Sec. 74.990  Use of available instructional television fixed service 
          frequencies by wireless cable entities.

    (a) Notwithstanding the provisions Secs. 74.931 and 74.932 of this 
part, a wireless cable entity may be licensed on instructional 
television fixed service frequencies in areas where at least eight other 
instructional television fixed service channels remain available in the 
community for future ITFS use. Channels will be considered available for 
future ITFS use if there are no co-channel operators or applicants 
within 80.5 km (50 miles) of the transmitter site of the proposed 
wireless cable operation, and if the transmitter site remains available 
for use at reasonable terms by new ITFS applicants on those channels 
within three years of commencing operation.
    (b) No more than eight instructional television fixed service 
channels per community may be licensed to wireless cable entities.
    (c) To be licensed on instructional television fixed service 
channels, a wireless cable applicant must hold a conditional license, 
license or a lease, or must have filed an unopposed application for at 
least four MDS channels to be used in conjunction with the facilities 
proposed on the ITFS frequencies. An unopposed application is one that 
faces no competing application(s) or petition(s) to deny. Applicants 
will be required to confirm their unopposed status after the period for 
filing competing applications and petitions to deny has passed. If an 
MDS or MMDS application is opposed, the companion ITFS application will 
be returned.
    (d) To be licensed on instructional television fixed service 
channels, a wireless cable applicant must show

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that there are no multipoint distribution service or multichannel 
multipoint distribution service channels available for application, 
purchase or lease that could be used in lieu of the instructional 
television fixed service frequencies applied for. A wireless cable 
entity may apply for instructional television fixed service frequencies 
at the same time it applies for the related MDS or MMDS frequencies, but 
if that MDS or MMDS application is opposed by a timely filed mutually 
exclusive application or petition to deny, the application for ITFS 
facilities will be returned.
    (e) If an instructional television fixed service application and a 
wireless cable application for available instructional television fixed 
service facilities are mutually exclusive, as defined at Sec. 21.31(a) 
of this chapter, the instructional television fixed service application 
will be granted if the applicant is qualified. An instructional 
television fixed service applicant may not file an application mutually 
exclusive with a wireless cable application if there are other 
instructional television fixed service channels available for the 
proposed instructional television fixed service facility.
    (f) The interference protection provided wireless cable applicants 
and licensees of instructional television fixed service facilities will 
be that described in Sec. 21.902 of this chapter.

[ 56 FR 57820 , Nov. 14, 1991, as amended at  58 FR 44951 , Aug. 25, 1993]