Sec. 74.913  Selection procedure for mutually exclusive ITFS 
          applications.

    (a) If timely filed ITFS applications are determined to be mutually 
exclusive, such applications will be processed and assessed points to 
determine the tentative selectee for the particular channels. The 
tentative selectee will be the applicant with the highest point total 
under the procedure set forth in this section, unless the provisions of 
paragraph (c) of this section apply, and will be awarded the requested 
channels if the Commission concludes that such an award will serve the 
public interest, convenience and necessity.
    (b) Each application will be awarded a predetermined number of 
points under the criteria listed:
    (1) Four points for applicants that are ``local,'' as defined in 
Sec. 74.932, n.1.
    (2) Three points for accredited schools, or their governing bodies 
applying within their jurisdiction;
    (3) Two points for applicants whose request, if granted, would 
result in the acquisition of four or fewer ITFS channels by that 
applicant within the particular area;
    (4) One point for a proposed weekly schedule of twenty-one or more 
average hours per channel per week of formal educational programming 
(Sec. 74.931(a)), or of forty-one or more average hours per channel per 
week of other ITFS programming; two points for forty-one or more average 
hours per channel per week of formal education programming, or for 
sixty-one or more hours per channel per week of ITFS programming where 
at least twenty-one of those hours are formal educational programming;
    (5) One point for an existing E or F channel licensee seeking to 
relocate and showing an established need for an expanded service that 
cannot be accommodated on its grandfathered E or F facilities. The 
applicant must submit a specific request and adequate supporting 
documentation.
    (c) If the best qualified (highest scoring) two or more applicants 
have the same point accumulation, they will be given thirty days from 
the date of release of such decision to notify the Commission of any 
agreement to divide the use of the channels. If no agreement is reached 
and advanced to the Commission within that time, the tentative selectee 
will then be determined through a tie-breaker mechanism.
    (d) The tie-breaker will operate as follows: each of the tied 
applicants will be directed to submit to the Commission a statement of 
the number of students at its proposed receive locations who are 
formally enrolled in classes for credit toward an academic degree or 
diploma, or a legally required certification or license. It must also 
demonstrate that this claim of students who would benefit from the 
proposed system is supported by the educational programs proposed in its 
application. Each applicant will serve it submission(s) on the other 
tied competing applicant(s), who will have an opportunity to respond to 
any aspect of the

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enrollment submissions. If any applicant's system would reach less than 
80% as many students as another applicant's would reach, the application 
which would result in service to the fewer number of students will be 
denied. The application(s) of any remaining applicant(s) will be 
granted. If more than one application is to be granted under this 
procedure, the channels or channel capacity will be divided evenly among 
the remaining applicants. At any time during this process, the 
applicants may advise the Commission that they are negotiating or have 
reached settlement for disposition of the contested facilities, and the 
Commission will withhold further comparative processing upon such 
notification.
    (1) Enrollment will be considered as of the last date of the filing 
window during which the applications were filed, as provided by 
Sec. 74.911(c). Enrollment figures should be the latest available from a 
regular term or session prior to that filing date, and must be taken 
from a statement or submission of data made by the subject school for 
some other official purpose or function, such as a mid-year or year-end 
fiscal report, or a budget proposal, and they must represent actual, not 
projected, student population. Each applicant must identify the 
source(s) from which its submitted enrollment figures are drawn.
    (2) All full- and part-time students formally enrolled in classes 
for credit toward an academic degree or diploma, or a legally required 
certification or license, at any school, campus, or other locations 
listed in the application as a receive site may be counted, except if an 
applicant's system would serve only students in a particular discipline 
(or disciplines) or at a particular grade level (or levels), only 
students in classes and programs within that discipline(s) or grade 
level(s) may be counted.
    (3) For off-campus sites, only students who can be shown to be 
recipients of formal ITFS educational material may be counted.
    (4) Applicants serving students other than their own count only 
students at schools, campuses, and other receive sites which have 
submitted a letter indicating their intention to use the proposed 
service. The validity of such expressions of intention will be judged 
pursuant to Sec. 74.932 of these rules. If several schools from the same 
school system are listed as receive sites, a single letter from an 
appropriate person representing the school board or system will be 
sufficient to demonstrate the intention to use the proposed service at 
each of these receive sites if each receive site's participation is 
specifically acknowledged.
    (5) A receive site not receiving interference protection may not be 
utilized by an applicant for tie-breaking purposes.

    Note 1: Entities entitled to the accreditation points will include 
umbrella organizations whose membership is composed of entities which 
are individually eligible for the points. Also, a state's department of 
education (or equivalent agency) would qualify, as well as any directly 
controlled arm of that department if its specific duties include that 
department's educational function.
    Note 2: Average hours per channel per week are determined by 
totaling the number of scheduled hours per week of programming between 
8:00 a.m and 10:00 p.m. Monday through Saturday in the subject category, 
and dividing that total by the number of channels.
    Note 3: Paragraph (b)(3) of this section does not apply to 
applications for modification of facilities other than the addition of 
channels.
    Note 4: For applications pending as of August 14, 1989, the 
enrollment which will be counted will be the most recent available up to 
August 22, 1989, for which receive sites are on file by that date.


[ 50 FR 26759 , June 28, 1985, as amended at  51 FR 9800 , Mar. 21, 1986;  51 FR 39536 , Oct. 29, 1986;  54 FR 29039 , July 11, 1989;  60 FR 20247 , Apr. 
25, 1995]