,  7008  (Dom.  Fac. 


 Div.  1993)  (An  applicant's  general  statement  that  he  would  use  'all  legitimate  engineering  techniques'  does  not  constitute  the  kind  of  showing  discussed  in  the  MMDS  Allocation  Order  and  required  under  47  C.  F.  R.   
 21.  901(  d)(  7)."). 
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 9.  The  Section  21.902(  c)  requirement  of  an  applicant  to  submit  interference  analyses  at  the  time  it  files  its  application  is  separate  from  the  Section  21.  902(  a)  requirement  of  an  applicant  to  make 
 exceptional  efforts  to  avoid  harmful  interference  and  to  cooperate  fully  to  resolve  problems  of  potential  interference.  30  Nor  would  an  applicants  offer  to  file  curative  amendments  at  some  later  time  excuse  it 
 from  submitting  all  required  interference  studies  at  the  time  the  applications  are  initially  filed.  31  Based  upon  these  considerations,  we  conclude  that  Line  of  Site  failed  to  comply  with  the  technical  requirements 
 set  forth  in  Section  21.902  regarding  interference  protection  and  failed  to  demonstrate  that  it  is  technically  qualified  to  be  an  MDS  licensee  as  required  by  Section  21.900.  Thus,  we  conclude  that  these  applications 
 were  properly  returned  as  unacceptable  for  filing.  32  Based  on  the  record,  the  Bureau  determined  that  Line  of  Sites  applications  would  cause  harmful  interference  to  previously  authorized  stations.  33  Line  of  Site 
 has  admitted  in  the  record  of  this  proceeding  that  it  did  not  provide  any  interference  studies.  34  In  light  of  this  evidence,  we  agree  with  the  Bureau  that  Line  of  Site  was  not  in  full  compliance  with  Section  21.902, 
 and  thus,  its  applications  were  properly  returned  pursuant  to  the  Commissions  Rules. 
 10.  Because  we  find  dispositive  Line  of  Sites  failure  to  submit  the  required  interference  showings  with  its  applications  and  to  give  notice,  by  service  of  these  studies,  to  the  affected  parties,  it  is 


 unnecessary  to  address  petitioner's  other  arguments.  As  discussed  in  detail  above,  interference  analyses  are  necessary  at  the  time  of  application  filing  due  to  the  extensive  planning  and  engineering  involved  in 
 the  MDS  licensing  process. 
 11.  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 


 Commissions  Rules,  47  C.  F.  R.    1.  115,  the  Application  for  Review  filed  by  Line  of  Site,  Inc.  on  July  17,  2000  IS  DENIED. 


 FEDERAL  COMMUNICATIONS  COMMISSION 


 Marlene  H.  Dortch  Secretary 


 30  See  4330  MDS  Applications  MO&  O,  10  FCC  Rcd  at  1342;  Hinton  Telephone  Company,  Memorandum  Opinion 
 and  Order  on  Reconsideration,  10  FCC  Rcd  11625  (1995),  affd  per  curiam  sub.  nom  Knollwood,  Ltd.  v.  FCC,  84  F.  3d  1452  (D.  C.  Cir.  1996);  see  also  47  C.  F.  R.    21.  31. 


 31  See  RuralVision  Central,  Inc.,  Order  on  Reconsideration,  12  FCC  Rcd  21739,  21746    18  (MMB  VSD  1997); 
 Marylan  J.  Benson,  Order  on  Reconsideration,  7  FCC  Rcd  4668,  4669,  n.  9.  (Dom.  Fac.  Div.  1992);  Earl  V.  Levels,  Memorandum  Opinion  and  Order,  8  FCC  Rcd  5506,  5507    8  (Dom.  Fac.  Div.  1993). 


 32  New  Channels  Communications,  Inc.,  57  Rad.  Reg.  2d  1600,  1602  (P&  F  1985)  ("  In  our  view,  an  MDS  application 
 which  does  not  contain  the  important  and  essential  technical  showing  required  by    21.  902(  c)  cannot  be  characterized  as  complete,  or  in  substantial  compliance  with  the  Commission's  rules  and  regulations,  as  required  by 


 the  criteria  for  acceptability  outlined  in  rule    21.20(  a).").  33 
 See  n.  11  supra.  34 
 Line  of  Site  AFR  at  3-  4. 
4