$// MO&O, New ITFS (D-Chan, Sumner, TX, et al.) FCC 94-306 //$ $/ 74.913 Selection procedure for mutually exclusive ITFS applica /$ $/ 74.932 Eligibility and licensing requirements /$ S/ 74.931 Purpose and Permissible service /$ Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C. 20554 FCC 94-306 In re Applications of ) ) ) DETROIT INDEPENDENT SCHOOL DISTRICT ) File No. BPLIF-920714DB Sumner, TX ) ) TITUS COUNTY MEMORIAL HOSPITAL ) File No. BPLIF-930416DK Mount Pleasant, TX ) ) NORTH LAMAR SCHOOL DISTRICT ) File No. BPLIF-930416DL Paris, TX ) ) TEXARKANA INDEPENDENT SCHOOL DISTRICT ) File No. BPLIF-930416EP Texarkana, TX ) ) ATOKA KIAMICHI AREA VO-TECH ) File No. BPLIF-921123DC Kenefic, OK ) ) For Construction Permit and License ) in the Instructional Television ) Fixed Service on Channels D1, D2, ) D3, and D4. ) ) MEMORANDUM OPINION AND ORDER Adopted: December 8, 1994 Released: December 19, 1994 By the Commission: 1. The Commission has before it for consideration the above-captioned mutually exclusive applications of Detroit Independent School District (Detroit), Titus County Memorial Hospital (Titus), North Lamar School District (Lamar), Texarkana Independent School District (Texarkana), and Atoka Kiamichi Area Vo-Tech (Atoka), each seeking a construction permit and license in the Instructional Television Fixed Service (ITFS) on Channels D1-D4 in the areas of Sumner, Mount Pleasant, Paris, and Texarkana, Texas, and Kenefic, Oklahoma, 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). Each applicant is qualified to be an ITFS licensee. Detroit, Lamar, and Texarkana are school districts accredited by the Texas Education Agency. These applicants propose to serve the formal educational needs of students enrolled in schools located both within and outside their jurisdictions. Titus is a non-profit organization whose purposes are educational and include providing service to accredited schools and local medical facilities. Titus is accredited by the Joint Commission on the Accreditation of Healthcare Organizations. See 47 C.F.R. Section 74.932(a). Atoka is a vocational school accredited by North Central University that proposes to provide formal educational programming to its own students and to other schools in the area. MUTUALLY EXCLUSIVE SELECTION PROCEDURE 3. In cases of mutually exclusive ITFS 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. Each applicant is entitled to four points for being local. Detroit, Lamar, and Texarkana are school districts serving the formal educational needs of schools within their own jurisdictions. Titus is providing ITFS service in the area where its facilities are located. Atoka is serving the formal educational needs of its own students, as well as other students enrolled in schools in the area. Accreditation. Detroit, Lamar, and Texarkana are entitled to three points for being accredited. They are accredited by the Texas Education Agency. Atoka, accredited by North Central University, is also entitled to three points for accreditation. With respect to Titus, the Commission has specifically held that hospitals and medical consortia do not qualify as accredited institutions for the purpose of receiving accreditation points. Instructional Television Fixed Service-Reconsideration of Second Report and Order in MM Docket No. 83- 523, 59 RR 2d 1355, 1371 (1986). See also, Mooreland Public Schools, 9 FCC Rcd 527 (1994). Thus, Titus is not entitled to the three points for accreditation. Four-Channel Limitation. No 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 programming "grid." Where the amounts and types of programming proposed in the schedule and in the grid are inconsistent, we shall consider as correct, for comparative purposes, the amount and type which result in the least number of points to the applicant, so long as the excess capacity lease permits that level of programming to be transmitted. See Hispanic Information and Telecommunications Network, Inc., 7 FCC Rcd 5924 (1992). Detroit's illustrative schedule and programming grid propose an average of 24.375 hours of formal educational programming per channel per week. Thus, Detroit is entitled to one programming merit point. Because the illustrative schedules and programming grids submitted by the other applicants do not establish the threshold amount at which merit points are awarded, none of these applicants is entitled to any programming merit points. The illustrative schedule and programming grid of Titus propose averages of only 9.25 hours of formal educational programming and 13.75 hours of other ITFS programming per channel per week. There are inconsistencies between the amounts of programming set forth in the illustrative schedules and programming grids of Lamar, Texarkana and Atoka. Using the lesser amounts specified, Lamar and Texarkana are deemed to have each proposed averages of 19.625 hours of formal educational programming per channel per week. Similarly, Atoka is deemed to have proposed averages of 10 hours of formal educational programming and 14 hours of other ITFS programming per channel per week. Again, the amounts of programming proposed are not sufficient to entitle any of these applicants to any programming merit points. E- and F- Channel Group Relocation. No applicant is the current licensee of an E or F channel seeking to relocate to other channels. Consequently, no applicant is entitled to the one point for such applicants. Total. Detroit 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 programming, for a total of ten points. Lamar, Texarkana, and Atoka are entitled to four points for being local, three points for being accredited, and two points for observing the four-channel limitation, for a total of nine points each. Titus is entitled to four points for being local and two points for observing the four-channel limitation, for a total of six points. Thus, the selectee is Detroit. While the application of Texarkana is only directly mutually exclusive with the application of Titus, it is considered in the mutually exclusive group with Detroit since Detroit and Titus are directly mutually exclusive. In view of our action denying the application of Titus, there is no longer any mutual exclusivity between Detroit and Texarkana, and the application filed by Texarkana also will be granted. OTHER MATTERS 5. No determination has been made that the tower heights of three of the receive sites proposed by Detroit would not constitute a hazard to air navigation. Accordingly, any grant of a construction permit/license to Detroit will be appropriately conditioned. 6. Detroit and Texarkana propose to lease excess capacity for non-ITFS use, as permitted by 47 C.F.R. Section 74.931. Detroit has submitted a copy of its lease with RuralVision South, Inc., and Texarkana has submitted a copy of its lease with Wireless Communications, Inc. Both leases conform in all respects with our requirements. In addition, no petitions to deny or informal objections have been filed against either Detroit's application or that of Texarkana. 7. We find Detroit and Texarkana fully qualified to be ITFS licensees and conclude that grant of their applications would serve the public interest, convenience and necessity. 8. Accordingly, IT IS ORDERED, That the applications of Titus County Memorial Hospital (BPLIF-930416DK), North Lamar School District (BPLIF- 930416DL), and Atoka Kiamichi Area Vo-Tech (BPLIF-921123DC) ARE DENIED, and the applications of Detroit Independent School District (BPLIF-920714DB) and Texarkana Independent School District (BPLIF-930416EP) ARE GRANTED. 9. IT IS FURTHER ORDERED, That the authorization issued to Detroit Independent School District shall be conditioned as follows: This authorization is subject to the condition that construction of the receive towers at receive site locations R-9, R-10, and R-11 is prohibited until clearance is received from the Federal Aviation Administration, the Commission is so notified, and the appropriate painting and lighting specifications are determined. 10. 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