WPC 2MB%RK Z3|jTimes New RomanTimes New Roman Bold P6G;XP"i~'^:DPddDDDdp4D48dddddddddd88pppX|pDL|pp||D8D\dDXdXdXDdd88d8ddddDL8ddddX`(`lD4l\DDD4DDDDDDDDd8XXXXXX|X|X|X|XD8D8D8D8ddddddddddXdbdddpdXXXXXlX~|X|X|X|XdddldldD8DdDDDdplld|8|P|D|D|8dvddddDDDpLpLpLpl|T|8|\ddddddl|X|X|Xd|DdpL|Dd~4ddC$CWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNHxxH\dDXddddd8@d<@d<DDXXdDDxddzHxxHvppDXd<"dxtldpxxdHP LaserJet 4M ROOM 228 LPT1HPLA4MP0.PRSXj\  P6G;\ifXP2> <K3|jTimes New RomanTimes New Roman BoldTimes New Roman Italic P6G;\ vOXP"i~'^09CSS999S]+9+/SSSSSSSSSS//]]]Ixnnxg]xx9?xgxx]xn]gxxxxg9/9MS9ISISI9SS//S/SSSS9?/SSxSSIP!PZ9+ZM999+99999999S/xIxIxIxIxIlnIgIgIgIgI9/9/9/9/xSxSxSxSxSxSxSxSxSxSxIxSxRxSxSxS]SxIxIxInInInZnIxigIgIgIgIxSxSxSxZxSxZxS9/9S999Su]ZZxSg/gCg9g9g/xSbxSxSxSxSxn9n9n9]?]?]?]ZgFg/gMxSxSxSxSxSxSxxZgIgIgIxSg9xS]?g9xSi+SS88WuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxN/>/>/>/x]SSSSx]x]x]x]xSxSx]SSxSxSf]xSxSxSxIxIxWxIx{nInInInISSSWS]a?/?]?9?]]WW]n/nKn9nCn/x]xx]x]SSxxIxIxI]?]?]?]WnUn9nax]x]x]x]x]x]xxWnInInIx]n9x]]?n9xSz+SS8-8WuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxN8HH"&H>XHH8HB8>HH^HH>"".2",2,2,"222N2222"&22H22,006"6."""""""""""2H,H,H,H,H,XAB,>,>,>,>,""""H2H2H2H2H2H2H2H2H2H2H,H2H1H2H2H282H,H,H,B,B,B6B,H?>,>,>,>,H2H2H2H6H2H6H2""2"""2F866H2>>(>">">H2;H2H2H2H2XHB"B"B"8&8&8&86>*>>.H2H2H2H2H2H2^HH6>,>,>,H2>"H28&>"H2?22!!WFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxN$<<$.2",2222`2 LL2 LL2L"",,2d""Instructional Television Fixed Service (ITFS) station to operate on Channels C1C4 in Peru,  xZNebraska, and denied that of Southern for a new ITFS station on the same channels in Tecumseh,  X--Nebraska. JohnsonBrock Public Schools, 9 FCC Rcd 5300 (1994).  I. BACKGROUND  X-  {x2. In evaluating the applicants, pursuant to our ITFS comparative selection process,D# yOL!- xԍ In cases of mutually exclusive ITFS applications, where applicants are competing for the same or adjacent  xchannels in the same geographic area, each application is reviewed pursuant to our comparative process. This  x,procedure awards a maximum of twelve merit points based on five criteria deemed to be most relevant to predicting  {O#- x=the applicant best qualified to provide service for which the ITFS spectrum has been allocated. Instructional  {On$- xTelevision Fixed Service Second Report and Order in MM Docket No. 83523, (Second Report and Order), 101  xFCC 2d 49, 6572 (1985); 47 C.F.R.  74.913. Specifically, points are awarded to applicants based on localism,  xaccreditation, compliance with the fourchannel limitation, E and Fchannel group relocation, and specified levels of proposed ITFS programming. we  xawarded JohnsonBrock ten merits points and Southern only nine. JohnsonBrock was selected  xas the applicant with the highest score, with the critical distinction being the award to Johnson" ,))ZZ"ԫ xBrock of one merit point under the instructional programming criterion. Under this comparative  xfactor, one point is awarded for a proposed weekly schedule of at least 21 average hours per  xychannel of formal educational programming or of at least 41 average hours per channel of other  xITFS programming. Two points are awarded for a proposed weekly schedule of at least 41  x.average hours per channel of formal educational programming or at least 61 hours per channel  x=of ITFS programming where at least 21 of those hours are formal educational programming. 47 C.F.R.  74.913(b)(4).   ?x3. In its petition for reconsideration, Southern argues that the grant of JohnsonBrock's  xapplication was in error because the Commission failed to consider an amendment which it filed  xon July 20, 1993, the "B" cutoff date established for this proceeding. The July 20th amendment  x.increased the amount of proposed formal educational programming per channel per week from  xan average of 20 hours to 42 hours. In accordance with 47 C.F.R.  74.913(b)(4), Southern  xmaintains that it should have been awarded two programming merit points, which would have resulted in it having the higher score, with eleven merit points.   1x4. JohnsonBrock does not dispute that Southern's timely July 20th amendment was  xoverlooked. Instead, it argues that even if the July 20th amendment had been considered,  x<Southern still would not be entitled to comparative credit for its increased programming proposal,  xbecause Southern's excess channel capacity lease agreement with U.S.A. Wireless, Inc. (U.S.A.  xWireless) does not permit Southern to use the number of programming hours specified in its  xamendment. According to JohnsonBrock, the "ITFS Airtime Lease Agreement" that was  xsubmitted with Southern's application as initially filed provides, in Section 3.a.ii, for a total of  x168 hours weekly for Southern's use, including 20 hours for the lessor's initially scheduled ITFS  xprogramming and an additional 22 hours reserved for any expanded ITFS program needs.  xJohnsonBrock argues, however, that Southern's reserved air time of 22 hours is not available for  x{the applicant's immediate use, pointing to Section 3.a.iii of the agreement, which requires  xSouthern to provide "three months' advance notice of any revision to its schedule of the specific air time hours." 'II. DISCUSSION   x5. Initially, we agree with Southern that its July 20, 1993 amendment was inadvertently  xoverlooked. Under our mutually exclusive selection process, ITFS applicants are permitted to  X- xfile amendments to their applications upgrading their comparative status until the "B" cutoff date.   X- xSecond Report and Order, 101 FCC 2d at 74; see also Texas State Technical College, 8 FCC Rcd  x[664, 665, n.4 (1993). Thus, we find that Southern's amendment, which was filed on the "B" cut xoff date established in this proceeding, should have been considered and would have resulted in  x[the award to Southern of two programming merit points, bringing that applicant's point total to  xeleven. While JohnsonBrock now challenges such an award, we are not persuaded that Southern  x{would be unable to effectuate fully its revised programming proposal at the time its ITFS  x>facilities are constructed and service is commenced. The threemonth advance notification  xLprovision pertains only to proposed modifications of Southern's initial programming schedule,"<&,-(-(ZZ$"  X- x.and there is no indication that such schedule has already been presented to U.S.A. Wireless.) yOy- xԍ Under Section 3 of the lease agreement, Southern's initial programming schedule is not required to be proffered to the lessee until 30 days prior to the commencement of service.  xEven if it has, however, the advance notification requirement would not be sufficient to discredit  X- xSouthern's revised programming proposal. See Espanola Public Schools, 10 FCC Rcd 919  x(1995). Here, the lease agreement demonstrates a total of 168 hours of air time available to  x Southern, which supports the provision of an average of 42 hours per channel per week as  x\proposed in the July 20, 1993 amendment. Under these circumstances, we conclude that an  xaward of two programming merit points to Southern is proper and that Southern is the tentative selectee.   x6. As indicated, Southern has entered into an excess capacity lease with U.S.A. Wireless.  xHowever, the lease agreement does not conform in all respects with the Commission's  xrequirements for such leases. The initial lease term is for five years, renewable for an additional  xfiveyear period. In the event that the parties are unable to reach agreement on additional  x-renewal terms, the lease provides for the continued operation on the licensed channels by U.S.A.  xLWireless for a sixmonth period beyond the lease term. This provision is inconsistent with the  X - xMCommission's maximum term for excess capacity leases. See Rock Port RII Schools, 9 FCC  xRcd 7342 (1994). In addition, another lease provision restricts Southern from assigning its  xlicense to any prospective assignee or purchaser which does not agree to assume and be bound  xby all of the terms and conditions of the lease agreement, as if the purchaser was the original  xklessor. We believe this provision places an unreasonable impediment on the assignment or  X8- xjtransfer of the ITFS facility. See Central Cass Public School District, 10 FCC Rcd 3167 (1995).  xAlthough these provisions are inconsistent with our requirements for excess capacity leases, they  xneither reflect on the applicant's basic or comparative qualifications, nor preclude grant of the  X- xauthorization. See Van Vleck Independent School District, 7 FCC Rcd 7231, 7233 (1992).  xAccordingly, Southern's authorization will be conditioned upon conformation of the lease to Commission requirements.   2x7. No petitions to deny or informal objections have been filed against Southern's  xapplication, and we find Southern fully qualified to be an ITFS licensee. We also conclude that grant of Southern's application would serve the public interest, convenience and necessity.   x8. Accordingly, IT IS ORDERED, That Southern's petition for reconsideration IS  xGRANTED, that the grant of the application of JohnsonBrock Public Schools (BPLIF xL920501DF) IS SET ASIDE and the application IS DENIED, and that the application of Southern  xLPublic School District #1 (BPLIF930415DF) IS GRANTED, subject to the condition that within  x30 days from the release date of this Order, Southern Public School District #1 submits to the  xChief, Distribution Services Branch for approval, information demonstrating compliance with  xCommission requirements, including, if appropriate, an amended excess capacity lease agreement conforming in the manner discussed herein. "# ,-(-(ZZe""Ԍ  x9. IT IS FURTHER ORDERED, That the staff of the Mass Media Bureau shall send copies of this decision to the parties by certified mail, return receipt requested. x` `  hhFEDERAL COMMUNICATIONS COMMISSION x` `  hhWilliam F. Caton x` `  hhActing Secretary