$// New ITFS (D-Chan, Santa Fe, New Mexico) FCC 94-317 //$ $/ 74.913 Selection Procedure for mutually exclusive ITFS applica /$ $/ 74.932 Eligibility and licensing requirements /$ $/ 74.931 Purpose and permissible service /$ ///newjob/// $///FCC 94-317 1-19-95///$ Before the Federal Communications Commission Washington, DC 20554 FCC 94-317 In re Applications of ESPANOLA PUBLIC SCHOOLS File No. BPLIF-920608DM Santa Fe, New Mexico SANTA FE COMMUNITY COLLEGE File No. BPLIF-921015DC Santa Fe, New Mexico For Construction Permit and License in the Instructional Television Fixed Service on Channels D1-D4 MEMORANDUM OPINION AND ORDER Adopted: December 9, 1994 Released: January 24, 1995 By the Commission: 1. The Commission has before it for consideration the above-captioned mutually exclusive applications of Espanola Public Schools (Espanola) and Santa Fe Community College (SFCC), each seeking a construction permit and license in the Instructional Television Fixed Service (ITFS) on Channels D1-D4 in the area of Santa Fe, New Mexico. 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. Espanola is a school district that is accredited by the State of New Mexico Department of Education and that is applying to provide ITFS service to students enrolled at schools within its jurisdiction. SFCC is a community college that is accredited by the North Central Association of Colleges and Schools and that is applying to provide ITFS service to its own enrolled students. 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. Espanola is entitled to four points because it is a school district that proposes to serve the formal educational needs of students at schools located within its jurisdiction. Likewise, SFCC is entitled to four points because it is a community college that proposes to serve the formal educational needs of its own enrolled students. Accreditation. Espanola is entitled to three points because it is accredited by the State of New Mexico Department of Education. SFCC is also entitled to three points because it is accredited by the North Central Association of Colleges and Schools. 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 programming "grid." Espanola's illustrative schedule and programming grid propose an average of 24.375 hours of formal educational programming per channel per week. Thus, Espanola is entitled to one programming merit point. In contrast, SFCC's illustrative schedule and programming grid, as timely amended, propose an average of 42 hours of formal educational programming per channel per week. Thus, SFCC 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. Espanola 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. SFCC 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 SFCC. OTHER MATTERS 5. In its application as initially filed, SFCC proposed to present an average of 20 hours of ITFS programming per channel per week, all of which was to be formal educational programming. On the "B" cut-off date of July 20, 1993, however, SFCC amended its application to propose a weekly per channel average of 42 hours of formal educational programming. That amendment, SFCC later claimed, was consistent with the 168 hours of weekly airtime specifically provided for SFCC's use in its excess capacity lease agreement with MultiMedia Development Corporation (MultiMedia), and entitled SFCC to two programming merit points, pursuant to the ITFS comparative selection process. Espanola challenges these claims, arguing that other lease provisions afford SFCC access to only 40 hours of airtime per channel per week to meet its ITFS programming schedule needs. Specifically, Espanola points to Paragraph 2(b) of the lease agreement which states that the total 168 hours of airtime "shall include twenty (20) hours of Air-time for each channel each week (Monday through Saturday) to be used by Lessor for its ITFS scheduled programs aired between the hours of 8:00 a.m. and 10:00 p.m. . . . [and] Lessor reserves for any expanded ITFS program schedule needs, an additional twenty (20) hours of weekly airtime per licensed channel, between the hours of 8:00 a.m. and 10:00 p.m. . . . (Monday through Friday) excluding Holidays and vacation days." According to Espanola, the Commission should treat these inconsistent lease provisions in the same manner as it interprets discrepancies between an applicant's illustrative schedule and its programming grid, namely, in a manner that results in the fewest points to the applicant. Further, Espanola contends that SFCC does not have immediate access to 42 hours per channel per week since Paragraph 2(c) of the lease agreement requires SFCC to provide MultiMedia with 120-days notice of any modification to its programming schedule, including SFCC's intent to recapture airtime. In Espanola's view, the applicants should be considered tied comparatively, and it urges the Commission to evaluate the applicants' student enrollment figures pursuant to the ITFS tie-breaker mechanism. 6. As indicated previously, the Commission's primary focus in evaluating an ITFS applicant's programming proposed is directed to the detailed illustrative schedule and programming grid prescribed in the ITFS application form (FCC Form 330). Where the amounts and types of programming proposed in the schedule and in the programming grid are inconsistent, we consider as correct, for comparative purposes, the amount and type which result in the least number of points to the applicant. See Hispanic Information and Telecommunications Network, Inc., 7 FCC Rcd 5924 (1992). Thereafter, we look to any excess capacity lease agreement to ensure that the amount of programming to be transmitted, that is credited to the applicant, is demonstrably permitted under the lease. See Harlem Consolidated School District #122, FCC 94-312, adopted December 8, 1994. Further specification in the lease agreement of the types of programming and the amounts thereof has not been deemed either necessary or appropriate. Indeed, we would consider the inclusion of such provisions in a lease agreement to be unduly restrictive of the applicant's operation of the proposed ITFS facility and we would, as we have done with respect to other lease provisions that did not conform with our requirements, require the applicant to make whatever changes were appropriate. E.g., Blackwell Consolidated Independent School District, 9 FCC Rcd 1721 (1994). Against this backdrop, further consideration of the inconsistent provisions complained of in Paragraph 2(b) does not appear warranted. Here, the lease agreement demonstrates a total of 168 hours of airtime available to SFCC, which supports the provision of an average of 42 hours per channel per week as proposed in the July 20, 1993 amendment. 7. Paragraph 2(c) of the lease agreement does require 120-days notice to MultiMedia for any modifications to SFCC's initial schedule or any recapture of airtime provided for in that schedule but not actually utilized by SFCC. However, that paragraph also specifically provides that within 30 days after Commission grant of its application, SFCC shall present Multi Media with "its schedule in accordance with paragraph 2(b) hereof," a provision that affords access to a total of 168 hours of airtime, apparently immediately. Even if a 120-days notice were required, we would not find that notification requirement, standing alone, sufficient to discredit SFCC's programming proposal. Pursuant to Section 73.3598 of our rules, ITFS applicants, such as SFCC, are afforded an 18-month period within which to construct their facilities. There are no facts or other information before us to indicate that the 120-days notification requirement would preclude SFCC from being able to effectuate fully, as we expect all similar ITFS applicants, the programming proposal for which it obtained comparative credit at the time the ITFS facilities are constructed and service is commenced. In view of the foregoing, we conclude that our award of the two programming merit points to SFCC is proper and that invocation of our ITFS comparative tie-breaker mechanism in this proceeding is not warranted. 8. As indicated above, SFCC proposes to lease its excess capacity for non-ITFS use, as permitted by 47 C.F.R. Section 74.931, and has submitted a copy of its lease with MultiMedia. Our review of the other provisions set forth therein finds that they conform in all respects with our requirements for such leases. 9. No petitions to deny or informal objections have been filed against SFCC's application, and we find SFCC fully qualified to be an ITFS licensee. We also conclude that grant of SFCC's application would serve the public interest, convenience and necessity. 10. Accordingly, IT IS ORDERED, That the application of Espanola Public Schools (BPLIF-920608DM) IS DENIED, and the application of Santa Fe Community College (BPLIF-921015DC) IS GRANTED. 11. 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