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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 ) ) POJOAQUE HIGH SCHOOL ) File No. BPLIF-920608DD Santa Fe, New Mexico ) ) HISPANIC INFORMATION ) File No. BPLIF-930107DA AND TELECOMMUNICATIONS ) NETWORK, INC. ) Santa Fe, New Mexico ) ) For Construction Permit and License) in the Instructional Television Fixed) Service on Channels A1-A4 ) ) POJOAQUE VALLEY SCHOOLS ) File No. BPLIF-920608DB Santa Fe, New Mexico ) ) SHEKINAH NETWORK ) File No. BPLIF-921015DA Santa Fe, New Mexico ) ) For Construction Permit and License) in the Instructional Television Fixed) Service on Channels C1-C4 ) 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 Pojoaque High School (PHS) and Hispanic Information and Telecommunications Network, Inc. (HITN), for a construction permit and license in the Instructional Television Fixed Service (ITFS) on Channels A1-A4 at Santa Fe, New Mexico, and the mutually exclusive applications of Pojoaque Valley Schools (PVS) and Shekinah Network (Shekinah) for an ITFS construction permit and license on Channels C1-C4 at Santa Fe. Also before the Bureau is a petition to deny the Pojoaque applications, filed by MultiMedia Development Corporation (MultiMedia), and related pleadings. PHS is a high school under the jurisdiction of PVS and both applicants have requested a waiver of our four-channel limitation rule, 47 C.F.R.  74.902(d). Accordingly, these four applications will be considered together. 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). All of the applicants are eligible to be ITFS licensees. Both PHS and PVS are accredited by the State of New Mexico Department of Education. PHS is applying to provide ITFS service to its own students and PVS is applying to provide ITFS service to students enrolled at schools within its jurisdiction. While HITN and Shekinah are not local educational institutions or governmental organizations, both applicants have submitted the requisite letters of intended use from accredited schools that will use their service and have documented the establishment of a local programming committee in the community. 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 . . ." 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, PHS is a high school under the control and supervision of PVS, whose Superintendent, Arthus R. Blea, signed both of the applications on behalf of the applicants. Since these applications were filed under the aegis of the same county public school system, the Pojoaque applicants request a waiver of the four-channel limitation. 4. 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). 5. We are persuaded that the Pojoaque applicants have 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 the Pojoaque applicants and reviewed the programming proposals set forth in their applications. As amended, the 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. PHS will provide programming for students in high school, with an emphasis on foreign language and advanced placement programming. PVS will provide programming for students at the elementary and middle school levels. 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 over twelve different grade levels would not be possible on only four channels. Moreover, the Pojoaque applicants state that the channels will also be used to provide formal educational programming to students who cannot physically attend classes or are home schooled. In view of the foregoing, we believe that grant of the waiver requested to the Pojoaque applicants 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. Second Report and Order, 101 FCC 2d at 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. 7. Under this comparative selection process, the applicants are awarded points based on the following criteria: Localism. In its petition to deny, MultiMedia asserts that the Pojoaque applicants falsely certified that they were local to Santa Fe, because Pojoaque, New Mexico is located over 25 miles north of Santa Fe and the Pojoaque applicants are not within the Santa Fe school district or established city limits. In response, the Pojoaque applicants state that Pojoaque is a small rural community and that Santa Fe, the closest metropolitan area, is less than 25 miles away. The Commission's rules define an institution or organization applying for an ITFS construction permit and license as "local" if it is physically located in the community, or metropolitan area, where service is proposed. Second Report and Order, 101 FCC 2d at 59; 47 C.F.R.  74.932, Note 1. This definition "recognizes that an applicant headquartered in a suburban community is, in fact, 'local' to the metropolitan area of the major urban center." School District No. 1, 3 FCC Rcd at 6394. Given the relative size and proximity of Pojoaque and Santa Fe, we find that Pojoaque is physically located in the Santa Fe metropolitan area. We also note that the Pojoaque applicants propose to serve schools throughout the Santa Fe metropolitan area. Accordingly, we conclude that PHS is entitled to four points because it is local to Santa Fe and proposes to offer formal educational programming to its own students. PVS is also entitled to four points because it is a school district serving the formal educational needs of schools within its jurisdiction. HITN and Shekinah are nonprofit organizations based in New York, New York and Atascadero, California, respectively, and propose to serve the Santa Fe area. Therefore, HITN and Shekinah are not entitled to points for being local applicants. See Argonia Unified School District #359, 8 FCC Rcd 4286 (1993). Accreditation. PHS and PVS are entitled to three points because each is accredited by the New Mexico State Board of Education. Although HITN and Shekinah propose to serve accredited schools, a factor which satisfies their basic eligibility, they are not accredited entities in their own right in the area proposed to be serve, the factor necessary to earn merit points under the accreditation criterion. Therefore, HITN and Shekinah are 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. HITN and Shekinah are neither the licensees of, nor have they filed applications for, additional ITFS channels in their proposed service areas. Therefore, HITN and Shekinah are each entitled to two points for remaining within the four-channel limitation. Because we are granting their request for a waiver of our four-channel limitation, PHS and PVS are not entitled to any merit points under this criterion. 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. The programming grid submitted with the Pojoaque applications as originally filed specified a total of four hours of formal educational programming per channel per week. The programming schedule specified an average of 24.375 hours of programming per channel per week, but none of the programs were designated as formal educational programming. On December 12, 1992, prior to the "B" cut-off date in this proceeding, the Pojoaque applicants amended their applications to correct the total hours of formal educational programming on the proposed stations. The December 12th amendments stated that "the total number of hours of formal educational programming on the proposed ITFS station will be 24.375 hours per week" and attached a revised programming grid showing an average of 24.375 hours of formal education programming per channel per week. The amendment also explained that the grid submitted with the application erroneously proposed four hours of formal educational programming, and that the Pojoaque applicants meant their actual formal educational proposal to be "the number indicated by [their] illustrative programming schedule, i.e., . . . an average of 24.375 hours per channel per week." While the Pojoaque applicants did not submit a new Page 8 to the applications, with an "F" typed next to the program titles, the text of the amendments indicated that the program schedule proposed formal educational programming. Based upon the foregoing, we conclude that PHS and PVS are entitled to one programming merit point each. See Blackwell Consolidated Independent School District, 1 FCC Rcd 13153 (1995). HITN's application states that "[a]ll 20 hours of programs scheduled during the Mon-Sat 8am-10pm period will be delivered to enrolled students for academic credit (i.e., they are "f" programs)." Since the amount specified does not reach the threshold amount at which points are awarded, HITN is not entitled to a programming point. Shekinah proposes an average of 27.125 hours of formal educational ITFS programming per channel per week in its illustrative schedule, and 26.5 hours of formal educational ITFS programming per channel per week in its program grid. Using the lower figure, Shekinah is entitled to one programming merit point. E- and F- Channel Group Relocation. None of the applicants 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. PHS 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 ITFS programming per channel per week, for a total of eight points. HITN is entitled to two points for observing the four-channel limitation. The applications of PHS and HITN are directly mutually exclusive. Because PHS has the greatest number of points, PHS is the tentative selectee and the application of HITN will be denied. PVS 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 ITFS programming per channel per week, for a total of eight points. Shekinah is entitled to two points for observing the four-channel limitation and one point for proposing at least 21 hours of formal educational ITFS programming per channel per week, for a total of three points. Thus, the tentative selectee for the C group channels is PVS and the application of Shekinah will be denied. OTHER MATTERS 8. PHS and PVS propose to lease their excess capacity for non-ITFS use, as permitted by 47 C.F.R.  74.931. The Pojoaque applicants previously submitted a copy of their leases, which have been found to conform to the Commission's requirements. 9. No further petitions to deny or informal objections have been filed against the applications of PHS and PVS, and we find PHS and PVS fully qualified to be ITFS licensees. We also conclude that grant of their applications would serve the public interest, convenience and necessity. 10. Accordingly, IT IS ORDERED, That the application of Hispanic Information and Telecommunications Network, Inc. (BPLIF-930107DA) IS DENIED, the application of Pojoaque High School (BPLIF-920608DD) IS GRANTED, the application of Shekinah Network (BPLIF- 921015DA) IS DENIED, and the application of Pojoaque Valley Schools (BPLIF-920608DB) IS GRANTED. FEDERAL COMMUNICATIONS COMMISSION Barbara A. Kreisman Chief, Video Services Division Mass Media Bureau