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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 ) ) THE INFORMATION RESOURCE ) File No. BPLIF-951020SY FOUNDATION ) Lamar, Colorado ) ) WILEY CONSOLIDATED SCHOOLS ) File No. BPLIF-951020TR Wiley, Colorado ) ) For Construction Permit and License ) in the Instructional Television Fixed ) Service on Channels G1-G4 ) MEMORANDUM OPINION AND ORDER Adopted: May 16, 1997 Released: May 16, 1997 1. The Mass Media Bureau, acting pursuant to delegated authority, has before it for consideration the above-captioned mutually exclusive applications of The Information Resource Foundation (Foundation) and Wiley Consolidated Schools (Wiley), each seeking a construction permit and license in the Instructional Television Fixed Service (ITFS) on Channels G1-G4 in Lamar and Wiley, Colorado, respectively. 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). Foundation, a non-profit educational organization, has submitted a statement of its educational purpose and proposes to serve students at accredited institutions. Foundation has also submitted appropriate receive site letters from the accredited institutions. Wiley is accredited by the North Central Association of Colleges and Secondary Schools, as well as the Colorado Department of Education. Thus, 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 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. 4. Under this comparative selection process, the applicants are awarded points based on the following criteria: Localism. Foundation is entitled to no points because it is headquartered in Salt Lake City, Utah, and proposes to serve students in Lamar, Colorado. Wiley is entitled to four points because it is physically located in the community it intends to serve. Accreditation. Although Foundation proposes to serve accredited schools, a factor which satisfies its basic eligibility, Foundation 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, Foundation is not entitled to any points by this measure See Second Report and Order, 101 FCC 2d at 69; Ouachita Academy of Arts and Science, 9 FCC Rcd 7903 (1994); Broken Arrow Public School District #3, 9 FCC Rcd 5783 (1994). As stated in paragraph 2 above, Wiley is an accredited institution proposing to serve its own students. Consequently, it is entitled to three merit points. Four-Channel Limitation. Neither applicant is the licensee of, nor has filed an application for, additional ITFS channels in its proposed service area. Therefore, Foundation and Wiley are each entitled to two points for remaining within the four-channel limitation. Instructional Programming. To assist us in our comparative determination under the instructional programming criteria, 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 illustrative schedule and programming grid set forth in Foundation's application propose 21 hours of formal educational programming per channel per week. Wiley's illustrative schedule and programming grid propose an average of 22.625 hours of formal educational programming per channel per week. Consequently, Foundation and Wiley are each 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. Foundation is entitled to 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 three points. Wiley 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, Wiley is the tentative selectee. OTHER MATTERS 5. Wiley proposes to lease its excess capacity for non-ITFS use, as permitted by Section 74.931 of the Commission's Rules, and has submitted an executed copy of its lease agreement with Eagle Vision, L.L.C. The lease, however, does not entirely conform to the Commission's requirements. Specifically, it does not provide for the licensee's right to purchase the ITFS equipment at fair market value in the event the lease is terminated. We have consistently maintained that the licensee be permitted to purchase the ITFS equipment necessary to maintain its operation in the event of any action on the lessee's part which would terminate the lease arrangement. See Turner Independent School District, 8 FCC Rcd 3153, 3155 (1993). Although inconsistent with our requirements for excess capacity leases, the lack of such a provision in Wiley's lease neither reflects on the applicant's basic or comparative qualifications, nor precludes a grant of an authorization. See Highland Independent School District, 10 FCC Rcd 13646, 13647 (1995). Nevertheless, the authorization of Wiley will be conditioned upon the conformity of the lease to Commission requirements. See Henry County Board of Education, 10 FCC Rcd 8066, 8067 (1995). 6. No petitions to deny or informal objections have been filed against Wiley's application, and we find Wiley fully qualified to be an ITFS licensee. We also conclude that grant of Wiley's application would serve the public interest, convenience and necessity. 7. Accordingly, IT IS ORDERED, That the application of The Information Resource Foundation (BPLIF-951020SY) IS DENIED, and the application of Wiley Consolidated Schools (BPLIF-951020TR) IS GRANTED, subject to the condition that within 30 days from the release date of this Order, Wiley Consolidated Schools submits to the Chief, Distribution Services Branch for approval, information demonstrating compliance with Commission requirements, including if appropriate, an amended excess capacity lease conforming in the manner discussed herein. FEDERAL COMMUNICATIONS COMMISSION Barbara A. Kreisman Chief, Video Services Division Mass Media Bureau