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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 ) ) WALKER COUNTY BOARD OF ) EDUCATION ) File No. BPLIF-951020WY Fairmont, Tennessee ) ) SHEKINAH NETWORK ) File No. BPLIF-951020BP Chattanooga, Tennessee ) ) For Construction Permit and License ) in the Instructional Television Fixed ) Service on Channels G1-G4 ) MEMORANDUM OPINION AND ORDER Adopted: September 11, 1997 Released: September 12, 1997 1. The Mass Media Bureau, acting pursuant to delegated authority, has before it for consideration the above-captioned mutually exclusive applications of Walker County Board of Education (Walker) and Shekinah Network (Shekinah), each seeking a construction permit and license in the Instructional Television Fixed Service (ITFS) on Channels G1-G4 in Fairmont and Chattanooga, Tennessee, 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. See 47 C.F.R.  74.932(a)(1)-(5). Shekinah, a non-profit educational organization, has submitted a statement of its educational purpose and proposes to serve students at accredited institutions. It has also submitted appropriate receive site letters. Walker is accredited by the Southern Association of Colleges and Schools and proposes to serve its own students. Thus, both of the 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 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. Shekinah is entitled to no points because it is headquartered in Atascadero, California, and proposes to serve students in Chattanooga, Tennessee. Walker is entitled to four points because it is physically located in the community it intends to serve. Accreditation. Although Shekinah proposes to serve accredited schools, a factor which satisfies its basic eligibility, it 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, Shekinah 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, Walker is an accredited institution proposing to serve its own students. Consequently, Walker 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, each 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 program grid. Where the amounts and types of programming proposed in the schedule and in the grid are inconsistent, we will consider as correct, for comparative purposes, the amount and type which result in the least number of points to the applicant, so long as the excess capacity lease permits that level of programming to be transmitted. See Hispanic Information and Telecommunications Network, Inc., 7 FCC Rcd 5924 (1992); Van Vleck Independent School District, 7 FCC Rcd 723 (1992); Gonzales Independent School District, 8 FCC Rcd 404 (1993). The illustrative schedule and program grid set forth in Shekinah's application propose 41 hours of formal educational programming per channel per week. However, the lease agreement between Shekinah and Arden Cable Limited provides for only 40 hours of ITFS programming per channel per week. Consequently, Shekinah is entitled to only one program merit point. The illustrative schedule and program grid set forth in Walker's application propose 41 hours of formal educational programming per channel per week. Therefore, Walker is entitled to two program merit points. 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. Shekinah 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. Walker 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. Thus, Walker is the tentative selectee. OTHER MATTERS 5. Walker 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 Wireless One, Inc. However, one of its provisions does not comply with the Commission's requirements for such leases. Paragraph 10(f) affords U.S. Wireless the right to select a prospective assignee of the ITFS license, should Walker wish to submit its license to the Commission for voluntary cancellation. We believe this provision impermissibly intrudes upon what has traditionally been the right of a licensee. Second Report and Order, 101 FCC 2d at 90. This provision, however, does not reflect adversely on the applicant's basic or comparative qualifications or preclude grant of an authorization. Nevertheless, Walker's authorization will be conditioned upon conformity of the lease to Commission requirements. Milwaukee Regional Medical Instructional Television Station, Inc., 2 FCC Rcd 142 (1987). In addition, Paragraph 3(e) provides that all capacity made available by use of multiplexing techniques or other technology which allows the division of individual channels into two or more channels, will belong to Wireless One. In its Declaratory Ruling on the use of digital modulation by MDS and ITFS stations, FCC 96-304 (released July 10, 1996) (petitions for clarification and partial reconsideration pending), the Commission established interim digital transmission procedures to allow MDS and ITFS licenses to increase their channel capacity and service offerings through the use of channel compression techniques. The Commission stated that by adopting these interim procedures, it intended to "accelerate the development of wireless cable service [and] also seek to promote the use of digital technology, along with its attendant benefits, by the educational community." Id. at  2. The Commission also stated that it would defer consideration of any changes to the ITFS programming requirements, including recapture rights of ITFS licensees with respect to the increased capacity made available by digital compression, to a future rulemaking proceeding. Id. at  58. Until the Commission reaches a decision on those issues, we will defer our approval of lease provisions such as Paragraph 3 of the lease agreement. Accordingly, the lease is approved on the condition that Paragraph 3(e) be deleted until such time as we have completed our review as stated above. 6. No petitions to deny or informal objections have been filed against Walker's application, and we find Walker fully qualified to be an ITFS licensee. We also conclude that grant of Walker's application would serve the public interest, convenience and necessity. 7. Accordingly, IT IS ORDERED, That the application of Shekinah Network (BPLIF- 951020BP) IS DENIED, and the application of Walker County Board of Education (BPLIF- 951020WY) IS GRANTED. FEDERAL COMMUNICATIONS COMMISSION Barbara A. Kreisman Chief, Video Services Division Mass Media Bureau