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

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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

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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.

[[Page 512]]

    (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 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

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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.