TR Daily Draft EBS Order Would Remove Educational Use Mandate
Tuesday, June 18, 2019

Draft EBS Order Would Remove Educational Use Mandate

A draft report and order circulated today for consideration at the FCC’s July 10 meeting would remove the educational use requirement for educational broadband service (EBS) spectrum in the 2.5 gigahertz band, which would open up the transfer of licenses from educational to commercial entities, a senior FCC official told reporters during a conference call this afternoon.

The draft item would also decline to adopt proposals to establish filing windows for existing licensees to expand their service areas to county boundaries and for educational entities that don’t currently hold EBS licenses to acquire them, the official said. The order would establish a filing window to allow tribes in rural areas and approve the auctioning of any remaining unlicensed spectrum, the official added. The official also said the FCC would adopt aggressive build-out rules.

FCC Chairman Ajit Pai said in a blog posting this afternoon that he circulated eight items for consideration at the FCC’s July 10 meeting.

He also circulated draft final procedures for the FCC’s planned auction later this year of 3,400 megahertz of spectrum in the 37 GHz, 39 GHz, and 47 GHz bands; a notice of proposed rulemaking and declaratory ruling on multiple tenant environments (MTEs); an item to eliminate pricing regulation of lower-speed business data services (BDSs); an NPRM on the Connected Care Pilot Program; and three media-related items.

In his blog posting, Mr. Pai stressed that the 2.5 GHz EBS band “is the single largest band of contiguous spectrum below 3 GHz. But much of this public resource has been unused for decades. That’s partly because the technology that policymakers conceived many years ago for this band hasn’t materialized as some thought, and partly because arcane rules hampered providers from putting the spectrum to its highest-valued use.

“At long last, we’re going to put more of this critical mid-band spectrum to work for the American people,” Mr. Pai added. “On July 10, the Commission will vote on an order that will modernize an outdated regulatory regime for the 2.5 GHz band, a regime developed in the days when educational TV was the only use envisioned for this spectrum. The new framework will not only give incumbent users more flexibility in how they use the spectrum, but also provide opportunities for Tribal Nations and others to obtain access to unused 2.5 GHz spectrum. Making this valuable mid-band spectrum available for new mobile services will allow for more efficient and effective use of these airwaves and will advance U.S. leadership in 5G. My colleagues have expressed a strong interest in bringing mid-band spectrum to market, and this order represents a prime opportunity to do just that.”

The FCC last year adopted an NPRM in WT docket 18-120 in its EBS proceeding to consider steps to free up unused EBS spectrum for commercial services (TR Daily, May 10, 2018).

Among other things, the FCC proposed to permit EBS licensees to fully transfer licenses to commercial providers, rather than only signing long-term leases.

The NPRM also sought comment on whether the FCC should establish local priority filing windows for existing licensees to expand service to county boundaries, for tribes in rural areas, and for educational entities that don’t hold EBS licenses. It also proposed auctioning any remaining spectrum.

During today’s conference call with reporters, the senior FCC official said that permitting licensees to rationalize their current licenses would result in disputes between parties and make it more difficult to efficiently utilize unused spectrum due to what would be the jagged nature of geographic areas. Instead, auctioning unused spectrum via counties makes more sense, the official said, noting there are unused licenses in about half of the U.S.’s geographic mass.

The order would leave it up to the Wireless Telecommunications Bureau to set the timing for an auction of unused EBS spectrum, the official said. But the official stressed that spectrum would not be auctioned until the tribal filing window had closed. The official also said the flexibility afforded educational and other entities would ensure that the spectrum is used for its highest and best use, which would help boost broadband deployment, especially in rural areas.

Educational entities had urged the FCC to approve the filing window for educational entities and maintain an educational use requirement, and a number of members of Congress had also asked the Commission to prioritize licensing of unused EBS spectrum for educational and tribal parties.

Last month, proponents of EBS spectrum urged the FCC to seek further comment in its EBS proceeding and defer action until the Commission and Justice Department have acted on the T-Mobile US, Inc.-Sprint Corp. merger (TR Daily, May 13). Sprint is a major holder of leased EBS spectrum. But a group that represents commercial entities opposed the requested delay.

Earlier this month, the U.S. Department of Education asked the FCC “to maintain and modernize the current educational priority of the EBS spectrum by maintaining the current eligibility requirements for EBS licenses, modernizing the educational use requirement, and issuing new EBS licenses using local priority filing windows” (TR Daily, June 10).

Last week, industry and educational stakeholders told the FCC that they had reached a consensus proposal for rationalizing 2.5 GHz band circular geographic service areas (GSAs) into county-based geographic boundaries (TR Daily, June 14).

“While the record to date reflects different approaches to county-based rationalization, these stakeholders have come together and now jointly recommend the following four-part rationalization approach,” they said in a filing. “First, the Commission should rationalize the outdated circular GSAs to the county boundary, where an existing licensee’s GSA covers a minimum threshold of 25 percent of the geography of a county. Second, rationalization should take place automatically using a process similar to the one implemented in 2005 when EBS GSAs current 35-mile radius circles. Third, rationalization should apply equally to all current GSAs and license holders that satisfy the 25 percent threshold. And fourth, no current licensed GSA should be reduced in size.”

Representatives of some educational entities expressed disappointment today with the draft order.

“We are deeply concerned by the Federal Communication Commission (FCC) Chairman’s blog regarding 2.5 GHz Educational Broadband Service (EBS) spectrum. Flying in the face of unanimous support on the record from Congress, the U.S. Department of Education, public interest groups, and educational associations to preserve the public interest benefits of this spectrum, the FCC is moving forward with a radical policy change that would eliminate the only remaining broadband spectrum reserved for educational use and the public interest,” said Katherine Messier, executive director of Mobile Beacon and director-development of the North American Catholic Educational Programming Foundation, Inc.

“We disagree with the Chairman’s assessment in his blog that much of this public resource has been unused for decades. The only EBS spectrum unused today is that which the FCC has failed to license for more than two decades, depriving rural educators and families of access to a resource that has successfully connected tens of thousands of schools, libraries, and other anchor institutions, and through them, millions of students and families not served by commercial broadband offers,” Ms. Messier added. “The cruelest irony is not only will the Commission fail in its goal to rapidly put this spectrum to use for 5G — a commercial auction will delay deployment by years instead of having it put to use in weeks or months if it was licensed — but it will take away one of the most effective tools it has to combat the rural digital divide and the homework gap at a time when broadband for education has never been more critical.”

"While we await the release of the FCC’s Draft Report and Order before coming to a final conclusion, Voqal is disheartened with reports today that the FCC is poised to strip the public interest requirement from Educational Broadband Service (EBS) spectrum – the only public airwaves reserved for educators,” said Voqal, the trade name for five nonprofit organizations that hold EBS licenses. “The timing of this news is especially disappointing given there is no resolution on the T-Mobile / Sprint merger, which has serious implications for EBS licensees. Furthermore, a major economic study – the only of its kind – was recently submitted to the Commission but has yet to receive any significant discussion in the record. Most importantly, in the past few days multiple members of Congress and the Department of Education have submitted letters to the FCC imploring the Commission to keep EBS educational. For an FCC that is constantly concerned with Congressional intent, they seem to be ignoring it when it comes to Educational Broadband Service.”

Mary O'Connor, counsel to the Wireless Communications Association International, had a mixed reaction on details of the draft order.

“Obviously, we’re disappointed that there will be no rationalization because we think that would help clean up the band and make any auction of the spectrum clearer,” she told TR Daily. However, she added, “We’re pleased that we’re going to go straight to auction, if that is the case.” “The devil will be in the details,” she noted.

Some other stakeholders with an interest in the EBS band declined to comment until they have a chance to read the draft order.

Regarding the draft item setting procedures for the millimeter-wave band auction that is scheduled to start Dec. 10, Mr. Pai said in today’s blog posting, “Among the many key details outlined in this Public Notice, this will be an incentive auction. In addition, each of the bands available will be licensed on an unpaired basis in 100-megahertz channel blocks, and the winning bidder may provide any services permitted under a fixed or mobile allocation.

The FCC adopted a public notice in April in AU docket 19-59 proposing application and bidding procedures for the sale (TR Daily, April 12). Some parties asked the FCC to modify its proposals.

For example, the Rural Wireless Association said that the agency should auction licenses through counties or even census blocks rather than the larger partial economic areas (PEAs), while the Wireless Internet Service Providers Association asked the agency to help smaller providers by also auctioning white spaces in the 39 GHz band (TR Daily, May 16).

Chairman Pai also said he would seek a vote on the draft NPRM and declaratory ruling to help ensure that residents, businesses, and other entities in MTEs have access to and competitive choices for broadband service.

The FCC launched its GN docket 17-142 proceeding on increasing consumer choice and enhancing broadband deployment in MTEs with a notice of inquiry during the first year of Mr. Pai’s tenure as chairman (TR Daily, June 22, 2017). At the time, Commissioner Mike O’Rielly expressed concern about the FCC’s authority regarding marketing practices, as well as the extent of its authority over broadband deployment if the agency were to go forward with the then pending proposal to reclassify broadband service as an information service under Title I of the Communications Act. That proposal was adopted later that year (TR Daily, Dec. 14, 2017).

The draft MTE item that Chairman Pai teed up today “would seek public input on actions we could take to accelerate the deployment of next-generation networks and services within MTEs. Second, we would clarify that we welcome state and local efforts to promote access to and competition in MTEs, so long as those efforts are consistent with federal policy. Third, we would preempt an outlier San Francisco ordinance to the extent it requires the sharing of in-use wiring in MTEs, a policy which deters broadband deployment,” the Chairman said in his blog post.

He also said that he plans to ask his colleagues to vote on a draft item that would “eliminate unnecessary pricing regulation of a subset of lower-speed ‘business data services’ - middle-mile services known as ‘transport’ services - offered by price-cap incumbent carriers. The increasingly competitive marketplace for transport obviates the need for these rules - and the market distortions and stifled investment that come with them. (This is a follow-up from a decision last year by the U.S. Court of Appeals for the Eighth Circuit that repeatedly upheld the FCC’s light-touch policy judgments in this area as reasonable.) The item will also give price cap carriers partial forbearance relief after a reasonable transition period from decades-old requirements that they provide legacy transport - known as ‘DS1 and DS3 transport’ - to their competitors on an unbundled basis at regulated rates. Importantly, we will grant this relief only where there is actual or potential competition that ensures reasonable prices. Removing these unnecessary regulatory burdens will spur more facilities-based competition and network deployment.”

Last year, in the unanimous decision by a three-judge panel, the Eighth Circuit (St. Louis) upheld most of the FCC’s 2017 BDS order while vacating for lack of adequate notice provisions that dealt with legacy time division multiplex (TDM) transport services. The court remanded the TDM provisions to the FCC for further action, which Chairman Pai said he intended to initiate “as soon as possible.” Regarding other provisions, the court found adequate notice was provided and that the FCC’s interpretation of the governing statutory provisions was reasonable and not arbitrary or capricious (TR Daily, Aug. 28, 2018).

Chairman Pai also said he plans to include on the July meeting agenda a draft NPRM on the Connected Care pilot program proposed by Commissioner Brendan Carr.

The NPRM would follow a WC docket 18-213 NOI adopted last year that sought comment on the goals of the pilot program and the FCC’s statutory authority for conducting the pilot; the design and budget for the pilot program; the application process for parties seeking funding; the types of telehealth pilot projects that should be funded; the eligibility criteria for participating health care providers, broadband service providers, and low-income consumers; the broadband services and other communications services and equipment that should be supported; support levels and methods for disbursing support; the duration of the pilot program; and appropriate metrics for assessing the effectiveness of pilot projects in achieving the program goals (TR Daily, Aug. 2, 2018).

In his blog, Chairman Pai said that he would let Commissioner Carr “flesh out the details of this Notice of Proposed Rulemaking, but I can say this is a significant step forward in meeting our goal of ensuring that American families and veterans can access next-generation telehealth services outside brick-and-mortar healthcare facilities.”

Commissioner Carr’s office did not respond to a request for comment by TR Daily’s news deadline.

The three media-related items that Chairman Pai teed up are an update to the FCC’s children’s television programming (“kid vid”) rules; an order to allow commercial broadcasters to upload their triennial must-carry/retransmission consent elections into their public files and notify multichannel video programming distributors of any change in their elections by e-mail, in lieu of the existing requirement to notify MVPDs by certified mail; and an item aimed at allowing e-mail instead of paper delivery of MVPDs’ notices to broadcasters regarding certain service changes in a local market. —Paul Kirby, [email protected]; Lynn Stanton, [email protected]

MainStory: FCC FederalNews SpectrumAllocation WirelessDeployment BroadbandDeployment UniversalServiceLifeline

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