******************************************************** 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 ) ) UNIVERSITY SYSTEM OF THE ) File No. BPLIF-940317DJ ANA G. MENDEZ FOUNDATION ) Cayey, Puerto Rico ) ) CATHOLIC ARCHDIOCESE OF ) File No. BPLIF-941201DB SAN JUAN ) Cayey, Puerto Rico ) ) For Construction Permit and License) in the Instructional Television Fixed) Service on Channels A1-A4 ) MEMORANDUM OPINION AND ORDER Adopted: April 22, 1997 Released: April 25, 1997 1. The Mass Media Bureau, acting pursuant to delegated authority, has before it for consideration the above-captioned mutually exclusive applications of The University System of the Ana G. Mendez Foundation (Mendez) and the Catholic Archdiocese of San Juan (Archdiocese), each seeking a construction permit and license in the Instructional Television Fixed Service (ITFS) on Channels A1-A4 in Cayey, Puerto Rico. Also before the Bureau is a petition to deny filed by Mendez against the Archdiocese application, and related pleadings. 2. The Commission's rules provide that ITFS applications determined to be patently not in accordance with the Commission's rules, regulations or other requirements, unless accompanied by a waiver request, will be considered defective and will not be accepted for filing or if inadvertently accepted for filing will be dismissed. 47 C.F.R.  73.3566(a), 74.910. Section 73.3513 requires that applications be signed by the applicant. The Commission has repeatedly explained that an original signature on an application is critical because "[t]he original signature requirement provides assurance that the applicant has personally reviewed the application and can be held responsible for the truthfulness and accuracy of the statements therein." Mary Ann Salvatoriello, 6 FCC Rcd 4705, 4706 (1991). In its petition to deny, Mendez asserts, inter alia, that the Archdiocese application, which was filed on the "A" cut-off date, was untimely because it did not contain the applicant's original signature when first filed. Instead, the application was signed by counsel pursuant to Section 73.3513(b), which allows an applicant's attorney to sign the application "in case of the applicant's physical disability or his absence from the United States." 47 C.F.R.  73.3513. We agree with Mendez that the facsimile of the Archbishop's signature was not an original signature for the purposes of the Commission's rules, and that Section 73.1513(b) is inapplicable. However, because the Archdiocese requested a waiver of the original signature requirement with its application, included a facsimile signature with the application as originally filed, and promptly amended the application two days later to submit the original signature, we will accept the Archdiocese's post cut-off curative amendment. 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 the schools and establish local program committees in those communities. See47 C.F.R.  74.932(a)(1)-(5). Mendez is an educational foundation comprised of three universities, each of which is accredited by the Middle States Association of Colleges and Secondary Schools and by the Council of Higher Education. Mendez proposes to provide instructional programming to students at all three universities, as well as to students at the campuses of other educational institutions throughout Puerto Rico. Archdiocese is an accredited body located in San Juan, Puerto Rico, that is applying to provide instructional programming for students enrolled at schools within its jurisdiction. Accordingly, both applicants are qualified to be ITFS licensees. MUTUALLY EXCLUSIVE SELECTION PROCEDURE 3. 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 channel 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. Mendez is entitled to four points because it is a consortium whose constituent parts propose to serve their own students. Archdiocese is entitled to four points because it proposes to provide formal educational programming to students enrolled at schools located within its jurisdiction. Accreditation. Mendez is entitled to three points because the institutions that comprise the foundation are accredited by the Middle States Association of Colleges and Secondary Schools and by the Council of Higher Education, and the universities propose to serve their own students. Archdiocese is also entitled to three points because it proposes to serve students at accredited schools within its jurisdiction. See Second Report and Order, 101 FCC 2d at 69. 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." 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). Mendez's illustrative schedule and grid propose an average of 61.2 hours of ITFS programming per channel per week, 45.375 hours of which is to be formal educational programming. Consequently, Mendez is entitled to two programming points. Archdiocese's programming grid proposes an average of 39.7 hours of ITFS programming per channel per week, of which 21.75 hours are formal. However, its illustrative schedule proposes 18.75 hours of programming per channel per week, of which only 7.5 hours are designated as formal educational programming. Accordingly, we will consider the programming set forth in the illustrative schedule for the purpose of determining merit points. Because the amount specified did not reach the threshold amount at which points are awarded, Archdiocese is not entitled to a programming merit point. E- and F- Channel Group Relocation. Neither applicant is the current licensee of an E or F channel seeking to relocate to other channels. Therefore, neither applicant is entitled to the one merit point for such applicants. Total. Mendez 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. Archdiocese is entitled to four points for being local, three points for being accredited and two points for observing the four-channel limitation, for a total of nine points. Thus, the tentative selectee is Mendez. OTHER MATTERS 5. No petitions to deny or informal objections have been filed against Mendez's application, and we find Mendez fully qualified to be an ITFS licensee. We also conclude that grant of Mendez's application would serve the public interest, convenience and necessity. 6. Accordingly, IT IS ORDERED, That the application of the Catholic Archdiocese of San Juan (BPLIF-941201DB) IS DENIED, and the application of the University System of the Ana G. Mendez Foundation (BPLIF-940317DJ) IS GRANTED. FEDERAL COMMUNICATIONS COMMISSION Barbara A. Kreisman Chief, Video Services Division Mass Media Bureau