WPC 2BJZ Courier3|x?x6X@`7X@HP LaserJet 4M (PCL)HPLA4MPC.PRSx  @\wvX@26 ZF D3|xHP LaserJet 4M (PCL)HPLA4MPC.PRSx  @\wvX@CourierTimes New RomanTimes New Roman BoldTimes New Roman Italic2L K KkKK "i~'^:DPddDDDdp4D48dddddddddd88pppX|pDL|pp||D8D\dDXdXdXDdd88d8ddddDL8ddddX`(`lD4l\DDD4DDDDDDDDd8XXXXXX|X|X|X|XD8D8D8D8ddddddddddXdbdddpdXXXXXlX~|X|X|X|XdddldldD8DdDDDdplld|8|P|D|D|8dvddddDDDpLpLpLpl|T|8|\ddddddl|X|X|Xd|DdpL|Dd~4ddC$CWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNHxxH\dDXddddd8@d<@d<DDXXdDDxddzHxxHvppDXd<"dxtldpxxd"i~'^:DpddȨDDDdp4D48ddddddddddDDpppd|Ld|pȐD8DtdDdpXpXDdp8Dp8pdppXLDpdddXP,PhD4htDDD4DDDDDDdDp8dddddȐXXXXXJ8J8J8J8pddddppppddpddddzpdddXXhXXXXXdddhdptL8LpLDLpphhp8ZDP8pppddƐXXXpLpLpLphfDtppppppȐhXXXpDppLDd4ddC6CWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNHxxHjdDddddddR>CxxxxxxxxxxCCjݭR[ӭ⭭RCRnxRjxjxjRxxCCxCxxxxR[Cxxxxjs0sR>nRRR>RRRRRRRRxCjjjjjӜjjjjjRCRCRCRCxxxxxxxxxxjxvxxxxjjjjjjjjjjxxxxxRCRxRRRxxC`RRCxxxxxӭRRR[[[eCnxxxxxx⭭jjjxRx[Rx>xxP+PWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNVVnxRjxxxxxCMxHMxHRRjjxRRxx듶VVȆRjxH"x𐋂x됐x"i~'^FRxxRRRx>R>CxxxxxxxxxxRRx⭞[x⭻𭭞RCRxRxjjRxCRCʆxj[Rxxxj`5`}R>}RRR>RRRRRRxRCxxxxxjjjjjYCYCYCYCxxxxxxxxxxxxxjj}jjjjjxxx}x[C[[R[†}}ClR`Cxxjjj[[[}zR}jjjR[Rx>xxPAPWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNVVxRxxxxxxHRxHRxHRRxxxRRxxVVȆRxxH"x𐎂x됐x2pK~ K \FZ"i~'^#)0<fx6X@`7X@=7jC:, Xj\  P6G;XP>7nC:,Xn4  pG;XAPF,Y!\  P6G;P?APF,4  pG;@W!@(#,9h@\  P6G;hP\A5hC:,-Xh*f9 xr G;XX<R&HHH,D,H6X@`7h@.<<}10+++]]]32673#654&&##332673!7676767654&##7!#6'&#z,%(#=bDx]% N(%5M T%"A0Sp>,+4?A"% 2 X-  #XP\  P6Q XP#$// MO&O, New ITFS (AChannels) Ariton, Elba, and Dothan, AL FCC 956 //$ $/ 47.C.F.R. Section 74.903 Interference /$ $/ 47 C.F.R. Section 74.932 Eligibility and Licensing Requirements /$ $/ 47 C.F.R. Section 74.913 Selection Procedure for Mutually Exclusive /$ $/ 47 C.F.R. Section 74.911 Processing of ITFS Station Application /$  X-$/ 47 C.F.R. Section 74.931 Purpose and permissible service /$  xx- X(#(# Xv-` `  hh,Vpp  X_- +J Before the w Federal Communications Commission Washington, DC 20554  X - ` `  hh,VppFCC 956  X -In re Applications of ) ` `  hh,V)  X - U BARBOUR COUNTY BOARD OFV )ppFile No. BPLIF920506DI  X- EDUCATION  hh,V)  Xy-Ariton, AL` ` hh,V) ` `  hh,V) ` `  hh,V)  X4- GENEVA COUNTY BOARD OF V ) pp File No. BPLIF930219EL  X- EDUCATION  hh,V)  X-Elba, AL ` `  hh,V )  X-` `  hh,V )  X-` `  hh,V ) pp    X- HOUSTON ACADEMY hh,V)pp  X-Dothan, AL` `  hh,V)ppFile No. BPLIF920402DM ` `  hh,V) ` `  hh,V)  Xe- For Construction Permit and LicenseV)  XN-in the Instructional Television FixedV)  X7-Service on Channels A1A4 hh,V)  X-  MEMORANDUM OPINION AND ORDER ă Adopted: January 3, 1995 Released: By the Commission: 1. The Commission has before it for consideration the abovecaptioned 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":&0*0*0*$"  X-license in the Instructional Television Fixed Service (ITFS) on Channels A1A4.8v12 Xy-#XP\  P6Q XP#эOn October 17, 1994, Geneva amended its application purportedly to remove its mutual exclusivity with Houston's application. Our review of Geneva's amended application, however, reveals that any grant of Houston's application would cause harmful interference to five of Geneva's seven receive sites. In accordance with 47 C.F.R. Section 74.903, the Geneva application will still be treated as mutually exclusive with the Houston application, as well as the application filed by Barbour. 8 The  X-applicants propose to serve the areas of Ariton, Elba and Dothan, Alabama, respectively.  X-#*BASIC ELIGIBILITY ă 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.  X-  MUTUALLY EXCLUSIVE SELECTION PROCEDURE ă 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  X|-provide the service for which the ITFS spectrum has been allocated. Instructional Television  Xe-Fixed Service Second Report and Order in MM Docket No. 83523, (Second Report and  XN-Order), 101 FCC 2d 49, 6572 (1985); 47 C.F.R. Section 74.913. First, four points are  X7-awarded to local applicants. K712 X$-#XP\  P6Q XP#э A "local" applicant is an institution or organization that is physically located in the  X%-community or metropolitan area where service is proposed. Second Report and Order, 101 FCC 2d at 59; 47 C.F.R. Section 74.932, Note 1. K Second, three points are awarded to applicants which are accredited schools, educational institutions, or school boards and school districts applying"  0*((\" 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  X-levels of proposed ITFS programming. 3v12 X4-#XP\  P6Q XP#э One point is awarded for a proposed weekly schedule of at least 21 average hours per channel of formal educational programming or of at least 41 average hours per channel of other ITFS programming. Two points are awarded for a proposed weekly schedule of at least 41 average hours per channel of formal educational programming or at least 61 hours per channel of ITFS programming where at least 21 of those hours are formal educational programming. 47 C.F.R. Section 74.913(b)(4).3 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:  X - 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.  X- 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.  X4- FourChannel 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 fourchannel limitation.  X- 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  Xe-of programming to be transmitted. See Hispanic Information and Telecommunications  XN-Network, Inc., 7 FCC Rcd 5924 (1992). "0*(("ԌGeneva'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.  X -  X -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.  X- 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 fourchannel 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 tiebreaker mechanism to determine the winning applicant. ` `    X- TIEBREAKER MECHANISM ă 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 tiebreaker mechanism detailed in  Xe-Instructional Television Fixed Service Third Report and Order in MM Docket No. 83523,  XN-("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  X-required certification or license._12 Xk!<ԍ#Xj\  P6G; XP# Only receive sites specified as of the "B" cutoff date may be used in determining  XT"-the number of students served.  Third Report and Order Recon., supra. Moreover, applicants serving students other than their own must have submitted letters, also by the "B" cutoff date, from these receive sites indicating an intention to use the proposed service. 47 C.F.R. Section  X%-74.911(c); Third Report and Order, 4 FCC Rcd at 4832. Specifically, those letters, to be signed by the administrator or authority responsible for curriculum planning, must indicate that the applicant's programming offerings have been viewed and that such programming will"&0*((&" be incorporated in the sites' curricula. Further, the letters should discuss the types and amounts of programming expected to be used and an indication of the extent to which representatives from the various sites will participate in the planning, scheduling, and production of the programming. 47 C.F.R. Section 74.932, Note 2. Each applicant then has 15 days to respond to any aspect of"40*((" 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.  XH- 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" cutoff 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  X -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 A1A4 and the applications filed by Barbour and Geneva will be denied.  X- w0OTHER MATTERS  X- 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  X7-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  X-Milwaukee Regional Medical Instructional Television Station, Inc., 2 FCC Rcd 1472, 1473 (1993). "!40*(( "Ԍ 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 (BPLIF920506DI) and Geneva County Board of Education (BPLIF930219EL) ARE DENIED, and the application of Houston Academy (BPLIF920214DM) 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. ` ` hh,FEDERAL COMMUNICATIONS COMMISSION ` ` hh,William F. Caton ` ` hh,Acting Secretary