WPC 2BJZ Courier3|jix6X@`7X@HP LaserJet 4M 712_1 LPT2tional)HL4MPCAD.PRSx  @\ vOX@2'6<F ZK3|jTimes New RomanTimes New Roman BoldTimes New Roman ItalicHP LaserJet 4M 712_1 LPT2tional)HL4MPCAD.PRSXj\  P6G;\ vOXP"i~'^:DPddDDDdp4D48dddddddddd88pppX|pDL|pp||D8D\dDXdXdXDdd88d8ddddDL8ddddX`(`lD4l\DDD4DDDDDDDDd8XXXXXX|X|X|X|XD8D8D8D8ddddddddddXdbdddpdXXXXXlX~|X|X|X|XdddldldD8DdDDDdplld|8|P|D|D|8dvddddDDDpLpLpLpl|T|8|\ddddddl|X|X|Xd|DdpL|Dd~4ddC$CWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNHxxH\dDXddddd8@d<@d<DDXXdDDxddzHxxHvppDXd<"dxtldpxxd2 KYKDK "i~'^09CSS999S]+9+/SSSSSSSSSS//]]]Ixnnxg]xx9?xgxx]xn]gxxxxg9/9MS9ISISI9SS//S/SSSS9?/SSxSSIP!PZ9+ZM999+99999999S/xIxIxIxIxIlnIgIgIgIgI9/9/9/9/xSxSxSxSxSxSxSxSxSxSxIxSxRxSxSxS]SxIxIxInInInZnIxigIgIgIgIxSxSxSxZxSxZxS9/9S999Su]ZZxSg/gCg9g9g/xSbxSxSxSxSxn9n9n9]?]?]?]ZgFg/gMxSxSxSxSxSxSxxZgIgIgIxSg9xS]?g9xSi+SS88WuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxN/>/>/>/x]SSSSx]x]x]x]xSxSx]SSxSxSf]xSxSxSxIxIxWxIx{nInInInISSSWS]a?/?]?9?]]WW]n/nKn9nCn/x]xx]x]SSxxIxIxI]?]?]?]WnUn9nax]x]x]x]x]x]xxWnInInIx]n9x]]?n9xSz+SS8-8WuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxN8HH"&H>XHH8HB8>HH^HH>"".2",2,2,"222N2222"&22H22,006"6."""""""""""2H,H,H,H,H,XAB,>,>,>,>,""""H2H2H2H2H2H2H2H2H2H2H,H2H1H2H2H282H,H,H,B,B,B6B,H?>,>,>,>,H2H2H2H6H2H6H2""2"""2F866H2>>(>">">H2;H2H2H2H2XHB"B"B"8&8&8&86>*>>.H2H2H2H2H2H2^HH6>,>,>,H2>"H28&>"H2?22!!WFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxN$<<$.2",2222`2 LL2 LL2L"",,2d""on Channels C1C4 at Santa Fe. Also before the Bureau is a petition to deny the Pojoaque  X$- xZapplications, filed by MultiMedia Development Corporation (MultiMedia), and related pleadings.  $ ` yO~&- xJԍ Section 309(d)(1) of the Communications Act of 1934, as amended, provides that any "party in interest" may  xfile a petition to deny an application. MultiMedia states that it currently operates an eleven channel wireless cable  x/system in Santa Fe and has entered into excess capacity lease agreements with both HITN and Shekinah. Accordingly, we conclude that MultiMedia has standing to file a petition to deny in this proceeding.  "$,))ZZ""  xPHS is a high school under the jurisdiction of PVS and both applicants have requested a waiver  xof our fourchannel limitation rule, 47 C.F.R.  74.902(d). Accordingly, these four applications will be considered together.  X-# BASIC ELIGIBILITY ă   x2. Before applying the mutually exclusive selection procedure to determine the number  xof merit points to be awarded to each applicant, we must first ascertain the basic eligibility of the  x-applicants. Educational institutions and governmental organizations that propose to serve either  x<their own enrolled students or students at accredited schools within their respective jurisdictions  xyestablish their eligibility by accreditation from the appropriate state department of education or  x[a recognized regional or national accrediting organization. Other ITFS applicants that propose  xto serve students at accredited schools outside of their respective jurisdictions must, to be eligible,  xsubmit letters of intended use from those schools and establish local program committees in those  X - xcommunities. See 47 C.F.R.  74.932(a)(1)(5). All of the applicants are eligible to be ITFS  x0licensees. Both PHS and PVS are accredited by the State of New Mexico Department of  xEducation. PHS is applying to provide ITFS service to its own students and PVS is applying to  xprovide ITFS service to students enrolled at schools within its jurisdiction. While HITN and  xLShekinah are not local educational institutions or governmental organizations, both applicants  xhave submitted the requisite letters of intended use from accredited schools that will use their  xservice and have documented the establishment of a local programming committee in the  X-community.e yO- xԍ In their opposition to the late filing of the Pojoaque applicants' June 10, 1994 submission in response to the  xistaff's request for additional information, MultiMedia and HITN assert that letters from the Pojoaque applicants'  xproposed receive sites do not satisfy the requirements of Section 74.932, Note 2. Because the Pojoaque applicants  x;propose to serve their own students, they were not required to submit letters of intended use. Accordingly, we need not address whether the receive site letters complied with Section 74.932.  X-  FOURCHANNEL WAIVER REQUEST ă   !x3. Section 74.902(d)(1) provides that "a licensee is limited to the assignment of no more  xthan four channels for use in a single area of operation, all of which should be selected from the  xsame [channel] Group . . ." In interpreting this provision, we have construed parties under  xKcommon control to be the same licensee, albeit the authorizations are held in the name of separate  x^parties. Here, PHS is a high school under the control and supervision of PVS, whose  xSuperintendent, Arthus R. Blea, signed both of the applications on behalf of the applicants. Since  x these applications were filed under the aegis of the same county public school system, the Pojoaque applicants request a waiver of the fourchannel limitation.   x4. An applicant seeking waiver of Section 74.902(d) must demonstrate how the additional  xlchannels will be used for traditional ITFS purposes and why present channel capacity is  X - xinsufficient to accommodate the additional needs. Instructional Television Fixed Service Report  X!- xand Order in MM Docket 83523, 98 FCC 2d 925, 933 (1984). In assessing such showings, the"!x,-(-(ZZ "  xjCommission has stated that waivers may be granted "only where the applicant can overcome a  X- xheavy burden of proof." Instructional Television Fixed Service Second Report and Order on  X- xReconsideration in MM 83523, 59 RR 2d 1355, 1376 (1986). Among the factors we consider  x^in acting on requests for waiver of the fourchannel limitation are the amount of ITFS  xprogramming that is being proposed on all of the channels involved, the simultaneous use of the  xchannels for a substantial portion of the day, the extent of repetition of the programming, and a  Xz- xdemonstrated need for the additional channels. See Board of Regents, Eastern New Mexico  Xe- xUniversity, 10 FCC Rcd 3162 (1995); School District No. 1 in the City and County of Denver, 3 FCC Rcd 6392, 6393 (1988).   x5. We are persuaded that the Pojoaque applicants have demonstrated that the requested  xchannels are necessary to provide the wide range of educational and instructional programming  xproposed. We have reviewed the showing proffered by the Pojoaque applicants and reviewed the  x[programming proposals set forth in their applications. As amended, the applications reflect an  X - xaverage of 40 hours of ITFS programming per channel per week. e yO?- x;ԍ The Pojoaque applicants initially requested a waiver of the fourchannel limitation on January 25, 1993, prior  xto the "A" cutoff date in this proceeding, and supplemented their waiver request on their own initiative on November  xi29, 1993, and at the request of the staff on June 10, 1994 and June 23, 1994. We disagree with MultiMedia that  xthe waiver requests are untimely. Under the traditional A/B cutoff approach used to process the abovecaptioned  xapplications, applicants triggering the "A" cutoff list, such as the Pojoaque applicants, are allowed to make major  x;changes to their proposal prior to the end of the "A" cutoff period. Applicants on the "A" and "B" cutoff list are  xpermitted to file minor amendments until the "B" cutoff date, but no comparative advantage will derive from  {O- xamendments filed after the "B" cutoff date.  Instructional Television Fixed Service Second Report and Order in  {O- xYMM Docket No. 83523 (Second Report and Order), 101 FCC 2d 49, 7275 (1985). We have consistently allowed  xITFS applicants to perfect their fourchannel waiver requests by post "B" cutoff amendments, because the  xsupplemental information is used only for the purpose of evaluating the fourchannel waiver request, an analysis that  {O- x;involves no comparison with competing applicants. See Board of Regents, Eastern New Mexico University, 10 FCC  {O- xiRcd at n.1;  Northern Arizona University Foundation, 7 FCC Rcd 5943, 5944, n.6 (1992); School District No. 1,  yOo- x3 FCC Rcd at 6393. In our comparative analysis, however, we will look to the Pojoaque applications as of the "B" cutoff date to determine merit points for programming. We further note that both  xschools amended their excess capacity leases with Ruralvision South, Inc. to require a minimum  xof 40 hours per channel per week to be devoted to formal educational programming. PHS will  xprovide programming for students in high school, with an emphasis on foreign language and  xadvanced placement programming. PVS will provide programming for students at the elementary  xjand middle school levels. There is no repetition among the programs, and the programming on  xall eight channels will be presented simultaneously throughout most of the school day. This  xxcomprehensive schedule for over twelve different grade levels would not be possible on only four  xKchannels. Moreover, the Pojoaque applicants state that the channels will also be used to provide  xyformal educational programming to students who cannot physically attend classes or are home  xZschooled. In view of the foregoing, we believe that grant of the waiver requested to the Pojoaque applicants is warranted.  X-  MUTUALLY EXCLUSIVE SELECTION PROCEDURE ă "P ,-(-(ZZ"Ԍ  x6. In cases of mutually exclusive applications, where applicants are competing for the  xsame or adjacent channels in the same geographic area, each application is reviewed pursuant to  xour comparative process. This procedure awards a maximum of twelve merit points based on  xfive criteria deemed to be most relevant to predicting the applicant best qualified to provide the  X- xservice for which the ITFS spectrum has been allocated. Second Report and Order, 101 FCC 2d  xat 6572 (1985); 47 C.F.R.  74.913. First, four points are awarded to local applicants. Second,  xthree points are awarded to applicants which are accredited schools, educational institutions, or  xzschool boards and school districts applying within their jurisdictions. Third, two points are  xawarded to applicants whose requests would result in the acquisition by these applicants of four  xor fewer ITFS channels within the particular area. Fourth, either one or two points may be  X - x.awarded to applicants for specified levels of proposed ITFS programming.Q e yO - x[ԍ One point is awarded for a proposed weekly schedule of at least 21 average hours per channel of formal  xeducational programming or of at least 41 average hours per channel of other ITFS programming. Two points are  xhawarded for a proposed weekly schedule of at least 41 average hours per channel of formal educational programming  xor at least 61 hours per channel of ITFS programming where at least 21 of those hours are formal educational programming. 47 C.F.R.  74.913(b)(4).Q Fifth, one point is  xawarded to applicants which are existing E or F channel licensees seeking to relocate on another  xITFS channel group, where such applicants show an established need for an expanded service that  xcannot be accommodated on their grandfathered E or F facilities. The tentative selectee is the applicant with the highest score.   x7. Under this comparative selection process, the applicants are awarded points based on the following criteria:  XM- xz Localism. In its petition to deny, MultiMedia asserts that the Pojoaque applicants falsely  x\certified that they were local to Santa Fe, because Pojoaque, New Mexico is located over 25  xLmiles north of Santa Fe and the Pojoaque applicants are not within the Santa Fe school district  xior established city limits. In response, the Pojoaque applicants state that Pojoaque is a small rural  X- xcommunity and that Santa Fe, the closest metropolitan area, is less than 25 miles away._xe yO-ԍ Pojoaque is approximately 15 miles north of Santa Fe._ The  x-Commission's rules define an institution or organization applying for an ITFS construction permit  xand license as "local" if it is physically located in the community, or metropolitan area, where  X- xservice is proposed. Second Report and Order, 101 FCC 2d at 59; 47 C.F.R.  74.932, Note 1.  xThis definition "recognizes that an applicant headquartered in a suburban community is, in fact,  X- xlocal to the metropolitan area of the major urban center."  School District No. 1, 3 FCC Rcd  x.at 6394. Given the relative size and proximity of Pojoaque and Santa Fe, we find that Pojoaque  xis physically located in the Santa Fe metropolitan area. We also note that the Pojoaque applicants  xpropose to serve schools throughout the Santa Fe metropolitan area. Accordingly, we conclude  xthat PHS is entitled to four points because it is local to Santa Fe and proposes to offer formal  xeducational programming to its own students. PVS is also entitled to four points because it is  xa school district serving the formal educational needs of schools within its jurisdiction. HITN  xand Shekinah are nonprofit organizations based in New York, New York and Atascadero,",-(-(ZZ"  xCalifornia, respectively, and propose to serve the Santa Fe area. Therefore, HITN and Shekinah  X- xare not entitled to points for being local applicants. See Argonia Unified School District #359, 8 FCC Rcd 4286 (1993).  X- x Accreditation. PHS and PVS are entitled to three points because each is accredited by the New  xMexico State Board of Education. Although HITN and Shekinah propose to serve accredited  x<schools, a factor which satisfies their basic eligibility, they are not accredited entities in their own  xright in the area proposed to be serve, the factor necessary to earn merit points under the  xkaccreditation criterion. Therefore, HITN and Shekinah are not entitled to any points by this  X3- x measure.  See Second Report and Order, 101 FCC 2d at 69; Ouachita Academy of Arts and  X - xkSciences, 9 FCC Rcd 7903 (1994); Broken Arrow Public School District #3, 9 FCC Rcd 5783 (1994).  X - x FourChannel Limitation. HITN and Shekinah are neither the licensees of, nor have they filed  xapplications for, additional ITFS channels in their proposed service areas. Therefore, HITN and  xShekinah are each entitled to two points for remaining within the fourchannel limitation.  xLBecause we are granting their request for a waiver of our fourchannel limitation, PHS and PVS are not entitled to any merit points under this criterion.  XQ- x  Instructional Programming. To assist us in our comparative determination under the  xinstructional programming criterion, we require all ITFS applicants to detail their formal  xeducational and other ITFS programming proposals in both an illustrative schedule and a  X - xKprogramming grid.sx e yO- xKԍ Question 5 of FCC Form 330 states, in pertinent part, that for each channel requested, the applicant must  xcomplete the chart on the following page to provide "a proposed weekly schedule of ITFS programming together  xwith a brief description of programs not recognizable by their titles." Applicants must also "[i]ndicate by "F" [for  xhformal] those programs which are delivered to enrolled students for academic credit." Question 6 sets out a program  x,grid which requires that the applicant summarize, among other things, both the "[t]otal hours [of] formal education  xprogramming for credit for enrolled students on [each] channel" and the "[t]otal hours [of] other ITFS service (see 47 C.F.R.  74.931(b)) on [each] channel." s The programming grid submitted with the Pojoaque applications as originally  xfiled specified a total of four hours of formal educational programming per channel per week.  xThe programming schedule specified an average of 24.375 hours of programming per channel per  xweek, but none of the programs were designated as formal educational programming. On  X- xDecember 12, 1992, prior to the "B" cutoff date in this proceeding,\e yOi - xԍ Under our mutually exclusive selection process, ITFS applicants are permitted to file amendments to their  {O1!- xapplications upgrading their comparative status until the "B" cutoff date. Second Report and Order, 101 FCC 2d  {O!-at 74; see also Texas State Technical College, 8 FCC Rcd 664, 665, n.4 (1993).  the Pojoaque applicants  xyamended their applications to correct the total hours of formal educational programming on the  xproposed stations. The December 12th amendments stated that "the total number of hours of  xformal educational programming on the proposed ITFS station will be 24.375 hours per week"  xKand attached a revised programming grid showing an average of 24.375 hours of formal education  xprogramming per channel per week. The amendment also explained that the grid submitted with"=, ,-(-(ZZ{"  xKthe application erroneously proposed four hours of formal educational programming, and that the  xPojoaque applicants meant their actual formal educational proposal to be "the number indicated  xby [their] illustrative programming schedule, i.e., . . . an average of 24.375 hours per channel per  xweek." While the Pojoaque applicants did not submit a new Page 8 to the applications, with an  x "F" typed next to the program titles, the text of the amendments indicated that the program  X- xschedule proposed formal educational programming.  Based upon the foregoing, we conclude that  Xv- xPHS and PVS are entitled to one programming merit point each.  See Blackwell Consolidated  Xa- xIndependent School District, 1 FCC Rcd 13153 (1995). HITN's application states that "[a]ll 20  xhours of programs scheduled during the MonSat 8am10pm period will be delivered to enrolled  xstudents for academic credit (i.e., they are "f" programs)." Since the amount specified does not  xreach the threshold amount at which points are awarded, HITN is not entitled to a programming  x[point. Shekinah proposes an average of 27.125 hours of formal educational ITFS programming  xper channel per week in its illustrative schedule, and 26.5 hours of formal educational ITFS  xprogramming per channel per week in its program grid. Using the lower figure, Shekinah is  X -entitled to one programming merit point. e yO;- xiԍ It is our longstanding practice that where the amounts and types of programming proposed in the schedule  xand the grid are inconsistent, we consider as correct, for comparative purposes, the amount and type which result  {O- xJin the least number of points to the applicant. See Hispanic Information and Telecommunications Network, Inc., 7  {O- xFCC Rcd 5924 (1992); Van Vleck Independent School District, 7 FCC Rcd 7231 (1992); Gonzales Independent  {O_-School District, 8 FCC Rcd 404 (1993).  X- xZ E and F Channel Group Relocation. None of the applicants is the current licensee of an E  xor F channel seeking to relocate to other channels. Therefore, no applicant is entitled to the one point for such applicants.  X8- x Total. PHS is entitled to four points for being local, three points for being accredited, and one  xpoint for proposing at least 21 hours of formal educational ITFS programming per channel per  x=week, for a total of eight points. HITN is entitled to two points for observing the fourchannel  xzlimitation. The applications of PHS and HITN are directly mutually exclusive. Because PHS  xhas the greatest number of points, PHS is the tentative selectee and the application of HITN will  x.be denied. PVS is entitled to four points for being local, three points for being accredited, and  x=one point for proposing at least 21 hours of formal educational ITFS programming per channel  xper week, for a total of eight points. Shekinah is entitled to two points for observing the four x/channel limitation and one point for proposing at least 21 hours of formal educational ITFS  xprogramming 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.  X$-w OTHER MATTERS ă   x8. PHS and PVS propose to lease their excess capacity for nonITFS use, as permitted  xzby 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. "!~,-(-(ZZ "Ԍ  #x9. No further petitions to deny or informal objections have been filed against the  xkapplications of PHS and PVS, and we find PHS and PVS fully qualified to be ITFS licensees.  xWe also conclude that grant of their applications would serve the public interest, convenience and necessity.   x10. Accordingly, IT IS ORDERED, That the application of Hispanic Information and  x[Telecommunications Network, Inc. (BPLIF930107DA) IS DENIED, the application of Pojoaque  xHigh School (BPLIF920608DD) IS GRANTED, the application of Shekinah Network (BPLIF x921015DA) IS DENIED, and the application of Pojoaque Valley Schools (BPLIF920608DB) IS GRANTED.  X - x` ` hhFEDERAL COMMUNICATIONS COMMISSION x` ` hhBarbara A. Kreisman x` ` hhChief, Video Services Division x` `  hhMass Media Bureau