$// 47 C.F.R. Section 74.932 Eligibility and Licensing Requirements FCC 95-118 //$ $/ 47 C.F.R. Section 74.913 Selection Procedure for Mutually Excl /$ $/ 47 C.F.R. Section 74.931 Purpose and Permissible Service /$ $///FCC 95-118 3/20/95///$ ///newjob/// Before the Federal Communications Commission Washington, DC 20554 FCC 95-118 In re Applications of ) ) EASTERN KENTUCKY UNIVERSITY ) File No. BPLIF-920819DB Lexington, Kentucky ) ) ) KENTUCKY TECHNICAL ) File No. BPLIF-931230ER Lexington, Kentucky ) ) For Construction Permit and License ) in the Instructional Television Fixed ) Service on Channels C1-C4. ) MEMORANDUM OPINION AND ORDER Adopted: March 15, 1995 Released:March 23, 1995 By the Commission: 1. The Commission has before it for consideration the above-captioned mutually exclusive applications of Eastern Kentucky University (Eastern) and Kentucky Technical (Technical), each seeking a construction permit and license in the Instructional Television Fixed Service (ITFS) on Channels C1-C4 in the area of Lexington, Kentucky. 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 and Technical are accredited by the Southern Association of Colleges and Schools, and both are proposing to provide ITFS service to their own students. 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. Eastern and Technical are entitled to four points because each is an educational institution that proposes to serve the formal educational needs of its own students. Accreditation. Both applicants are entitled to three points because each is accredited by the Southern Association of Colleges and Schools. Four-Channel Limitation. Neither applicant 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." Eastern's illustrative schedule and programming grid propose an average of 41 hours of formal educational programming per channel per week. Thus, Eastern is entitled to two programming merit points. In contrast, Technical's illustrative schedule and programming grid propose an average of 41 hours of ITFS programming. However, only 25 of the proposed 41 hours of ITFS programming will be formal instructional programming. Consequently, Technical 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, neither 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. Technical is entitled to 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, for a total of ten points. Thus, the tentative selectee is Eastern. OTHER MATTERS 5. Eastern proposes to lease its excess capacity for non-ITFS use, as permitted by 47 C.F.R. Section 74.931. The applicant has submitted a copy of its lease with United States Wireless Cable, Inc., which conforms in all respects with our requirements. 6. 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 Eastern's application would serve the public interest, convenience and necessity. 7. Accordingly, IT IS ORDERED, That the application of Kentucky Technical (BPLIF- 931230ER) IS DENIED, and the application of Eastern Kentucky University (BPLIF- 920819DB) IS GRANTED. 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 F. Caton Acting Secretary