**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+----+------------------------------+
| In the Matter of                 | *  | File No. BPET-19960621KE     |
|                                  | *) |                              |
| Oral Roberts University          | ** | Facility ID No. 82349        |
|                                  |    |                              |
| Community Television Educators,  | *  | File No. BPET-19960930KG     |
| Inc.                             | *) |                              |
|                                  | ** | Facility ID No. 84146        |
| For a Construction Permit for a  |    |                              |
| New                              | *  |                              |
|                                  | *) |                              |
| Noncommercial Educational        | ** |                              |
| Television                       |    |                              |
|                                  | *  |                              |
| Station on DTV Channel \*26,     | *) |                              |
| Tulsa, OK                        | ** |                              |
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**MEMORANDUM OPINION AND ORDER**

**Adopted: September 24, 2008 Released: November 19, 2008**

By the Commission: Commissioner Copps concurring and issuing a
statement**.**

1\. The Commission has before it for consideration the above-captioned
mutually exclusive applications of Oral Roberts University (ORU), and
Community Television Educators, Inc. (CTE), each seeking a construction
permit for a new noncommercial educational television station to operate
on DTV Channel \*26 at Tulsa, Oklahoma.[^1] Based on our analysis under
the comparative selection process discussed below, we select ORU as the
tentative selectee to operate on DTV Channel \*26 at Tulsa, Oklahoma.

**MUTUALLY EXCLUSIVE SELECTION PROCESS**[^2]

2\. In cases of mutually exclusive applications for new noncommercial
educational (NCE) television stations to operate on reserved channels,
each application is reviewed pursuant to the Commission's comparative
process. This procedure awards a maximum of seven merit points based on
four criteria deemed to be most relevant to predicting the applicant
best qualified to provide the service for which this spectrum has been
reserved.[^3] First, three points are awarded to applicants who have
been local and established for at least two years.[^4] Applicants with a
headquarters, campus, or 75 percent of board member residences within 25
miles of the reference coordinates of the community of license are
considered local,[^5] and governmental units are considered local within
their areas of jurisdiction.[^6] Second, two points are awarded for
local diversity of ownership if there is no overlap of the principal
community contour of the proposed station and any other station
attributable to the applicant, and the applicant\'s governing documents
include a provision to maintain that diversity in the future.[^7] Third,
two points will be awarded for certain state-wide networks providing
programming to accredited schools, which cannot claim a credit for local
diversity of ownership.[^8] Fourth, one point is awarded to an applicant
if its proposed area and population is 10% greater than the next best
proposal, or two points if 25% greater than the next best proposal.[^9]
The tentative selectee is the applicant with the highest score.

3\. Under this comparative selection process, the applicants are awarded
points based on the following criteria:

[Established Local Applicant]{.underline}. ORU alone certifies that it
has had a campus at its present location in Tulsa since the 1960s and
that its by-laws require that this localism will be maintained. Thus,
ORU is entitled to three points as an established local applicant.

[Diversity of Ownership]{.underline}. CTE alone certifies that the
principal community contour of its proposed station does not overlap the
principal community contour of any other television station in which any
party to the application has an attributable interest, that its
governing documents require that such diversity be maintained, and that
it has placed documentation of this diversity in a local public
inspection file and has submitted copies to the Commission. Accordingly,
CTE is entitled to two points for diversity of ownership.

[State-wide Networks]{.underline}. Neither applicant claims state-wide
network points under Section 73.7003(b)(3) of the Commission's rules.

[Technical Parameters]{.underline}. The applicants did not submit
technical information for the displacement applications specifying DTV
Channel \*26. Thus, no points will be awarded under this criterion.

4\. **Total**. ORU is entitled to three points as an established local
applicant. CTE is entitled to two points for diversity of ownership.
Thus, ORU is the tentative selectee.

**ACCEPTABILITY STUDY**

5\. Once we select a tentative selectee pursuant to the mutually
exclusive selection process, we consider whether the tentative
selectee's application has defects. If a tentative selectee's
application is found unacceptable, it is returned to the applicant, and
the applicant is given one opportunity to submit a curative amendment,
provided that the amendment is minor and that the application, as
amended, has the same number of qualitative points as originally
claimed, or more than the points claimed by the next highest
applicant.[^10]

6\. Noncommercial educational broadcast stations will be licensed only
to \"nonprofit educational organizations upon a showing that the
proposed stations will be used primarily to serve the educational needs
of the community; for the advancement of educational programs; and to
furnish a nonprofit and noncommercial television broadcast
service.\"[^11] ORU has demonstrated its compliance with these
requirements. We also find the application to be complete and in
compliance with the Commission's technical rules. Based upon the record
before us, we find ORU fully qualified to become the licensee of a new
noncommercial educational television station at Tulsa, Oklahoma.

7\. Accordingly, IT IS ORDERED, That Oral Roberts University is
TENTATIVELY SELECTED to be awarded a construction permit for a new
noncommercial educational DTV television station to operate on Channel
\*26 at Tulsa, Oklahoma. We direct the staff to issue a public notice
announcing this tentative selectee and establishing a deadline thirty
(30) days thereafter for the filing of petitions to deny. If, after the
petition to deny period has run, there is no substantial and material
question concerning the grantability of the tentative selectee's
application, we direct the staff TO DISMISS the mutually exclusive
application of Community Television Educators, Inc. (File No.
BPET-19960930KG) and TO GRANT the application of Oral Roberts University
(File No. BPET-19960621KE) CONDITIONED UPON that selectee's compliance
with Section 73.7005 of the Commission's Rules, 47 C.F.R. §73.7005,
which sets forth a four-year holding period for applicants that are
awarded points by use of a point system.

FEDERAL COMMUNICATIONS COMMISSION

Marlene H. Dortch

Secretary

**CONCURRING STATEMENT OF**

**COMMISSIONER MICHAEL J. COPPS**

 

**Re:      *Oral Roberts University, Community Television Educators,
Inc., for a Construction Permit for a New Noncommercial Educational
Television Station on DTV Channel \*26, Tulsa, OK****.*

 

While this item correctly applies the Commission's point system for
non-commercial (NCE) television stations, it also reveals a potential
concern. Where, as here, neither applicant is part of a state-wide
network or proposes a significantly larger coverage area than the other,
the point system comes down to two factors: (1) whether the applicant
has an "established presence" in the local community for at least two
years (three points), and (2) whether the applicant would contribute to
diversity in the market because it does not own another local television
station (two points).

In this case, Oral Roberts was awarded three points for its lengthy
community presence in Tulsa, but receives no diversity points because it
already owns another television station in the market. CTE, on the other
hand, was awarded two diversity points because it does not yet own a
television station in Tulsa, but gets no community presence points
because it has not had a local presence for at least two years. The end
result is that Oral Roberts was designated the tentative selectee, three
points to two.

In essence, our point system favors duopolies for established local
entities over giving a single voice to new entrants. Where the new
entrant is a distant organization with multiple stations across the
country, this may be the correct result. But where the new entrant is
truly a local organization that simply has not been in existence for at
least two years, it is not self-evident to me that granting a duopoly to
the established entity is always preferable. I draw no conclusions about
this particular case, but it may be to time to revisit the point system
to determine whether and how it should be changed going forward.

[^1]: The applicants are part of a group of applicants that filed for
    the subject construction permit, originally specifying Channel \*63
    at Tulsa. On November 30, 2004, we granted the joint request of the
    applicants to substitute DTV Channel \*26 for Channel \*63 at Tulsa.
    *Report & Order,* 19 FCC Rcd 71383 (2004). In that proceeding, the
    applicants were ordered to submit to the Commission within 45 days
    minor change applications for a construction permit (FCC Form 340)
    specifying DTV Channel \*26 in lieu of TV Channel \*63 at Tulsa.
    Only ORU and CTE filed such applications; the remaining applicants'
    applications have been dismissed.

[^2]: On March 22, 2001, the Bureau issued a Public Notice announcing a
    deadline of June 4, 2001, by which applicants in closed groups of
    noncommercial educational broadcast station applications must file
    either settlements/minor technical amendments to resolve application
    conflicts, or supplements to claim points under the newly-adopted
    NCE comparative standard discussed below. *See Public Notice*, 16
    FCC Rcd 6893 (2001). The Public Notice also established June 4,
    2001, as the date on which applicants\' maximum comparative
    qualifications would be generally established. The Bureau
    subsequently extended the deadline for settlements, engineering
    solutions and point supplements through July 19, 2001. *See Public
    Notice*, 16 FCC Rcd 10892 (2001). ORU and CTE filed point
    supplements by the July 19th deadline. They did not, however, amend
    their showings after the displacement applications specifying DTV
    Channel \*26 were filed to account for any resulting technical
    changes to their point proposals.

[^3]: *Report and Order, Comparative Standards for Noncommercial
    Educational Applicants*, 15 FCC Rcd 7386 (2000); *Memorandum Opinion
    and Order on Reconsideration*, 16 FCC Rcd 10549 (2001); *Memorandum
    Opinion and Second Order on Reconsideration*, 17 FCC Rcd 13132
    (2002); a*ff'd sub nom. American Family Association, Inc., et al. v.
    FCC & USA*, 365 F. 3d 1156 (D.C. Cir. 2004), *cert. denied,* 125 S.
    Ct. 634 (2004); *see also* 47 C.F.R. § 73.7003.

[^4]: *See* 47 C.F.R. §73.7003(b)(1). NCE organizations involved in
    pending closed group proceedings, such as the applicants here, are
    considered \"established\" if they have operated as local entities
    since June 4, 1999. 17 FCC Rcd at 13135-36.

[^5]: *See* 47 C.F.R. §73.7000 for definition of "local applicant." An
    applicant relying on local board residence to claim points as an
    established local applicant must demonstrate that its governing
    documents, *i.e.,* by-laws, require that such localism be maintained
    for at least four years of station operations. 15 FCC Rcd at
    7424-26.

[^6]: *See* 47 C.F.R. §73.7000.

[^7]: *See* 47 C.F.R. §73.7003(b)(2).

[^8]: *See* 47 C.F.R. §73.7003(b)(3).

[^9]: *See* 47 C.F.R. §73.7003(b)(4).

[^10]: 15 FCC Rcd at 7423.

[^11]: *See* 47 C.F.R. § 73.621(a).