Sec.  74.931   Purpose and permissible service.

   

   (a)(1) Instructional television fixed 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. Authorized instructional
   television fixed station channels must be used to transmit formal
   educational programming offered for credit to enrolled students of
   accredited schools, with limited exceptions as set forth in paragraph
   (e)(9) of this section and Secs. 74.990 through 74.992.

   (2) All applicants that do not list accredited schools as receive
   sites must name the school(s) and the degree(s) or diploma(s) for
   which the formal programming will be offered and describe the
   administration of the course(s). They must submit documentation,
   written or signed by the authorities responsible for the schools'
   curricula, verifying each of these points.

   (b) Such stations may also be used for the additional purpose of
   transmitting other visual and aural educational, instructional and
   cultural material to selected receiving locations, including
   in-service training and instruction in special skills and safety
   programs, extension of professional training, informing persons and
   groups engaged in professional and technical activities of current
   developments in their particular fields, and other similar endeavors.

   (c) A licensee solely utilizing analog transmissions may use excess
   capacity on each channel to transmit material other than the ITFS
   subject matter specified in paragraphs (a) and (b) of this section,
   subject to the following conditions:

   (1) Before leasing excess capacity on any one channel, the licensee
   must provide at least 20 hours per week of ITFS educational usage on
   that channel, except as provided in paragraph (c)(2) and (c)(3) of
   this section. An additional 20 hours per week per channel must be
   strictly reserved for ITFS use and not used for non-ITFS purposes, or
   reserved for recapture by the ITFS licensee for its ITFS educational
   usage, subject to one year's advance, written notification by the ITFS
   licensee to its lessee and accounting for all recapture already
   exercised, with no economic or operational detriment to the licensee.
   These hours of recapture are not restricted as to time of day or day
   of the week, but may be established by negotiations between the ITFS
   licensee and the lessee. This 20 hours per channel per week ITFS
   educational usage requirement and this recapture and/or reservation
   requirement of an additional 20 hours per channel per week shall apply
   spectrally over the licensee's whole actual service area.

   (2) For the first two years of operation, an ITFS entity may lease
   excess capacity if it provides ITFS educational usage for at least 12
   hours per channel per week, provided that the entity does not employ
   channel loading technology.

   (3) The licensee may shift its requisite ITFS educational usage onto
   fewer than its authorized number of channels, via channel mapping or
   channel loading technology, so that it can lease full-time channel
   capacity on its ITFS station and/or associated ITFS booster stations,
   subject to the condition that it provide a total average of at least
   20 hours per channel per week of ITFS educational usage on its
   authorized channels. The use of channel mapping or channel loading
   consistent with the Rules shall not be considered adversely to the
   ITFS licensee in seeking a license renewal. The licensee also retains
   the unabridgeable right to recapture, subject to six months' advance
   written notification by the ITFS licensee to its lessee, an average of
   an additional 20 hours per channel per week, accounting for all
   recapture already exercised. Regardless of whether the licensee has
   educational receive sites within its psa, the licensee may lease
   booster stations in the entire psa, provided that the licensee
   maintains the unabridgeable right to ready recapture at least 40 hours
   per channel per week for ITFS educational usage. The licensee may
   agree to the transmission of this recapture time on channels not
   authorized to it, but which are included in the wireless system of
   which it is a part. A licensee under this paragraph which leases
   excess capacity on any one of its channels to an operator may "channel
   shift" pursuant to and under the conditions of paragraph (d)(2) of
   this section.

   (4) An ITFS applicant or licensee may specify an omnidirectional
   antenna for point-to multipoint transmissions to facilitate the
   leasing of excess capacity.

   (5) Leasing activity may not cause unacceptable interference to
   cochannel or adjacent channel operations.

   (6) When an ITFS licensee makes capacity available on a common carrier
   basis, it will be subject to common carrier regulation.

   (i) A licensee operating as a common carrier is required to comply
   with all policies and rules applicable to that service. Responsibility
   for making the initial determination of whether a particular activity
   is common carriage rests with the ITFS licensee. Initial
   determinations by the licensees are subject to Commission examination
   and may be reviewed at the Commission's discretion.

   (ii) An ITFS licensee also may alternate, without further
   authorization required, between rendering service on a common carrier
   and non-common carrier basis, provided that the licensee notifies the
   Commission of any service status changes at least 30 days in advance
   of such changes. The notification shall state whether there is any
   affiliation or relationship to any intended or likely subscriber or
   program originator.

   (iii) Licensees under paragraph (c)(6) of this section additionally
   shall comply with the provisions of Sec. Sec. 21.304, 21.900(b), 21.903(b)(1)
   and (2) and (c), and 21.910 of this chapter.

   (d) A licensee utilizing digital transmissions on any of its licensed
   channels may use excess capacity on each channel to transmit material
   other than the ITFS subject matter specified in paragraphs (a) and (b)
   of this section, subject to the following conditions:

   (1) The licensee must reserve a minimum of 5% of the capacity of its
   channels for instructional purposes only, and may not lease this
   reserved capacity. In addition, before leasing excess capacity, the
   licensee must provide at least 20 hours per licensed channel per week
   of ITFS educational usage. This 5% reservation and this 20 hours per
   licensed channel per week ITFS educational usage requirement shall
   apply spectrally over the licensee's whole actual service area.
   However, regardless of whether the licensee has an educational receive
   sites within its psa served by a booster, the licensee may lease
   excess capacity without making at least 20 hours per licensed channel
   per week of ITFS educational usage, provided that the licensee
   maintains the unabridgeable right to recapture on one months' advance
   notice such capacity as it requires over and above the 5% reservation
   to make at least 20 hours per channel per week of ITFS educational
   usage.

   (2) The licensee may shift its requisite ITFS educational usage onto
   fewer than its authorized number of channels, via channel mapping or
   channel loading technology, and may shift its requisite ITFS
   educational usage onto channels not authorized to it, but which are
   included in the wireless system of which it is a part ("channel
   shifting"), so that it can lease full-time channel capacity on its
   ITFS station, associated ITFS booster stations, and/or ITFS response
   stations and associated response station hubs, subject to the
   condition that it provide a total average of at least 20 hours per
   licensed channel per week of ITFS educational usage. The use of
   channel mapping, channel loading, and/or channel shifting consistent
   with the Rules shall not be considered adversely to the ITFS licensee
   in seeking a license renewal. In addition, an ITFS entity receiving
   interference protection provided by Sec. 74.903, will continue to receive
   such protection if it elects to swap channels with another ITFS or MDS
   station as specified in Sec. 74.902(f).

   (3) An ITFS applicant or licensee may specify an omnidirectional
   antenna for point-to-multipoint transmissions to facilitate the
   leasing of excess capacity.

   (4) Leasing activity may not cause unacceptable interference to
   cochannel or adjacent channel operations.

   (5) A licensee leasing any of its licensed channels to be used as
   response channels shall be required to maintain at least 25% of the
   capacity of its channels for point-to-multipoint transmissions during
   the term of the lease and following termination of the leasing
   arrangement. This 25% preservation may be over the licensee's own
   authorized channels or over channels not authorized to it, but which
   are included in the wireless system of which it is a part.

   (6) When an ITFS licensee makes capacity available on a common carrier
   basis, it will be subject to common carrier regulation.

   (i) A licensee operating as a common carrier is required to comply
   with all policies and rules applicable to that service. Responsibility
   for making the initial determination of whether a particular activity
   is common carriage rests with the ITFS licensee. Initial
   determinations by the licensees are subject to Commission examination
   and may be reviewed at the Commission's discretion.

   (ii) An ITFS licensee also may alternate, without further
   authorization required, between rendering service on a common carrier
   and non-common carrier basis, provided that the licensee notifies the
   Commission of any service status changes at least 30 days in advance
   of such changes. The notification shall state whether there is any
   affiliation or relationship to any intended or likely subscriber or
   program originator.

   (iii) Licensees under paragraph (d)(6) of this section additionally
   shall comply with the provisions of Sec. Sec. 21.304, 21.900(b), 21.903(b)(1)
   and (2) and (c), and 21.910 of this chapter.

   (e) ITFS excess capacity leases entered into prior to March 31, 1997,
   which contain a provision for automatic renewal which would be
   effective after March 31, 1997, are exempt for the duration of said
   lease from compliance with subsequently adopted Commission rules.
   However, the total term of such applicable lease may not exceed
   fifteen years.

   (f) A licensee may use excess capacity on each channel to transmit
   material other than the ITFS subject matter specified in paragraphs
   (a), (b), (c), and (d) of this section subject to the following
   conditions:

   (1) If the time or capacity leased is not to be used for "wireless
   cable" operations, the licensee must preserve at least 40 hours per
   week, including at least 6 hours per weekday (Monday through Friday),
   excluding holidays and vacation days, for ITFS purposes on that
   channel. The 40-hour preservation may consist of airtime strictly
   reserved for ITFS use and not used for non-ITFS programming, or of
   time used for non-ITFS programming but subject to ready recapture by
   the licensee for ITFS use with no economic or operational detriment of
   the licensee. At least 20 hours per week of the preserved time on each
   channel must be used for ITFS programming, including at least 3 hours
   per weekday, excluding holidays and vacation days, except as provided
   in paragraph (e)(3) of this section. Only ITFS programming and
   preserved airtime scheduled between 8 a.m. and 10 p.m. Monday through
   Saturday, will qualify to meet these requirements.

   (2) If the time or capacity leased is to be used for "wireless cable"
   operations, before leasing excess capacity on any one channel, the
   licensee must provide at least 20 hours per week of ITFS programming
   on that channel, except as provided in paragraph (e)(3) of this
   section. All hours not used for ITFS programming may be leased to a
   "wireless cable" operator. An additional 20 hours per week per channel
   must be reserved for recapture by the ITFS licensee for its ITFS
   programming, subject to one year's advance, written notification by
   the ITFS licensee to its "wireless cable" lessee. These hours of
   recapture are not restricted as to time of day or day of the week, but
   may be established by negotiations between the ITFS licensee and the
   "wireless cable" lessee.

   (3) For the first two years of operation, an ITFS entity may lease
   excess capacity if it provides ITSF programming at least 12 hours per
   channel per week, including up to four hours of ITFS usage per day.

   (4) The licensee may schedule the ITFS programming and use automatic
   channel switching equipment so as to employ channel mapping technology
   to lease to a "wireless cable" operator. However, an ITFS applicant
   should request only as many channel as it needs to fulfill its
   educational requirements.

   (5) All of the capacity available on any subsidiary channel of any
   authorized channel may be used for the transmission of material to be
   used by others.

   (6) When an ITFS licensee makes capacity available on a common carrier
   basis, it will be subject to common carrier regulation. A licensee
   operating as a common carrier is required to apply for the appropriate
   authorization and to comply with all policies and rules applicable to
   that service. Responsibility for making the initial determination of
   whether a particular activity is common carriage rests with the ITFS
   licensee. Initial determinations by the licensees are subject to
   Commission examination and may be reviewed at the Commission's
   discretion.

   (7) An ITFS applicant, permittee, or licensee may use an
   omnidirectional antenna to facilitate the leasing of excess capacity
   to "wireless cable" operators.

   (8) Leasing activity may not cause unacceptable interference to
   cochannel and adjacent-channel operations.

   (9) A licensee may shift its requisite ITFS programming onto fewer
   than its authorized number of channels, via channel mapping technology
   or channel loading, so that it can lease full-time channel capacity to
   a wireless cable operator, subject to the condition that it provide a
   total average of at least 20 hours per channel per week of ITFS
   programming on its authorized channels. The licensee also retains the
   unabridgeable right to recapture, subject to six months' written
   notification to the wireless cable operator, an average of an
   additional 20 hours per channel per week for simultaneous programming
   on the number of channels for which it is authorized. The licensee may
   agree to the transmission of this recapture time on channels not
   authorized to it, but which are included in the wireless system of
   which it is a part.

   (g) Material transmitted by these stations may be intended for
   simultaneous reception and display or may be recorded by authorized
   users for use at another time.

   (h) On a secondary basis, an ITFS station may be operated as a
   temporary fixed station from temporary unspecified points to an ITFS
   station under the provisions of paragraph (a), (b), (d) or (e) of this
   section.

   (i) Except as specified in paragraphs (i) and (j) of this section, no
   licensee of a station in this service may lease transmission time or
   capacity to any cable television company either directly or indirectly
   through an affiliate owned, operated, controlled by, or under common
   control with the cable television company, if the ITFS main
   transmitter station is within 32 km (20 miles) of the cable television
   company's franchise area or service area, and if the cable television
   company is the sole provider of cable television service in the
   franchise area.

   (j)(1) A cable television company shall be exempt from the provisions
   of paragraph (h) of this section if its franchise area contains none
   of the following:

   (i) Any incorporated place of 2,500 inhabitants or more, or any part
   thereof;

   (ii) Any unincorporated place of 2,500 inhabitants or more, or any
   part thereof; or

   (iii) Any other territory, incorporated or unincorporated, included in
   an urbanized area.

   (2) All population statistics and definitions used in qualifying for
   this exemption shall be the most recent available from the U.S.
   Department of Commerce, Bureau of the Census. In no event shall any
   statistics resulting from censuses prior to 1980 be used. The Census
   Bureau has defined some incorporated places of 2,500 inhabitants or
   more as "extended cities." Such cities consist of an urban part and
   rural part.

   (3) If the cable operator's franchise area includes a rural part of an
   extended city, but includes no other territory described in this
   paragraph, an exemption shall apply.

     NOTE: Note 1:

     In applying the provisions of paragraphs (h) and (i) of this
     section, an attributable ownership interest shall be defined by
     reference to the Notes contained in Sec. thnsp;21.912.

   (k) The provisions of paragraph (h) of this section will not apply to
   ITFS excess capacity leased directly or indirectly to cable operators
   or affiliates to provide locally-produced programming to cable
   headends. Locally-produced programming is programming produced in or
   near the cable operator's franchise area and not broadcast on a
   television station available within that franchise area. A cable
   operator or affiliate will be permitted to lease ITFS excess capacity
   equivalent to one MDS channel within 32 km (20 miles) of the cable
   television franchise area or service area for this purpose, and,
   within 32 km (20 miles) of the cable television franchise area or
   service area, no more ITFS excess capacity than the equivalent of one
   MDS channel may be used by a cable television company or affiliate
   pursuant to this paragraph (k). The licensee for a cable operator
   providing local programming pursuant to a lease must include in a
   notice filed with the Wireless Telecommunications Bureau a cover
   letter explicitly identifying its lessee as a local cable operator or
   affiliate and stating that the lease was executed to facilitate the
   provision of local programming. The first lease notification for an
   MDS or ITFS channel in an area filed with the Commission will be
   entitled to the exemption. The limitations on the equivalent of one
   MDS channel per party and per area include any cable/ITFS operations
   grandfathered pursuant to paragraph (l) of this section or any
   cable/MDS operations grandfathered pursuant to Sec. 21.912(f) of this
   chapter. Local programming service pursuant to a lease must be
   provided within one year of the date of the lease or one year of the
   grant of the licensee's application for the leased channel(s),
   whichever is later.

   (l) Lease arrangements between cable and ITFS entities for which a
   lease or a firm agreement was signed prior to February 8, 1990, will
   not be subject to the prohibitions of paragraph (h) of this section.
   Leases between cable television entities and ITFS entities executed on
   February 8, 1990, or thereafter, are invalid.

   [ 28 FR 13731 , Dec. 14, 1963, as amended at  33 FR 15424 , Oct. 17, 1968;
    48 FR 33901 , July 26, 1983;  49 FR 27151 , July 2, 1984;  49 FR 32596 ,
   Aug. 15, 1984;  50 FR 26760 , June 28, 1985;  51 FR 9800 , Mar. 21, 1986;
    55 FR 46013 , Oct. 31, 1990;  56 FR 57600 , Nov. 13, 1991;  56 FR 57819 ,
   Nov. 14, 1991;  56 FR 65191 , Dec. 16, 1991;  58 FR 34378 , June 25, 1993;
    58 FR 44951 , Aug. 25, 1993;  59 FR 35636 , July 13, 1994;  64 FR 50646 ,
   Sept. 17, 1999;  65 FR 46621 , July 31, 2000;  67 FR 13234 , Mar. 21,
   2002]

   Editorial Note:   At  63 FR 65116 , Nov. 25, 1998, Sec. 74.931 was amended
   by redesignating paragraphs (d) and (e) as (b) and (c), redesignating
   paragraphs (f) through (k) as (e) through (j), revising paragraphs
   (a), (b) and (c), and adding a new paragraph (d); however, (b) and (c)
   already exist.

   Effective Date Note:   At  65 FR 46621 , July 31, 2000, paragraph (d)
   was revised. Paragraph (d)(1) contains information collection and
   recordkeeping requirements and will not become effective until
   approval has been given by the Office of Management and Budget.