******************************************************** NOTICE ******************************************************** This document was converted from WordPerfect to ASCII Text format. Content from the original version of the document such as headers, footers, footnotes, endnotes, graphics, and page numbers will not show up in this text version. All text attributes such as bold, italic, underlining, etc. from the original document will not show up in this text version. Features of the original document layout such as columns, tables, line and letter spacing, pagination, and margins will not be preserved in the text version. If you need the complete document, download the WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Before the Federal Communications Commission Washington, D.C. 20554 In re Applications of ) ) SHEKINAH NETWORK/THE EDUCA- )File No. BPLIF-920608DI TIONAL NETWORK CONSORTIUM ) San Luis Obispo, California ) ) SHEKINAH NETWORK/THE EDUCA- )File No. BPLIF-920608DJ TIONAL NETWORK CONSORTIUM ) San Luis Obispo, California ) ) SAN LUIS OBISPO COMMUNITY )File No. BPLIF-930416DV COLLEGE DISTRICT - CUESTA COLLEGE) San Luis Obispo, California ) ) PASO ROBLES SCHOOL DISTRICT )File No. BPLIF-930416DW San Luis Obispo, California ) ) SAN LUIS OBISPO COUNTY )File No. BPLIF-930416DX SUPERINTENDENT OF SCHOOLS ) San Luis Obispo, California ) ) For Construction Permits and Licenses) in the Instructional Television Fixed) Service on Channels A1-A4, B1-B4) and C1-C4 ) MEMORANDUM OPINION AND ORDER Adopted: December 13, 1996Released: December 16, 1996 1. The Mass Media Bureau, acting pursuant to delegated authority, has before it for consideration the above-captioned applications for construction permits and licenses in the Instructional Television Fixed Service (ITFS) to operate in San Luis Obispo, California. Shekinah Network/The Educational Network Consortium (Shekinah) and San Luis Obispo County Superintendent of Schools (SLOCSOS) have filed mutually exclusive applications for ITFS channels A1-A4. Shekinah and San Luis Obispo Community College District - Cuesta College (Cuesta) have filed mutually exclusive applications for ITFS channels B1-B4. Paso Robles School District (Paso Robles) has filed an application for ITFS channels C1-C4. Also before the Commission are petitions to deny the SLOCSOS and Cuesta applications, filed by Shekinah, and related pleadings. Because of potential adjacent channel interference and the proximity of the communities involved, the five applications must be considered as one mutually exclusive group. 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.  74.932(a)(1)-(5). All of the applicants are eligible to be ITFS licensees. Cuesta, Paso Robles and SLOCSOS are accredited by the Western Association of Schools and Colleges and propose to provide ITFS service to their own students. Shekinah is located in Atascadero, California, the area it intends to serve. Although Shekinah does not propose to serve its own students, it has shown that it will serve students at accredited institutions and has submitted the appropriate receive site letters. Accordingly, Shekinah, Cuesta, Paso Robles and SLOCSOS are qualified to be ITFS licensees. FOUR-CHANNEL WAIVER REQUEST 3. Section 74.902(d)(1) provides that "a licensee is limited to the assignment of no more than four channels for use in a single area of operation, all of which should be selected from the same [channel] Group . . ." Shekinah has filed applications for both the A and B channel groups and thus requests a waiver of the four-channel limitation. An applicant seeking waiver of Section 74.902(d) 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, the Commission has 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 on Reconsideration in MM 83-523, 59 RR 2d 1355, 1376 (1986). Among the factors we consider in acting on 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 Board of Regents, Eastern New Mexico University, 10 FCC Rcd 3162 (1995); School District No. 1 in the City and County of Denver, 3 FCC Rcd 6392, 6393 (1988). 4. Based upon our review of the showing proffered by Shekinah and the programming proposals set forth in its applications, we are persuaded that Shekinah has demonstrated that the requested channels are necessary to provide the wide range of educational and instructional programming proposed. As amended, the application for the A channel group reflects an average of 42 hours of ITFS programming per channel per week and Shekinah amended its excess capacity lease agreement to allow for this amount of formal educational programming. The application for the B channel group reflects an average of 24 hours of ITFS programming per channel per week. Shekinah proposes to use the A channel group to provide programming to students who are enrolled at Christian schools in San Luis Obispo County or home schooled, with a primary focus on programming at the high school and early college levels. Shekinah proposes to use the B channel group to provide cultural and basic remedial educational programming to prisons, and to provide medical educational programming to rural hospitals in the county. There is no repetition among the programs, and the programming on all eight channels will be presented simultaneously throughout most of the school day. This comprehensive schedule for providing programming directed to three distinctly varied groups of viewers would not be possible on only four channels. In view of the foregoing, we believe that grant of the waiver requested to Shekinah is warranted. MUTUALLY EXCLUSIVE SELECTION PROCEDURE 5. 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.  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. 6. Under this comparative selection process, the applicants are awarded points based on the following criteria: Localism. Shekinah, Cuesta, Paso Robles and SLOCSOS are each entitled to four points because they are physically located in the community they intend to serve. Accreditation. As we stated in paragraph 2 above, Cuesta, Paso Robles and SLOCSOS are accredited institutions proposing to serve their own students. Consequently, they are each entitled to three merit points. Although Shekinah proposes to serve accredited schools, a factor which satisfies its basic eligibility, Shekinah is not an accredited entity in its own right in the area proposed to be serve, the factor necessary to earn merit points under the accreditation criterion. Therefore, Shekinah is not entitled to any points by this measure. See Second Report and Order, 101 FCC 2d at 69; Ouachita Academy of Arts and Sciences, 9 FCC Rcd 7903 (1994); Broken Arrow Public School District #3, 9 FCC Rcd 5783 (1994). Four-Channel Limitation. Shekinah is applying for eight ITFS channels in the San Luis Obispo area. Accordingly, it is not entitled to any merit points. None of the other applicants is the licensee of, or has filed applications for, additional ITFS channels in the proposed service area. Therefore, Cuesta, Paso Robles, and SLOCSOS are each entitled to two points for remaining within the four- channel limitation. Instructional Programming. To assist us in our comparative determination under the instructional programming criterion, we require all ITFS applicants to detail their formal educational and other ITFS programming proposals in both an illustrative schedule and a programming grid. It is our long-standing practice that where the amounts and types of programming proposed in the schedule and the grid are inconsistent, we consider as correct, for comparative purposes, the amount and type which result in the least number of points to the applicant. See Hispanic Information and Telecommunications Network, Inc., 7 FCC Rcd 5924 (1992); Van Vleck Independent School District, 7 FCC Rcd 7231 (1992); Gonzales Independent School District, 8 FCC Rcd 404 (1993). In its application for the A channel group, Shekinah's illustrative schedule, as amended on July 20, 1993, proposes an average of 42 hours of formal ITFS programming per channel per week, as does its grid. Thus, Shekinah is entitled to two programming merit points for its A channel group application. In its application for the B channel group, Shekinah's illustrative schedule proposes an average of 24 hours of formal ITFS programming per channel per week, as does its grid. Thus, Shekinah is entitled to one programming merit point for its B-Group application. Cuesta, Paso Robles and SLOCSOS are not entitled to programming merit points. Cuesta and SLOCSOS propose an average of 87 hours of formal educational programming per channel per week in their illustrative schedules, while their grids propose an average of 12 hours and eight hours of formal educational programming, respectively. Similarly, Paso Robles proposes an average of 54 hours of formal educational and 33 hours of other ITFS programming per channel per week in its illustrative schedule, while its grid proposes an average of 8 hours of formal and 16 hours of other ITFS programming per channel per week. Accordingly, we will consider the programming set forth in the illustrative schedules for the purpose of determining merit points. Because the amount specified did not reach the threshold amount at which points are awarded, Cuesta, Paso Robles and SLOCSOS are not entitled to a programming merit point. E- and F-Channel Relocations. None of the applicants is the current licensee of an E- or F-channel seeking to relocate on other channels. Therefore, none is entitled to the one point awarded to such applicants. Total. In its application for the A channel group, Shekinah is entitled to four points for being local and two points for proposing at least 41 hours of formal educational programming per channel per week, for a total of six points. In its application for the B channel group, Shekinah is entitled to four points for being local and one point for proposing at least 21 hours of formal educational programming per channel per week, for a total of five points. SLOCSOS, Cuesta and Paso Robles are each entitled to four points for being local, three points for being accredited, and two points for remaining within the four-channel limitation, for a total of nine points. Since, in all instances, Shekinah is entitled to fewer points than the other three applicants, SLOCSOS, Cuesta and Paso Robles are the tentative selectees. PETITIONS TO DENY 7. As noted in paragraph 1, supra, Shekinah has filed petitions to deny the applications of SLOCSOS and Cuesta. Shekinah argues first that Valley Wireless TV (Valley), the operator of a wireless cable system at Bakersfield, California, is an undisclosed real-party-in-interest behind the applications of both SLOCSOS and Cuesta, and that SLOCSOS and Cuesta falsely indicated in Sections II and III of their applications that they had no such agreements. In their oppositions to Shekinah's petition to deny, SLOCSOS and Cuesta both submitted the declarations of their respective Superintendents stating, under penalty of perjury, that neither applicant has entered into an agreement with Valley. Based upon the record before us, we conclude that Shekinah has presented no credible evidence that Valley is a real-party-in-interest behind the applications of Cuesta and SLOCSOS. 8. Shekinah also asserts that SLOCSOS and Cuesta have failed to justify their need for the channels they have requested. We are also persuaded that SLOCSOS and Cuesta have demonstrated that the requested channels are necessary to provide the wide range of educational and instructional programming proposed. Both applicants will provide ITFS programming between the hours of 8:00 a.m. and 10:00 p.m., and will simultaneously use all four channels for substantial portions of the school day. We also reject Shekinah's contention that SLOCSOS and Cuesta are under common control and have thus exceeded the four-channel limitation without requesting a waiver. The applications were signed by two different individuals on behalf of two separate school districts, governed by two separate elected governing boards. Finally, with respect to Shekinah's assertion that Cuesta failed to demonstrate its eligibility based on its intent to serve its own enrolled students at off-campus locations, we note that Cuesta submitted a letter dated September 16, 1993, indicating that students attending classes at off-campus receive sites will receive credit toward their Associate in Arts or Associate in Science degrees. Thus, Cuesta is not required to provide any further documentation from its receive sites. Consequently, we find that Shekinah has not raised any substantial and material questions of fact with respect to the applications of SLOCSOS or Cuesta, and its petitions will be denied. OTHER MATTERS 9. We find SLOCSOS, Cuesta, and Paso Robles fully qualified to be ITFS licensees. There are no other objections pending against these applications. We therefore conclude that grant of these applications would serve the public interest, convenience, and necessity. 10. Accordingly, IT IS ORDERED, That the petitions to deny filed by Shekinah Network/The Educational Network Consortium against the applications of the San Luis Obispo County Superintendent of Schools and San Luis Obispo Community College District - Cuesta College ARE DENIED. IT IS FURTHER ORDERED, That the applications filed by Shekinah Network/The Educational Network Consortium (BPLIF-920608DJ and BPLIF-920608DI) ARE DENIED; and the applications filed by the San Luis Obispo County Superintendent of Schools (BPLIF-930416DX), San Luis Obispo Community College District - Cuesta College (BPLIF- 930416DV) and Paso Robles School District (BPLIF-930416DW) ARE GRANTED. FEDERAL COMMUNICATIONS COMMISSION Barbara A. Kreisman Chief, Video Services Division Mass Media Bureau