PUBLIC NOTICE
FEDERAL COMMUNICATIONS COMMISSION
1919 M STREET, N.W.
WASHINGTON, D.C. 20554                                 DA 98-2070

News media information 202/418-0500     Fax-On-Demand  202/418-2830     Internet:  http://www.fcc.gov    ftp.fcc.gov


                                       Released: October 15, 1998

                                 
     ITFS MUTUALLY EXCLUSIVE APPLICATIONS - SETTLEMENT PERIOD

The FCC reminds applicants that it has waived 47 C.F.R.  73.3525(a)(3), which limits the terms for
settlement among applicants competing for Instructional Television Fixed Service (ITFS) facilities, for a 120
day period, effective September 11, 1998.  The FCC will also permit "white knight" settlements which involve
the award of a license to a non-applicant third party.

In the First Report and Order, FCC 98-194 (released August 18, 1998) the Commission concluded that based
on the express terms of Section 309(j) of the Communications Act of 1934, 47 U.S.C.  309(j), it is required
to use competitive bidding to resolve mutually exclusive ITFS applications.  In so doing, the Commission
recognized that ITFS applications which have been pending for several years were filed under the current rules,
with the expectation that any mutually exclusive applications would be resolved pursuant to the existing point
system set forth in 47 C.F.R.  74.913.  Moreover, given the congressional directive in Section 309(l)(3) to
waive limitations on settlement prior to any auction of pending pre-July 1, 1997 broadcast applications, the
Commission believed it would be appropriate to provide a similar period for pending competing ITFS
applicants to settle prior to the scheduling of any auction.  Id. at  206.  We also believe that encouraging
settlements will speed delivery of educational service to students and enhance the competitive position of MDS
operators.

Accordingly, any agreement filed on or before the 120th day after the publication date of the First Report and
Order in the Federal Register (September 11, 1998), that provides for a universal settlement of mutually
exclusive applications now on file, need not comply with the requirements of Section 73.3525(a)(3) precluding
payments to dismissing applicants for new facilities in excess of their legitimate and prudent expenses.  In
addition, parties need not provide the information required in Section 73.3525(a)(5).  Parties may also enter
into settlement agreements which will result in the award of the authorization to a non-applicant third party,
including the pertinent MDS BTA authorization holder.  We emphasize, however, that any "white knight" must
demonstrate that it meets all eligibility criteria for the service, as set forth in 47 C.F.R.   74.932 or 74.990. 
Parties are also reminded that they are permitted to amend pending applications in order to resolve mutually
exclusive applications, so long as no additional interference results.  See Report and Order in MM Docket No.
93-24, 10 FCC Rcd 2907, 2911 (1995).

For further information contact:  Joyce Bernstein or Melvin Collins at (202) 418-1610.