$// MO&O, New ITFS (B-Chan, Roscoe and Snyder, TX) FCC 95-5 //$ $/ 74.913 Selection procedure for mutually exclusive ITFS applica /$ $/ 74.932 Eligibility and licensing requirements /$ $/ 74.931 Purpose and permissible service /$ $///FCC 95-5 1/12/95///$ ///newjob/// Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C. 20554 FCC 95-5 In re Applications of ) ) ) COLORADO INDEPENDENT SCHOOL ) File No. BPLIF-920821DB DISTRICT ) Snyder, TX ) ) TRENT INDEPENDENT SCHOOL ) File No. BPLIF-920203DI DISTRICT ) Roscoe, TX ) ) ) For Construction Permit and License ) in the Instructional ) Television Fixed Service on ) Channels B1, B2, B3, and B4. ) MEMORANDUM OPINION AND ORDER Adopted: January 3, 1995 Released:January 19, 1995 By the Commission: 1. The Commission has before it for consideration the mutually exclusive applications of Colorado Independent School District (Colorado) and Trent Independent School District (Trent), each seeking a construction permit and license in the Instructional Television Fixed Service (ITFS) on Channels B1-B4 in the areas of Snyder and Roscoe, 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. Colorado is accredited by the Texas Education Agency and proposes to serve the educational needs of students enrolled in schools both within and outside its jurisdiction. Trent, which is also accredited by the Texas Education Agency, proposes to provide ITFS service to students enrolled in accredited schools located outside its jurisdiction. Accordingly, Trent has submitted the requisite letters of intended use from schools that will use its service and has documented the establishment of a local programming committee. 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. Colorado is entitled to four points for being a school district engaged in the formal education of students enrolled in schools within its jurisdiction. Trent proposes to serve students outside of its jurisdiction and is, therefore, entitled to no points for being a local applicant. Accreditation. Colorado, accredited by the Texas Education Agency, is entitled to three points for accreditation. Although Trent proposes to serve accredited schools, a factor which satisfies its basic eligibility, it is not an accredited entity in its own right in the area it proposes to serve, the factor necessary for earning merit points under the accreditation criterion. Therefore, Trent is not entitled to any points for accreditation. See Instructional Television Fixed Service - Second Report and Order Reconsidered in MM Docket No. 83-523, 59 RR 2d 1355, 1370 (1986); and Unified School District #511, 8 FCC Rcd 7060, 7061 (1993). Also see, note 3 supra. Four-Channel Limitation. Neither applicant is the licensee of, or has filed applications for, additional ITFS channels in its proposed service area. Consequently, 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." Colorado's illustrative schedule and programming grid propose an average of 41 hours of formal educational programming per channel per week. Colorado is therefore entitled to two programming merit points. Trent's illustrative schedule and programming grid indicate an average of 24.375 hours of formal ITFS programming per channel per week, and Trent is therefore entitled to one program merit point. E- and F- Channel Group Relocation. Neither applicant is the current licensee of an E or F channel seeking to relocate to other channels. Consequently, neither is entitled to the one point for such applicants. Total. Colorado 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 programming per channel per week, for a total of eleven points. Trent is entitled to two points for observing the four-channel limitation and one point for proposing at least 21 hours of formal educational programming per channel per week, for a total of three points. Thus, the tentative selectee is Colorado. OTHER MATTERS 5. Colorado 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 Snyder Microwave Communications, L.C., which does not conform in all respects with our requirements. First, the term of the lease as written could extend beyond the ten-year period of the license. Specifically, the lease will run ten years from the "Start Date," which is defined as 30 days after the latest of three events to occur: (1) the satisfaction/waiver of various conditions precedent, including the lessee's acquisition of at least 20 channels in the market area; (2) the completion of construction of 20 channels in accordance with authorized permits and licenses; or (3) the construction of and a grant of a license to operate the present B-channel group. Events (1) and (2) will almost certainly be after the date of grant of this license application, and 30 days after event (3) will, by definition, extend the term of the lease beyond ten years. These provisions are inconsistent with the ten-year maximum term for excess capacity leases permitted by our Rules. Instructional Television Fixed Service in Gen. Docket Nos. 90-54 and 80-113, 5 FCC Rcd 6410, 6416 (1990). Second, there is no provision in the lease for acquisition of 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). Third, Section 11 provides that Colorado will not compete in any way with the excess capacity lessee in any operation for a period of three years beyond the term of the lease. Such covenant not to compete unduly restricts Colorado's operation of the proposed ITFS facility. See Blackwell Consolidated Independent School District, 8 FCC Rcd 1721, 1722 (1994). Although inconsistent with our requirements for excess capacity leases, these provisions neither reflect on Colorado's basic or comparative qualifications, nor preclude grant of an authorization. See Milwaukee Regional Medical Instructional Television Station, Inc., 2 FCC Rcd 1472, 1473 (1987). Accordingly, Colorado's authorization will be conditioned upon conformity of the lease to Commission requirements. 6. No petitions to deny or informal objections have been filed against Colorado's application, and we find Colorado fully qualified to be an ITFS licensee. We also conclude that grant of Colorado's application would serve the public interest, convenience and necessity. 7. Accordingly, IT IS ORDERED, That the application of Trent Independent School District (BPLIF-920203DI) IS DENIED, and the application of Colorado Independent School District (BPLIF-920821DB) IS GRANTED, subject to the condition that within 30 days of the release of this Order, Colorado 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 S. Caton Acting Secretary