$// MO&O, New ITFS (G-Chan, Walcott, ND, Barnesville, MN) FCC 95-107 //$ $/ 74.913 Selection procedure for mutually exclusive ITFS applica /$ $/ 74.932 Eligibility and licensing requirements /$ $/ 74.931 Purpose and permissible service /$ ///newjob/// $///FCC 95-107,3/15/95///$ Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C. 20554 FCC 95-107 In re Applications of) ) ) CENTRAL CASS PUBLIC SCHOOL DISTRICT ) Fil No. BPLIF-921016DM Walcott, North Dakota ) ) INDEPENDENT SCHOOL DISTRICT 146 ) File No. BPLIF-931230DF Barnesville, Minnesota ) ) For Construction Permit and License ) in the Instructional Television ) Fixed Service on Channels G1, G2, ) G3, and G4. ) 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 Central Cass Public School District (Central) and Independent School District 146 (Independent), each seeking a construction permit and license in the Instructional Television Fixed Service (ITFS) on Channels G1-G4 in the areas of Walcott, North Dakota and Barnesville, Minnesota, 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 applicants are school districts that propose to provide formal educational programming to schools within and outside their jurisdictions. Central is accredited by the North Dakota Department of Public Instruction, and Independent is accredited by the Minnesota Department of Education. 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. Each applicant is entitled to four points for being local. Central and Independent are school districts that propose to serve the formal educational needs of students enrolled at schools within their jurisdictions. Accreditation. Each applicant is entitled to three points for being accredited. Central is accredited by the North Dakota Department of Public Instruction, whereas Independent is accredited by the Minnesota Department of Education. 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." Central's illustrative schedule and programming grid propose an average of 24.375 hours of formal educational programming per channel per week. Therefore, Central is entitled to one programming merit point. In contrast, Independent's illustrative schedule and grid propose an average of 42 hours of formal educational programming per channel per week. Therefore, Independent 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, no applicant is entitled to the one point for such applicants. Total. Central 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. Independent 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, the tentative selectee is Independent. OTHER MATTERS 5. Independent proposes to lease excess capacity for non-ITFS use, as permitted by Section 74.931. Independent has submitted a copy of the lease agreement it executed with Family Entertainment Network Partnership. The lease agreement, however, does not conform in all respects with the Commission's requirements for such agreements. Section 12(c)(iii) of the lease requires any propective assignee or purchaser of the ITFS station to assume and agree to be bound by all of the terms and conditions of the lease agreement, as if the purchaser were the original lessor. We believe that such a provision places an unreasonable impediment on the assignment or transfer of the ITFS facility. Second Report and Order, 101 FCC 2d at 90. Although this provision is inconsistent with our requirements for excess capacity leases, it neither reflects on the applicant's basic or comparative qualifications, nor precludes grant of an authorization. See Van Vleck Independent School District, 7 FCC Rcd 7231, 7233 (1992). Accordingly, Independent's authorization will be conditioned upon conformity of the lease to Commission requirements. 6. No petitions to deny or informal objections have been filed against Independent's application, and we find Independent fully qualified to be an ITFS licensee. We also conclude that grant of Independent's application would serve the public interest, convenience and necessity. 7. Accordingly, IT IS ORDERED, That the application of Central Cass Public School District (BPLIF-921016DM) IS DENIED, and the application of Independent School District 146 (BPLIF-931230DF) IS GRANTED, subject to the condition that within 30 days from the release date of this Order, Independent School District 146 submits to the Chief, Distribution Services Branch for approval, information demonstrating compliance with Commission requirements, including, if appropriate, an amended excess capacity lease 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 F. Caton Acting Secretary