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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 ) ) ARGONIA UNIFIED SCHOOL )File No. BPLIF-911227DT DISTRICT #359 ) Zenda, Kansas ) ) BUFFALO PUBLIC SCHOOLS )File No. BPLIF-920204DC Alva, Oklahoma ) ) For Construction Permit and License) in the Instructional Television Fixed) Service on Channels C1, C2, C3 and C4) MEMORANDUM OPINION AND ORDER Adopted: July 25, 1997Released: July 31, 1997 By the Commission: 1. The Commission has before it a petition for reconsideration filed by Buffalo Public Schools (BPS) seeking reconsideration of our action in which we granted the application of Argonia Unified School District #359 (Argonia) for a new Instructional Television Fixed Service (ITFS) station in Zenda, Kansas, and denied the mutually exclusive application of BPS for a new ITFS station in Alva, Oklahoma. Argonia Unified School District #359, 8 FCC Rcd 4286 (1993). I. BACKGROUND 2. In cases of mutually exclusive ITFS 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 service for which the ITFS spectrum has been allocated. Instructional Television Fixed Service -Second Report and Order in MM Docket No. 83-523, 101 FCC 2d 49, 65-72 (1985) (Second Report and Order); 47 C.F.R.  74.913. Specifically, points are awarded to applicants based on localism, accreditation, compliance with the four-channel limitation, E- and F-channel group relocation, and specified levels of ITFS programming. In evaluating the applications of Argonia and BPS pursuant to our ITFS comparative selection process, we awarded Argonia four points for being local, three points for being accredited, and two points for observing the four-channel limitation. We found that BPS was only entitled to two points for observing the four-channel limitation. Argonia, as the applicant with the highest merit point total, was selected over BPS. 3. BPS proposes to serve Alva, a community located approximately 50 miles from Buffalo, Oklahoma and outside the Buffalo school district. BPS contends that it is entitled to four points for being local and three points for being accredited, which would have resulted in a tie between BPS and Argonia. Specifically, BPS asserts that it is an educational institution accredited by the state of Oklahoma, and as such, is "local" throughout the state of Oklahoma. BPS also argues that because it is accredited by the State of Oklahoma, and proposes to serve accredited schools within the jurisdiction of Oklahoma and the consortium of schools to which it belongs, it is entitled to three merit points as an accredited entity. II. DISCUSSION 4. Localism. ITFS stations "are intended primarily to provide a formal educational and cultural development in aural and visual form, to students enrolled in accredited public and private schools, colleges and universities." 47 C.F.R.  74.931(a). The rules recognize our strong preference for locally based educational entities as ITFS licensees, based upon our finding that: Locally based educational entities have been convincingly demonstrated . . . to be the best authorities for evaluating their educational needs and the needs of others they propose to serve in their communities, for designing courses to suit those needs, and for scheduling courses during the school year. They best understand the educational needs and academic standards of their communities and are the most appropriate bodies to produce educational programming or select such programming from the sources available. . . . Locally based curriculum development, instructor involvement, supplementary (print) material development, student feed-back, and assistance to participating students all provide critical contributions to the most effective use of instruction via television. Second Report and Order, 101 FCC 2d at 56. Thus, under our comparative selection process for ITFS applicants, we award four points to local applicants. Id. at 59, 69; see also 47 C.F.R.  74.913, 74.932, Note 1. 5. Note 1 to Section 74.932 of the Commission's rules defines a "local" ITFS applicant as "an institution or organization that is physically located in the community, or metropolitan area, where service is proposed . . . ." BPS is located in Buffalo, Oklahoma, in the northwest corner of Oklahoma. In its application, BPS identified seven schools in three neighboring counties as receiving locations, each located between 30 and 70 miles from Buffalo. Thus, BPS is not physically located in the area it proposes to serve. BPS contends, however, that the Commission incorrectly interpreted the definition of a "local" entity when it refused to consider BPS as local for comparative purposes. In support, BPS states that Note 1 to Section 74.932 of the rules gives several examples of "local" entities and provides that "[a]n entity created by a state or local government for the purpose of serving formal educational needs will be considered 'local' throughout the area within the government's jurisdiction over which its authority is intended to extend." According to BPS, because it is an educational institution accredited by the State of Oklahoma, it is "local" throughout the entire state. Petitioner's interpretation, however, is contrary to the plain language of the rule, which states that a governmentally created entity, such as a school district, is only local within the area "over which its authority is intended to extend." BPS has presented no evidence that the State of Oklahoma has granted BPS jurisdiction or authority over the curriculum of schools located in neighboring school districts, which BPS has proposed to serve. Moreover, BPS's interpretation that it is "local" throughout the entire State of Oklahoma is also inconsistent with our basis for awarding comparative merit to "local" applicants -- that educational entities physically located in the community to be served are the best authorities for evaluating their educational needs and the needs of others they propose to serve in their communities. Thus, we affirm our conclusion that BPS was not "local" to Alva and was not entitled to an award of four merit points based on this criterion. 6. BPS also asserts, for the first time on reconsideration, that it should be accorded local status for comparative purposes because it is a member of a consortium of school districts in northwestern Oklahoma serving formal educational needs, and has first-hand knowledge of the educational needs of the Alva schools through its association with the consortium. We need not, and do not, reach Petitioner's argument that its membership in a consortium of school districts would support the award of merit points, for the following reasons. Where, as here, a petitioner relies on new facts on reconsideration, Section 1.106(c) of the Commission's rules requires that it show that the events occurred or circumstances changed since the last opportunity to present such matters; that the facts relied on were unknown until after the Commission acted, and could not have been learned through the exercise of ordinary diligence prior to the action; or that consideration of the facts relied on is required in the public interest. 47 C.F.R.  1.106(c)(1)-(3); see also RCA American Communications, Inc., 3 FCC Rcd 1184 (1988). BPS makes no attempt to demonstrate that any of these circumstances is present here, nor could it, given the fact that it was always within the power of BPS to inform the Commission of its membership in a consortium. We also note that when the Distribution Services Branch informed BPS, by letter dated February 5, 1993, that it was not a local applicant because it was not proposing to serve its own students, and would be required to perfect its eligibility by demonstrating the creation of a local program committee consisting of representatives of each of its proposed receive sites, BPS did not dispute the finding that it was not "local," and submitted the required information. Our procedural rules do not allow an applicant to "sit back and hope that a decision will be in its favor and then, when it isn't, parry with an offer of more evidence." Colorado Radio Corporation v. FCC, 118 F.2d 24, 26 (D.C. Cir. 1941). 7. Accreditation. BPS also asserts that it is entitled to three merit points because it is accredited by the Oklahoma Department of Education and proposes to serve accredited entities which are members of the same consortium of schools with which it is affiliated. While BPS proposed to serve accredited institutions, thus satisfying its basic eligibility requirement, it did not propose to serve its own students, the factor necessary for earning merit points under the accreditation criterion. See Second Report and Order, 101 FCC 2d at 69; Ouachita Academy of Arts and Sciences, 9 FCC Rcd 7903 (1994); Unified School District #511, 8 FCC Rcd 7060, 7061 (1993). Accordingly, BPS was not entitled to an award of merit points for being accredited. 8. In view of the foregoing, IT IS ORDERED, That the petition for reconsideration filed by Buffalo Public Schools IS DENIED. 9. IT IS FURTHER ORDERED, That the staff of the Mass Media Bureau shall send copies of this decision to the applicants by certified mail, return receipt requested. FEDERAL COMMUNICATIONS COMMISSION William F. Caton Acting Secretary