$// MO&O, New ITFS (B-Channel, Inkster & Milton, ND) FCC 95-86 //$ $/ 74.913 Selection Procedure for Mutually Exclusive ITFS applica /$ $/ 74.932 Eligibility and Licensing Requirements /$ $/ 74.931 Purpose and permissible service /$ $///FCC 95-86 3-7-95///$ Before the FEDERAL COMMUNICATIONS COMMISSION Washington, DC 20554 FCC 95-86 In re Applications of ) ) ) MIDWAY PUBLIC SCHOOL DISTRICT #128 ) File No. BPLIF-921016DA Inkster, North Dakota ) ) PARK RIVER PUBLIC SCHOOL DISTRICT #78 ) File No. BPLIF-931227HW Milton, North Dakota ) ) For Construction Permit and License ) in the Instructional ) Television Fixed Service on ) Channels B1, B2, B3, and B4. ) MEMORANDUM OPINION AND ORDER Adopted: February 28, 1995 Released: March 7, 1995 By the Commission: 1. The Commission has before it for consideration the above- captioned mutually exclusive applications of Midway Public School District #128 (Midway) and Park River Public School District #78 (Park), each seeking a construction permit and license in the Instructional Television Fixed Service (ITFS) on Channels B1-B4 in the areas of Inkster and Milton, North Dakota, 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. Both are school districts that are accredited by the North Dakota Department of Public Instruction and that propose to serve the formal educational needs of students enrolled in schools located within and outside their jurisdictions. 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. Both applicants are entitled to four points because they are school districts that propose to serve the formal educational needs of students enrolled at schools within their jurisdictions. Accreditation. Each applicant, accredited by the North Dakota Department of Public Instruction, is entitled to three points for accreditation. Four-Channel Limitation. Neither applicant is the licensee of, or has filed applications for, additional ITFS channels in its proposed service area. Consequently, each 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). Midway's illustrative schedule and grid propose an average of 24.375 hours of ITFS programming per channel per week. The grid proposes all formal educational programming. However, the schedule does not indicate how many hours are devoted to formal educational programming, as required by Section IV, Question 5 of the application. Accordingly, we will consider this programming as nonformal for the purpose of determining merit points. See Platte Valley School District RE-7, 9 Fcc Rcd 3164 (1994). Because of the inconsistency involving the types of programming proposed, Midway is entitled to no programming merit points. Park's illustrative schedule and grid propose an average of 42 hours of formal educational programming per channel per week. Therefore, Park 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. Consequently, neither is entitled to the one point for such applicants. Total. Midway is 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. Park 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. Thus, Park is the tentative selectee. OTHER MATTERS 5. Park proposes to lease its excess capacity for non-ITFS use as permitted by 47 C.F.R. Section 74.931. Park has submitted a copy of its lease with Control Technology, Inc. (CTI). Generally, the parties to an excess capacity lease agreement are identified as the lessor and lessee. The ITFS licensee is the lessor, whereas the wireless cable operator is the lessee. The lease before us identifies Park as the lessee and CTI as the lessor. The mislabeling of the parties would not be a problem if that occurred consistently throughout the lease. However, this is not the case. Consequently, we are not able to review the lease to determine if it conforms in all respects to the Commission's requirements. However, this does not reflect on the applicant's basic or comparative qualifications, nor preclude grant of an authorization. Accord. Washington Public School, 8 FCC Rcd 3165 (1993). Accordingly, Park must submit for review a lease agreement which correctly and consistently identifies the parties and their respective obligations. 6. No petitions to deny or informal objections have been filed against Park's application, and we find Park fully qualified to be an ITFS licensee. We also conclude that grant of Park's application would serve the public interest, convenience and necessity. 7. Accordingly, IT IS ORDERED, That the application of Midway Public School District #128 (BPLIF-921016DA) IS DENIED, and the application of Park River Public School District #78 (BPLIF-931227HW) IS GRANTED subject to the condition that within 30 days of the release of this Order, Park 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