FCC invites comments on request for six-month extension of May 1 “Substantial Service” deadline
May 1, 2011: the End of Days . . . well, at least for licensees in the Educational Broadband (EBS) and Broadband Radio (BRS) services. It’s not the day of apocalypse foretold in some Mayan calendar. Rather, back in 2006, the Commission established May 1, 2011 as the date by which all EBS and BRS licensees must file showings demonstrating that they have been putting their spectrum to substantial use. The five-year lead time was intended to permit the embedded EBS/BRS facilities to be “transitioned” from the old band plan to the re-shuffled band plan which was adopted for those services in 2004. But now, with the long-dreaded deadline of May 1, 2011 looming nearer and nearer, the Catholic Television Network and NEBSA (the association of EBS licensees) have jointly filed a request seeking a six-month extension of time on the EBS (but not the BRS) side.
Though five years once seemed like a long time, the transition process has turned out to be a massive undertaking involving the construction of thousands of stations nationwide and the integration of those stations into either commercial broadband operations or educational programs. (Most stations – many of which were still analog – had been taken dark pending the nationwide transition to the new band plan, so the new stations had to be built from scratch.) Clearwire, the dominant commercial operator in the EBS/BRS space, leases hundreds, if not thousands, of EBS channels. There had been some anxiety in some quarters – always downplayed by Clearwire itself – that Clearwire may have bitten off more than it could chew in committing to build out all of these stations across the country. Significantly, Clearwire did not itself join in the petition to the FCC, but quickly filed supporting comments even before the FCC released its Public Notice on the matter. A consensus of supporting comments from other affected EBS licensees or lessees is to be expected.
In justifying the extension, the petitioners point to numerous difficulties that educators have had in obtaining base station or backhaul equipment. They also point to the fact that the FCC staff would be hard put to process the thousands of showings now due to be filed on May 1 (each of which must be separately reviewed and evaluated), with the result that those showings would probably sit on an electronic shelf for months anyway. That being the case, why compel the licensees to hurry up and file showings only to wait several months for them to be acted on?
Fortunately, the FCC has put this matter on a super fast track. The petition was filed on February 9, appeared on Public Notice February 11, and comments and replies are due February 22 and March 1, respectively. This lightning pace reflects the fact that the industry needs an answer on this issue immediately since May 1 gets closer every day. It also suggests that the FCC may be favorably disposed toward this request, despite having only a few weeks ago informally discouraged “blanket” extension requests in favor of individualized showings. Practicality seems to have triumphed over principle in this regard.
BRS licensees can take no comfort from this development. No one has sought an extension of their May 1 deadline, and the FCC has evidenced no willingness to nudge it forward. Certainly many of the factors that have delayed EBS licensees from initiating operations have also delayed BRS licensees, but unless and until an extension is sought, BRS licensees must face the coming day of reckoning.
