$// 47 C.F.R. Section 74.932 Eligibility and Licensing Requirements FCC 95-104//$ $/ 47 C.F.R. Section 74.902 Frequency Assignments /$ $/ 47 C.F.R. Section 74.913 Selection procedure for mutually excl /$ $/ 47 C.F.R. Section 74.931 Purpose and permissible service /$ ///newjob/// $///FCC 95-104,3/15/95///$ Before the Federal Communications Commission Washington, DC 20554 FCC 95-104 In re Applications of ) ) BOARD OF REGENTS, ) EASTERN NEW MEXICO UNIVERSITY ) File No. BPLIF-921230DB Caprock, New Mexico ) ) ) DEXTER HIGH SCHOOL ) File No. BPLIF-920501DR Greenfield, New Mexico) ) For Construction Permit and License ) in the Instructional Television Fixed ) Service on Channels A1-A4. ) MEMORANDUM OPINION AND ORDER Adopted: March 9, 1995 Released: March 20, 1995 By the Commission: 1. The Commission has before it for consideration the above-captioned mutually exclusive applications of Board of Regents, Eastern New Mexico University (Eastern) and Dexter High School (Dexter High), each seeking a construction permit and license in the Instructional Television Fixed Service (ITFS) on Channels A1-A4 in the areas of Caprock and Greenfield, New Mexico, 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. Eastern is accredited by the North Central Association and is proposing to serve the formal educational needs of its own students. Dexter High is accredited by the State of New Mexico, Department of Education and it too is proposing to provide ITFS service to its own students. FOUR-CHANNEL WAIVER REQUEST 3. Section 74.902(d) of the Commission's Rules limits the assignment of more than four ITFS channels to one licensee for use in a single area of operation. In interpreting this provision, we have construed parties under common control to be the same licensee, albeit the authorizations are held in the name of separate parties. Here, Dexter High is a high school under the control and supervision of Dexter Consolidated Schools, whose Superintendent, Jimmy L. Derrick, signed the Dexter High application on behalf of that applicant. Mr. Derrick also signed and submitted on behalf of Dexter Junior High School an ITFS application for construction and operation on the C-channel group in Greenfield, New Mexico (BPLIF-920501DB). The latter application was not mutually exclusive with any other ITFS application and, upon finding Dexter Junior High School fully qualified to be an ITFS licensee, BPLIF-920501DB was granted by the staff on November 18, 1994. Since these applications were filed under the aegis of the same county public school system, Dexter High requests a waiver of the four-channel limitation. 4. An applicant seeking waiver of Section 74.902(d) of the Commission's Rules must demonstrate how the additional channels will be used for traditional ITFS purposes and why present channel capacity is insufficient to accommodate the additional needs. Instructional Television Fixed Service - Report and Order in MM Docket 83-523, 98 FCC 2d 925, 933 (1984). In assessing such showings, we stated that waivers may be granted "only where the applicant can overcome a heavy burden of proof." Instructional Television Fixed Service - Second Report and Order in MM Docket 83-523 Reconsideration Reconsidered, 59 RR2d 1355, 1376, (1986). Among the factors we consider in our ad hoc approach to requests for waiver of the four-channel limitation, are the amount of ITFS programming that is being proposed on all of the channels involved, the simultaneous use of the channels for a substantial portion of the day, the extent of repetition of the programming and a demonstrated need for the additional channels. See School District No. 1 in the City and County of Denver, 3 FCC Rcd 6392, 6393 (1988). 5. We are persuaded that Dexter High has demonstrated that the requested channels are necessary to provide the wide range of educational and instructional programming proposed. We have reviewed the showing proffered by Dexter High, as well as the programming proposal set forth in the application filed by Dexter Junior High School. As amended, their applications reflect an average of 40 hours of ITFS programming per channel per week. We further note that both schools amended their excess capacity leases with Ruralvision South, Inc. to require a minimum of 40 hours per channel per week to be devoted to formal educational programming. Each channel is devoted to a different grade level. Dexter Junior High school will provide programming for children in elementary through middle school, and Dexter High's channels will provide programming for students in high school. There is no repetition among the programs, and the programming on all eight channels will be presented simultaneously between 8:00 a.m. and 4:30 p.m., Monday through Saturday. This comprehensive schedule for over eight different grade levels would not be possible on only four channels. Moreover, Dexter Consolidated Schools states that its school system is located in an economically challenged rural area that could not afford any advanced educational instruction without the assistance of ITFS. In view of the foregoing, we believe that grant of the waiver requested by Dexter High is warranted. MUTUALLY EXCLUSIVE SELECTION PROCEDURE 6. 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. 7. Under this comparative selection process, the applicants are awarded points based on the following criteria: Localism. Eastern is entitled to four points because it is an educational institution that proposes to serve the formal education needs of its own students. Dexter High is also entitled to four points because it is a high school that proposes to offer programming to its own students. Accreditation. Both applicants are entitled to three points under this criterion. Eastern is accredited by the North Central Association, whereas Dexter High is accredited by the State of New Mexico, Department of Education. Four-Channel Limitation. Eastern is neither the licensee of, nor has filed an application for, additional ITFS channels in its proposed service area. Therefore, Eastern is entitled to two points for remaining within the four-channel limitation. Dexter Junior High School has received a construction permit/license authorization for an ITFS facility to operate on Channels C1-C4 in the same area as Dexter High's proposed ITFS facility which, if granted, would result in eight ITFS channels being under the control of the same county public school system. Accordingly, Dexter High is not entitled to any merit points under this criterion. See Second Report and Order, 101 FCC 2d at 69-70; and Northern Arizona University Foundation, 7 FCC Rcd 5943 (1992). Instructional Programming. ITFS applicants detail their formal educational and other ITFS programming proposals in both a program schedule and a programming "grid." Eastern's illustrative schedule and programming grid propose an average of 69.5 hours of formal educational programming per channel per week. Thus, Eastern is entitled to two programming merit points. In contrast, the illustrative schedule and programming grid initially set forth in Dexter High's application propose an average of 24.375 hours of formal educational programming. Consequently, Dexter High is only entitled to one programming 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. Therefore, no applicant is entitled to the one point for such applicants. Total. Eastern 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. Dexter High is entitled to four points for being local, three points for being accredited, and one point for proposing at least 21 hours of formal educational programming per channel per week, for a total of eight points. Thus, the tentative selectee is Eastern. OTHER MATTERS 8. Eastern does not propose to lease its excess capacity for non-ITFS use, as permitted by Section 74.931. Rather, it intends to finance the construction and operation of its station by reliance upon a grant from the National Telecommunications and Information Administration (NTIA). The certification of reliance on NTIA funding in response to Question 1(a) of Section III, FCC Form 330, establishes "reasonable assurance" of Eastern's financial ability to construct and operate the proposed station. Accordingly, our concern will be directed to focusing on whether the grant relied upon actually has been made. See Hispanic Information and Telecommunications Network, Inc., 7 FCC Rcd 5924, 5926-27. (1992). 9. No petitions to deny or informal objections have been filed against Eastern's application, and we find Eastern fully qualified to be an ITFS licensee. We also conclude that grant of the Eastern's application would serve the public interest, convenience and necessity. 10. Accordingly, IT IS ORDERED, That the request for a waiver of the four- channel limitation filed by Dexter High IS GRANTED, that the application of Dexter High School (BPLIF-920501DR) IS DENIED, and the application of Board of Regents, Eastern New Mexico University (BPLIF-921230DB) IS GRANTED, subject to the condition that it submit satisfactory proof to the Commission within a reasonable period of time that it has received the proposed funding from the National Telecommunications and Information Administration. 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