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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 ) ) NAPOLEON COMMUNITY SCHOOLS ) File No. BPLIF-930128DB Jackson, Michigan ) ) NORTH ADAMS-JEROME ) File No. BPLIF-920402DH PUBLIC SCHOOLS ) Albion, Michigan ) ) For Construction Permit and License) in the Instructional Television Fixed) Service on the D Channel Group ) 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 Napoleon Community Schools (Napoleon), for a construction permit and license in the Instructional Television Fixed Service (ITFS) on Channels D1-D4 at Jackson, Michigan, and North Adams-Jerome Public Schools (North Adams) for an ITFS construction permit and license on Channels D1-D3 at Albion, Michigan. The Bureau also has before it informal objections or petitions to deny filed against each of the applicants. 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). Both applicants are qualified to be ITFS licensees. Napoleon is accredited by the Michigan State Board of Education and is applying to provide ITFS service to its own students. North Adams is accredited by the North Central Association of Colleges and Schools and is also proposing to serve its own students. 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); 74 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 ITFS programming. Fifth, one point is awarded to applicants which are existing Channel E or F 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 Channel E or F 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. Napoleon is entitled to four points because it proposes to offer programming to its own students. North Adams is entitled to four points because it also proposes to offer programming to its own students. Accreditation. Napoleon is entitled to three points because it is accredited by the Michigan State Board of Education and intends to serve its own students. North Adams is entitled to three points because it is accredited by the North Central Association of Colleges and Schools and intends to serve its own students. Four-Channel Limitation. Neither applicant is the licensee of, or has filed applications for, additional ITFS channels in the proposed service area. Therefore, each applicant is 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. Napoleon's grid and illustrative schedule both propose an average of 41 hours of formal ITFS programming per channel per week. Thus, Napoleon is entitled to two programming merit points. In contrast, North Adam's grid and illustrative schedule each propose an average of 24.375 hours of formal ITFS programming per channel per week. Thus, North Adams is entitled to one 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 is entitled to the one point for such applicants. Total. Napoleon 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. North Adams is entitled to four points for being local, three points for being accredited, two points for observing the four-channel limitation and one point for proposing at least 21 hours of formal educational programming per channel, per week, for a total of ten points. Thus, the tentative selectee is Napoleon. INFORMAL OBJECTION 5. Because Napoleon is the tentative selectee in the comparative process, we must now consider the consolidated informal objection filed against it by North Adams. North Adams asserts that Napoleon's application should be dismissed because: (1) Napoleon improperly certified its application; and (2) the technical information submitted with the application contained numerous deficiencies and Napoleon's interference studies were defective and incomplete. 6. ITFS applicants are required to certify that all of the statements contained in the application and the attached exhibits are "true, complete and correct to the best of [their] knowledge and belief, and are made in good faith." Napoleon's Superintendent signed and dated the certification section of FCC Form 330 on June 22, 1992. However, Section V (Engineering Data) of Napoleon's application was not certified by Napoleon's consulting engineer until January 12, 1993. Thus, North Adams contends that Napoleon's application was improperly certified because the application certification pre-dates the technical portion of the application by six months and that the improper certification warrants dismissal of Napoleon's application. In response, Napoleon submits the affidavit of its consulting engineer, who explains that: I prepared the engineering for [Napoleon] in June of 1992. The application [of Napoleon was] submitted in January of 1993 in response to applications appearing on an "A" cut-off list. Although the engineering is signed and dated as of January 12, 1993, it was prepared in June of 1992 and remained unchanged until filing. Napoleon also states that it has no engineering expertise and relied upon its consulting engineer for preparing the technical materials and certifying their truthfulness and correctness. Based upon the record before us, we conclude that Napoleon has adequately explained the discrepancy between the two certification dates. And while we agree that it would have been preferable for Napoleon's Superintendent to have the certified technical exhibit before him when he certified the entire application, rather than an unsigned version, absent allegations or facts which suggest an intent to deceive the Commission on the part of Napoleon, no disqualifying issue exists. See, e.g., Broadcast Associates of Colorado, 104 FCC 2d 16 (1986); Video Marketing Network, Inc., 10 FCC Rcd 7611 (MMB 1995). 7. North Adams next asserts that Napoleon's application "contained such numerous and serious errors and omissions in [its] technical proposal" that it was patently not in accordance with the Commission's rules and must be dismissed pursuant to Section 73.3566 of the Commission's rules. North Adam also contends that the quantity and character of the defects in Napoleon's application demonstrates a pattern of carelessness or inattentiveness which adversely impacts upon its qualifications to become a licensee. We have reviewed the enumerated deficiencies and conclude that the errors and omissions, which have now been corrected by amendments to Napoleon's application, are minor in nature. In the past, the Commission has found that such minor engineering errors do not render an application defective and unacceptable for filing so long as "the information contained in the application is generally complete and the defects at issue did not hinder the processing of the application." See Timothy Roper, 4 FCC Rcd 4070, 4071 (1989); Cagal Cellular Communications Corp., 6 FCC Rcd 285, 286 (1991); see also Blackwell Consolidated Independent School District, 10 FCC Rcd 13153 (1995) (Excess capacity lease provisions which were contrary to Commission policy do not require dismissal of an application pursuant to Section 73.3566 because "[i]t is well established that an application may be acceptable for filing as substantially complete and yet not demonstrate the qualifications required for a grant."). Here, Napoleon responded to all of the questions set forth in its application and none of the errors and omissions identified by North Adams hindered the staff's processing of these applications. We also disagree that Napoleon's interference studies were so deficient as to warrant dismissal of its application. Our own engineering review of Napoleon's engineering materials reveals that its proposed facility is not predicted to cause harmful interference. However, there appears a potential need to upgrade the receive antennas of ITFS station WHR-735, Lansing, Michigan, for required protection. Accordingly, any interference caused to the licensed facilities of WHR-735 by the granted facilities of this construction permit will have to be eliminated by Napoleon through the use of antenna upgrades, shielding or other appropriate measures. All other minor technical discrepancies concerning interference analysis have been corrected in the minor engineering amendment. Accordingly, the informal objection will be denied. OTHER MATTERS 8. Napoleon proposes to lease its excess capacity for non-ITFS use, as permitted by 47 C.F.R.  74.931. The applicant has submitted a copy of its lease with Wireless Cable, Inc., which conforms in all respects with our requirements. 9. We find Napoleon fully qualified to be an ITFS licensee and conclude that grant of Napoleon's application would serve the public interest, convenience and necessity. 10. Accordingly, IT IS ORDERED, That the informal objection filed by North Adams- Jerome Public Schools IS DENIED; the application of North Adams-Jerome Public School (BPLIF- 920402DH) IS DENIED; and the application of Napoleon Community Schools (BPLIF-930128DB) IS GRANTED. FEDERAL COMMUNICATIONS COMMISSION Barbara A. Kreisman Chief, Video Services Division Mass Media Bureau