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

(a) Notwithstanding the provisions §§ 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 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 § 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 § 21.902 of this chapter.