$// MO&O, New ITFS (A-Channels) Ariton, Elba, and Dothan, AL FCC 95-6 //$ $/ 47.C.F.R. Section 74.903 Interference /$ $/ 47 C.F.R. Section 74.932 Eligibility and Licensing Requirements /$ $/ 47 C.F.R. Section 74.913 Selection Procedure for Mutually Exclusive /$ $/ 47 C.F.R. Section 74.911 Processing of ITFS Station Application /$ $/ 47 C.F.R. Section 74.931 Purpose and permissible service /$ $///FCC 95-6 1/12/95///$ ///newjob/// Before the Federal Communications Commission Washington, DC 20554 FCC 95-6 In re Applications of ) ) BARBOUR COUNTY BOARD OF ) File No. BPLIF-920506DI EDUCATION ) Ariton, AL ) ) ) GENEVA COUNTY BOARD OF ) File No. BPLIF-930219EL EDUCATION ) Elba, AL ) ) ) HOUSTON ACADEMY ) Dothan, AL ) File No. BPLIF-920402DM ) ) For Construction Permit and License ) in the Instructional Television Fixed ) Service on Channels A1-A4 ) MEMORANDUM OPINION AND ORDER Adopted: January 3, 1995 Released:January 19, 1995 By the Commission: 1. The Commission has before it for consideration the above-captioned mutually exclusive applications of Barbour County Board of Education (Barbour), Geneva County Board of Education (Geneva), and Houston Academy (Houston), each seeking a construction permit and license in the Instructional Television Fixed Service (ITFS) on Channels A1-A4. The applicants propose to serve the areas of Ariton, Elba and Dothan, Alabama, 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). All of the applicants are qualified to be ITFS licensees. Barbour and Geneva are school districts that are accredited by the Alabama State Department of Education and that propose to serve the formal educational needs of students enrolled at schools both within and outside their jurisdictions. Houston is accredited by the Southern Association of Colleges and Schools and is proposing to serve its own students, as well as students at other schools located in the area. 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. Each applicant is entitled to four points for being local. Barbour and Geneva are school boards proposing to provide ITFS service to schools within their jurisdictions. Houston is a school proposing to provide ITFS service to its own enrolled students. Accreditation. Each applicant is entitled to three points for accreditation. Barbour and Geneva are accredited by the Alabama State Department of Education, whereas Houston is accredited by the Southern Association of Colleges and Schools. Four-Channel Limitation. None of the applicants 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 will 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). Geneva's illustrative schedule proposes an average of 23.625 hours of formal educational programming per channel per week. However, its programming grid specifies only an average of 21 hours per channel per week of such programming. Using the lesser amount specified, Geneva is deemed to have proposed an average of 21 hours of formal educational programming and, therefore, is entitled to one programming merit point.. Barbour's illustrative schedule and programming grid propose an average of 24.375 hours of formal educational programming per channel per week. Thus, Barbour is entitled to one programming merit point. Houston's illustrative schedule and programming grid propose an average of 21 hours of formal educational programming per channel per week. Thus, Houston is also entitled to one programming merit point. E- and F- Channel Group Relocation. None of the applicants is the current licensee of an E or F channel seeking to relocate to other channels. Therefore, no applicant is entitled to the one point for such applicants. Total. Barbour, Geneva and Houston are each entitled to a total of ten points: 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 per channel per week. Because the applicants are tied, we must utilize our tie-breaker mechanism to determine the winning applicant. TIE-BREAKER MECHANISM 5. When the comparative procedure results in a tie among two or more applicants, the parties are given 30 days from notification to negotiate an agreement regarding division of the use of channels. If no agreement is reached and advanced to the Commission within that time, the tentative selectee is determined through the tie-breaker mechanism detailed in Instructional Television Fixed Service - Third Report and Order in MM Docket No. 83-523, ("Third Report and Order"), 4 FCC Rcd 4830 (1989); Third Report and Order Reconsidered, 5 FCC Rcd 945 (1990); and 47 C.F.R. Section 74.913(d). This mechanism is based upon the submission by each applicant of the number of students at its proposed receive sites who are formally enrolled in classes for credit toward an academic degree or diploma or a legally required certification or license. Each applicant then has 15 days to respond to any aspect of the enrollment submissions. Once this response period has expired, the Commission compares the figures to determine if any applicant's system reaches less than 80 percent as many students as another applicant's. If so, the application resulting in service to the fewer number of students is denied, and the remaining application is granted. If more than one applicant remains, the channels or channel capacity are evenly divided among the remaining applicants. Because the three applicants here did not reach an agreement regarding the use of the channels, we look to the enrollment figures submitted by each. 6. Barbour and Geneva submitted enrollment figures for receive sites located within their respective jurisdictions, as well as for receive sites outside their jurisdictions. However, we cannot count the students from those sites outside their jurisdictions because the letters of intended use were not submitted prior to the "B" cut-off date of June 11, 1993. In addition, most of the letters submitted did not conform with our requirements as outlined in 47 C.F.R. Section 74.932, Note 2. As a result, we will count enrolled students only at schools within Barbour and Geneva's respective jurisdictions. Accordingly, we will credit Barbour with 1,920 students and Geneva with 2,840 students. Houston has submitted timely and properly executed documentation showing that a total of 21,832 students will be served at its receive sites. Because the numbers of students credited to Barbour, 1,920, and to Geneva, 2,840 are less than 80 percent of the number of students credited to Houston, 21,832, Houston will be authorized to operate facilities on Channels A1-A4 and the applications filed by Barbour and Geneva will be denied. OTHER MATTERS 7. Houston 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 Wiregrass Cable Television, which does not, however, entirely conform to the Commission's requirements. Specifically, the lease does not provide for the licensee's right to purchase the ITFS equipment at its fair market value in the event the lease is terminated. We have consistently maintained that the licensee be permitted the opportunity to purchase the ITFS equipment necessary to maintain its operation in the event of any action on the lessee's part which would terminate the lease arrangement. See Turner Independent School District, 8 FCC Rcd 3153, 3155 (1993). The lack of such provision does not reflect adversely on Houston's basic or comparative qualifications nor preclude grant of an authorization. Nevertheless, Houston'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 (1993). 8. No petitions to deny or informal objections have been filed against Houston's application, and we find Houston fully qualified to be an ITFS licensee. We also conclude that grant of Houston's application would serve the public interest, convenience and necessity. 9. Accordingly, IT IS ORDERED, That the applications of Barbour County Board of Education (BPLIF-920506DI) and Geneva County Board of Education (BPLIF-930219EL) ARE DENIED, and the application of Houston Academy (BPLIF-920214DM) IS GRANTED, subject to the condition that within 30 days of the release of this Order, Houston 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. 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