*Pages 1--6 from Microsoft Word - 28871* Federal Communications Commission FCC 03- 143 Before the Federal Communications Commission Washington, D. C. 20554 In the Matter of Application of CLARENDON FOUNDATION For a new Instructional Television Fixed Service Station on the A Channel Group at Payne, Georgia BALDWIN COUNTY SCHOOL SYSTEM For a new Instructional Television Fixed Service Station on the B Channel Group at Payne, Georgia SHEKINAH NETWORK For a new Instructional Television Fixed Service Station on the C Channel Group at Payne, Georgia GEORGIA COLLEGE – MACON CAMPUS For a new Instructional Television Fixed Service Station on the G Channel Group at Payne, Georgia ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) File No. BPLIF- 951020NC File No. BPLIF- 951020QQ File No. BPLIF- 951020QR File No. BPLIF- 951020PT MEMORANDUM OPINION AND ORDER Adopted: June 24, 2003 Released: June 27, 2003 By the Commission: I. INTRODUCTION 1. Herein, we consider four separate applications for review (AFR) filed on August 23, 1999, on behalf of Baldwin County School System (Baldwin), 1 Clarendon Foundation (Clarendon), 2 Shekinah Network (Shekinah) 3 and Georgia College- Macon Campus (GCMC) 4 (collectively, Applicants). Applicants seek review of letters dated May 10, 1999, denying petitions for reconsideration of the dismissal of their respective applications for new Instructional Television Fixed Service (ITFS) stations at 1 Application for Review (filed Aug. 23, 1999) (Baldwin AFR). 2 Application for Review (filed Aug. 23, 1999) (Clarendon AFR). 3 Application for Review (filed Aug. 23, 1999) (Shekinah AFR). 4 Application for Review (filed Aug. 23, 1999) (Georgia Macon AFR). 1 Federal Communications Commission FCC 03- 143 2 Payne, Georgia. 5 Because Applicants raise essentially identical issues and because the applications request authorizations for ITFS stations in the same community, we are considering their applications for review together for administrative efficiency. For the reasons stated below, we deny all four applications for review. II. BACKGROUND 2. On October 20, 1995, Applicants filed the captioned applications for new ITFS stations at Payne, Georgia. Subsequently, the Chief, Distribution Services Branch, Video Services Division (Division), of the former Mass Media Bureau dismissed the applications of GCMC, 6 Clarendon, Baldwin, 7 and Shekinah 8 because their applications did not conform to the interference limitation requirements of Section 74. 903( b) of the Commission’s Rules. 9 On August 14, 1998, the Applicants filed petitions for reconsideration of the dismissal of their applications. 10 On May 10, 1999, the Division issued the Reconsideration Letters denying Applicants’ petitions for reconsideration. On August 23, 1999, Applicants filed the instant AFRs. III. DISCUSSION 3. The Applicants contend that they complied with the provisions of Section 74. 903( b) of the Commission’s Rules, 11 and that, in concluding otherwise, the Division misinterpreted the rule. 12 Specifically, the Applicants argue that under Section 74. 903( b)( 1)( i), they were not required to protect any receive site where there was a terrain obstruction in the electrical path between Applicants’ proposed transmitting antenna and the receive site’s antenna. 13 With respect to the electrical paths that were not obstructed, the Applicants contend that they complied with Section 74.903( b) of the Commission’s Rules 14 because their interference analyses showed that the desired- to- undesired (D/ U) signal ratio at the unobstructed receive sites equaled or exceeded 45 dB, in the case of co- channel sites, and 0 dB, in the 5 See Letter dated May 10, 1999 from Chief, Video Services Division, Mass Media Bureau to Ronald D. Maines, Esq. and Dawn G. Alexander, Esq. (Reconsideration Letter). Public notice of the actions was given on July 23, 1999. See MMB Broadcast Actions Public Notice Report No. 44535A (rel. Jul. 23, 1999). 6 The GCMC application was dismissed on April 22, 1998. 7 The Clarendon and Baldwin applications were dismissed on April 30, 1998. 8 The Shekinah application was dismissed on June 30, 1998. 9 In contravention of Section 74. 903( b), Baldwin’s proposed facilities would cause interference to Station WLX652, Jeffersonville, Georgia, licensed to West Laurens High School; Clarendon’s proposed facilities would cause interference to Station WNC335, Jeffersonville, Georgia, licensed to Laurens County Schools; GCMC’s proposed facilities would cause interference to Station WLX867, Madison, Georgia, licensed to Newton County School System and Station WLX666, Jeffersonville, Georgia, licensed to Twiggs County Middle School.; and Shekinah’s proposed facilities would cause interference to Station WLX695, licensed to Bleckley County Schools. 10 See Petitions for Reconsideration filed by Baldwin, Clarendon, and GCMC (filed May 29, 1998). 11 47 C. F. R. § 74.903 12 See Baldwin AFR at 2- 3; Clarendon AFR at 2- 4; GCMC AFR at 2- 3; Shekinah AFR at 2- 4. 13 See Baldwin AFR at 2- 4; Clarendon AFR at 2- 5; GCMC AFR at 2- 4; Shekinah AFR at 2- 5. 14 47 C. F. R. § 74.903( b). 2 Federal Communications Commission FCC 03- 143 5 therefore, that GCMC’s application was defective and that it was properly dismissed pursuant to Section 74.903. 10. In sum, contrary to Applicants’ contentions, there is no interpretation of Section 74.903 of the Commission’s Rules that would render Applicant’s applications acceptable. The Division properly interpreted the plain meaning of the rule and concluded to bar acceptance of applications that contained multiple defects in their interference analyses. 11. Finally, we reject Applicants’ arguments that any interference caused to the affected stations is moot because the affected stations have never functioned as bona fide ITFS stations. 26 The licenses of the affected stations were valid at the time the Applicants filed their applications. Because ITFS applications must be filed only during designated filing windows, 27 it is vital that applicants demonstrate compliance with the pertinent interference criteria as of the time they file their application. Applicants may not ignore the interference protection criteria in Section 74.903 of the Commission’s Rules 28 in the hope that the Commission will later cancel or revoke the licenses of affected stations. We note that Applicants did file petitions to revoke the licenses of the affected stations. However, those petitions were filed well after Applicants’ applications were dismissed as defective. For reasons of administrative efficiency alone, the Commission cannot countenance the acceptance of applications with defects which may – or may not – be cured by the happening of conditions subsequent. Thus, in a parallel context, the Commission has said, “[ w] e cannot allow a party to 'sit back and hope that a decision will be in its favor and, when it isn't, to parry with an offer of more evidence. No judging process in any branch of government could operate efficiently or accurately if such a procedure were allowed. ’” 29 Therefore, we conclude that Applicants’ filing of petitions to revoke did not excuse their failure to comply with the interference protection requirements contained in Section 74.903( b) of the Commission’s Rules. IV. CONCLUSION 12. The multiple omissions and miscalculations in Applicants’ interference analyses rendered the underlying applications defective. The staff’s dismissal of the applications was compelled by Section 74.903( b) of the Commission’s Rules 30 and was legally and procedurally correct in all respects. Accordingly, we deny the instant applications for review. V. ORDERING CLAUSE 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 Section 1. 115 of the Commission’s Rules, 47 C. F. R. §1.115, the Applications for Review filed by Baldwin County School and the receive site, and that the D/ U ratio at that receive site is 31.5 dB. Also, with respect to a receive site located at 32° 48’ 25” N. Lat. and 83° 28’ 37” W. Long., while GCMC’s analysis indicates that the D/ U ratio would be 46. 0 dB, the staff’s engineering analysis determined that the D/ U ratio was 38. 1 dB. 26 Baldwin AFR at 5; Clarendon AFR at 6; GCMC AFR at 5; Shekinah AFR at 5- 6. 27 See Amendment of Part 74 of the Commission’s Rules with Regard to the Instructional Television Fixed Service, Report and Order, MM Docket No. 93- 24, 10 FCC Rcd 2907 (1995). 28 47 C. F. R. § 74.903. 29 See Canyon Area Residents, Memorandum Opinion and Order, 14 FCC Rcd 8153, 8154 ¶ 7 (1999), quoting Colorado Radio Corp. v. FCC, 118 F. 2d 24, 26 (D. C. Cir. 1941). 30 47 C. F. R. § 74.903. 5 Federal Communications Commission FCC 03- 143 6 System, Clarendon Foundation, Georgia College- Macon Campus, and Shekinah Network on August 23, 1999 ARE DENIED. FEDERAL COMMUNICATIONS COMMISSION Marlene H. Dortch Secretary 6