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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 ) ) NORTH AMERICAN CATHOLIC ) File No. BPLIF-920513DB EDUCATIONAL PROGRAMMING ) FOUNDATION, INC. ) Henderson, Nevada ) ) CLARK COUNTY SCHOOL DISTRICT ) File No. BPLIF-931230HK Las Vegas, Nevada ) ) For Construction Permit and License) in the Instructional Television Fixed) Service on Channels A1-A4 ) MEMORANDUM OPINION AND ORDER Adopted: April 18, 1997 Released: April 21, 1997 1. The Mass Media Bureau, acting pursuant to delegated authority, has before it for consideration the above-captioned mutually exclusive applications of North American Catholic Educational Programming Foundation, Inc. (North American) and Clark County School District (Clark County), each seeking a construction permit and license in the Instructional Television Fixed Service (ITFS) on Channels A1-A4 in Henderson and Las Vegas, Nevada, respectively. Also before the Bureau is a petition to deny filed by North American against the Clark County application, alleging that Clark County has failed to justify its need for additional ITFS channels. 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. See47 C.F.R.  74.932(a)(1)-(5). Clark County is accredited by the Nevada State Legislature and proposes to provide ITFS service to its own students. North American, a non-profit educational organization, has submitted a statement of its educational purpose and proposes to serve students enrolled at accredited institutions. North American has also submitted the appropriate receive site letters from the accredited institutions. Thus, both of the applicants 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 . . ." Clark County is currently the licensee of ITFS stations KZH-33 (E group channels) and KZH-32 (A group channels) at Las Vegas and 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 Orderin 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 Clark County in its opposition to North American's petition to deny and in the programming proposal set forth in its application, we are persuaded that Clark County has demonstrated that the requested channels are necessary to provide the wide range of educational and instructional programming proposed. Clark County states that it is responsible for educating 145,000 students enrolled in 181 schools, and predicts that by the year 2003, its enrollment will increase to over 270,000 students, requiring the construction of 100 new schools. Clark County currently uses its ITFS stations, KZH-33 and KZH-33, to provide educational programming to students at over 150 schools, and contends that its present allocation is "wholly inadequate to satisfy its educational obligations." According to Clark County, it presently provides more than 45 hours of ITFS programming per channel per week. However, because of lack of channel capacity, it has been forced to cancel over 50 hours of scheduled programming in order to accommodate a staff development series designed to instruct teachers on techniques for teaching English as a second language, and to broadcast instructional ITFS programming on noncommercial educational television station KLVX(TV) during school hours. Clark County proposes to use the A group channels to provide 68 new ITFS programs, 52 of which are formal educational and 25 of which will be locally produced, and to shift some of the instructional programming from KLVX(TV). Clark County's comprehensive schedule for providing programming directed to almost 150,000 students enrolled in kindergarten through 12th grade would not be possible on the channels presently assigned to Clark County. Moreover, even with these additional channels, Clark County states that it needs additional channel capacity to take advantage of programming provided by Southern Nevada Vocational Technical Center and the University of Nevada, Las Vegas, to provide programming for development and training of its 15,000 employees, and to complete its locally- produced five year series to teach Spanish to children in grades one through five. In view of the foregoing, we believe that grant of the waiver requested to Clark County 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. Second Report and Order, 101 FCC 2d at 65-72; 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. Clark County is entitled to four points because it is physically located in the community it intends to serve. North American is entitled to no points because it is headquartered in Providence, Rhode Island and proposes to serve students in Las Vegas, Nevada. Accreditation. As we stated in paragraph 2 above, Clark County is an accredited institution proposing to serve its own students. Consequently, it is entitled to three merit points. Although North American proposes to serve accredited schools, a factor which satisfies its basic eligibility, North American is not an accredited entity in its own right in the area proposed to be served, the factor necessary to earn merit points under the accreditation criterion. Therefore, North American 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. North American is neither the licensee of, nor has it filed an application for, additional ITFS channels in its proposed service area. Therefore, it is entitled to two points for remaining within the four-channel limitation. Clark County is not entitled to any merit points. 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. North American's illustrative schedule and programming grid propose an average of 20 hours of formal educational programming per channel per week. Because the amount of programming specified fails to reach the threshold amount at which merit points are awarded, North American is not entitled to any programming merit points. In contrast, the illustrative schedule and programming grid set forth in Clark County's application propose over 21 hours of formal educational programming per channel per week. Consequently, Clark County is entitled to one programming merit point. E- and F-Channel Relocations. Neither applicant is the current licensee of an E- or F-channel seeking to relocate on other channels. Therefore, neither is entitled to the one point awarded to such applicants. Total. North American is entitled to a total of two points for observing the four-channel limitation. Clark County 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, Clark County is the tentative selectee. OTHER MATTERS 7. Clark County 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 ITFS facilities 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 Clark County's financial ability to construct and operate the proposed station. See Hispanic Information and Telecommunications Network, Inc., 7 FCC Rcd 5924, 5926-27 (1992). 8. We find Clark County fully qualified to be an ITFS licensee. There are no other objections pending against its application. We therefore conclude that grant of Clark County's application would serve the public interest, convenience, and necessity. 9. Accordingly, IT IS ORDERED, That the petition to deny filed by North American Catholic Educational Programming Foundation, Inc. IS DENIED. IT IS FURTHER ORDERED, That the application filed by North American (BPLIF-920513DB) IS DENIED; and the application filed by Clark County School District (BPLIF-931230HK) IS GRANTED. FEDERAL COMMUNICATIONS COMMISSION Barbara A. Kreisman Chief, Video Services Division Mass Media Bureau