S// MO&O, New ITFS (D-Chan, Roscoe and Snyder, TX) FCC 94-302 //$ $/ 74.913 Selection procedure for mutually exclusive ITFS applica /$ $/ 74.932 Eligibility and licensing requirements /$ $/ 74.931 Purpose and permissible service /$ ///newjob/// $///FCC 94-302,1/10/95///$ Before the Federal Communications Commission Washington, DC 20554 FCC 94-302 In re Applications of ) ) SWEETWATER INDEPENDENT ) File No. BPLIF-920203DH SCHOOL DISTRICT ) Roscoe, Texas ) ) HERMLEIGH INDEPENDENT ) File No. BPLIF-920821DA SCHOOL DISTRICT ) Snyder, Texas ) ) For Construction Permit and License) in the Instructional Television ) Fixed Service on Channels D1-D4 ) MEMORANDUM OPINION AND ORDER Adopted: November 28, 1994 Released: January 13, 1995 By the Commission: 1. The Commission has before it for consideration the above-captioned mutually exclusive applications of Sweetwater Independent School District (Sweetwater) and Hermleigh Independent School District (Hermleigh), each seeking a construction permit and license in the Instructional Television Fixed Service (ITFS) on Channels D1-D4 in the areas of Roscoe and Snyder, Texas, respectively. BASIC ELIGIBILITY 2. Before applying the mutually exclusive selection procedure to determine the number of merit points to be awarded to each applicant, we must first ascertain the basic eligibility of the applicants. Educational institutions and governmental organizations that propose to serve either their own enrolled students or students at accredited schools within their respective jurisdictions establish their eligibility by accreditation from the appropriate state department of education or a recognized regional or national accrediting organization. Other ITFS applicants that propose to serve students at accredited schools outside of their respective jurisdictions must, to be eligible, submit letters of intended use from those schools and establish local program committees in those communities. See 47 C.F.R. Section 74.932(a)(1)-(5). Both applicants are qualified to be ITFS licensees. Both Sweetwater and Hermleigh are school districts that are accredited by the Texas Education Agency and that are applying to provide ITFS service to students enrolled at schools within their jurisdictions. MUTUALLY EXCLUSIVE SELECTION PROCEDURE 3. In cases of mutually exclusive applications, where applicants are competing for the same or adjacent channels in the same geographic area, each application is reviewed pursuant to our comparative process. This procedure awards a maximum of twelve merit points based on five criteria deemed to be most relevant to predicting the applicant best qualified to provide the service for which the ITFS spectrum has been allocated. Instructional Television Fixed Service - Second Report and Order in MM Docket No. 83-523, (Second Report and Order), 101 FCC 2d 49, 65-72 (1985); 47 C.F.R. Section 74.913. First, four points are awarded to local applicants. Second, three points are awarded to applicants which are accredited schools, educational institutions or school boards and school districts applying within their jurisdictions. Third, two points are awarded to applicants whose requests would result in the acquisition by these applicants of four or fewer ITFS channels within the particular area. Fourth, either one or two points may be awarded to applicants for specified levels of proposed ITFS programming. Fifth, one point is awarded to applicants which are existing E or F Channel licensees seeking to relocate on another ITFS channel group, where such applicants show an established need for an expanded service that cannot be accommodated on their grandfathered E or F facilities. The tentative selectee is the applicant with the highest score. 4. Under this comparative selection process, the applicants are awarded points based on the following criteria: Localism. Both Sweetwater and Hermleigh are entitled to four points because they are school districts that propose to serve the formal educational needs of students at schools located within their jurisdictions. Accreditation. Both applicants are entitled to three points because they are accredited by the Texas Education Agency. Four-Channel Limitation. Neither applicant is the licensee of, or has filed applications for, additional ITFS channels in its proposed service area. Therefore, each applicant is entitled to two points for remaining within the four-channel limitation. Instructional Programming. ITFS applicants detail their formal educational and other ITFS programming proposals in both a program schedule and a program "grid." Sweetwater's illustrative schedule and program grid propose an average of 24.375 hours of formal educational programming per channel per week. Thus, Sweetwater is entitled to one programming merit point. In contrast, Hermleigh's illustrative schedule and program grid propose an average of 41 hours of formal educational programming per channel per week. Thus, Hermleigh is entitled to two programming merit points. E- and F- Channel Group Relocation. Neither applicant is the current licensee of an E or F channel seeking to relocate to other channels. Therefore, neither is entitled to the one point for such applicants. Total. Sweetwater is entitled to four points for being local, three points for being accredited, two points for observing the four-channel limitation, and one point for proposing at least 21 hours of formal educational ITFS programming per channel per week, for a total of ten points. Hermleigh is entitled to four points for being local, three points for being accredited, two points for observing the four-channel limitation and two points for proposing at least 41 hours of formal educational ITFS programming per channel per week, for a total of eleven points. Thus, the tentative selectee is Hermleigh. OTHER MATTERS 5. Hermleigh proposes to lease its excess capacity for non- ITFS use, as permitted by 47 C.F.R. Section 74.931. The applicant has submitted a copy of its lease with Snyder Microwave Communications, L.C., two of whose provisions do not comply with Commission's requirements for such leases. First, the lease appears to give Snyder unilateral authority to change the transmission site. We view this as inconsistent with the responsibility of the ITFS licensee to ensure the adequacy of its service. Second Report and Order, 101 FCC 2d at 90. Further, the lease does not include a provision which would afford the licensee an opportunity to purchase or lease the ITFS equipment in the event that the lease is terminated as a result of some action on the part of the excess capacity lessee. We believe that, as a matter of policy, such a provision should be added to insure that a licensee will not be forced to interrupt its ITFS programming as a result of any action on the part of its lessee. See Turner Independent School District, 8 FCC Rcd 3153, 3155 (1993). Although inconsistent with our requirements for excess capacity leases, these provisions neither reflect on the applicant's basic or comparative qualifications, nor preclude grant of an authorization. Nonetheless, Hermleigh's authorization will be conditioned upon conformity of the lease to Commission requirements. See Milwaukee Regional Medical Instructional Television Station, Inc., 2 FCC Rcd 1472, 1473 (1987). 6. No petitions to deny or informal objections have been filed against Hermleigh's application, and we find Hermleigh fully qualified to be an ITFS licensee. We also conclude that grant of Hermleigh's application would serve the public interest, convenience and necessity. 7. Accordingly, IT IS ORDERED, That the application of Sweetwater Independent School District (BPLIF-920203DH) IS DENIED, and the application of Hermleigh Independent School District (BPLIF-920821DA) IS GRANTED, subject to the condition that within 30 days of the release of this Order, Hermleigh submit to the Chief, Distribution Services Branch for approval, information demonstrating compliance with Commission requirements, including, if appropriate, an amended lease agreement conforming in the manner discussed herein. 8. IT IS FURTHER ORDERED, That the staff of the Mass Media Bureau shall send copies of this decision to the applicants by certified mail, return receipt requested. FEDERAL COMMUNICATIONS COMMISSION William F. Caton Acting Secretary