On the books for the FCC’s May Open Meeting will be a Notice of Proposed Rulemaking (NPRM) regarding rule changes to establish commercial eligibility for Educational Broadband Service (EBS) licenses and to “rationalize” the EBS service areas. EBS is not a well-known radio service, so to appreciate the significance of these changes, a little history is in order.
If there is one radio service epitomized by change, it is the EBS. EBS was first conceived in the 1960s as a means for schools to transmit video educational programming to off-campus locations. It was first called the Instructional Television Fixed Service (ITFS), and could be licensed only to accredited schools and nonprofit companies who used the channels to offer formal educational programming to accredited schools. At that time, the ITFS allocation was 168 MHz within the 2.5 GHz, which was a huge allocation, but no one at that time saw any other value in such a “high” frequency.
In the 1980s, Microband Corporation conceived of the concept of “wireless cable” and was able to convince the FCC to allow ITFS licensees to lease their “excess capacity” to wireless cable companies. With 168 MHz, there was considerable excess capacity. In addition, the FCC sawed off 48 MHz of that spectrum and created the MMDS which could be licensed to commercial entities.
As more and more companies went into the wireless cable business and leased ITFS “excess capacity,” the FCC was convinced that these ITFS stations needed protected service areas, not for their core educational transmissions, but to protect wireless cable receivers. So, the FCC gave them 710-mile protected service areas which would correspond to the directionality of the antenna system, but provide a 15-mile radius service area for an omnidirectional antenna system. Eventually, the wireless cable industry convinced the FCC to enlarge the protected service area to 35-mile radius, again to protect wireless cable reception at more remote points. Then the wireless cable industry convinced the FCC to allow digital transmissions over ITFS channels, again for the benefit of the wireless cable industry.
Following that change, the wireless cable industry (which was failing) convinced the FCC to allow ITFS channels to be used for two-way broadband communications, to increase the maximum ITFS channel capacity that could be leased from 60 to 80percent, to 95percent, and to allow ITFS channels to be used “flexibly” while retaining the primary educational use requirement. Once again, yielding to the commercial lessees of the ITFS channel capacity, the FCC revised its rules so that ITFS would be regulated like almost all other commercial wireless services regulated by Part 27 of FCC Rules, and it changed the name “ITFS” to “EBS.” Sensing a pattern here? Still, with all those rule changes intended to assist an ancillary use of these educational frequencies, the FCC did not change its requirement that these frequencies be licensed only to educational entities, a requirement which (while already very much diluted) was retained.
Well, the near inevitable is now on the horizon. The NPRM up for adoption this May will propose the elimination of the educational licensing requirement and ask for comment on the elimination of the requirement to use some part of the channels for education, but, there is a catch. An EBS licensee will be able to assign its license to a commercial (non-educator) but the FCC will not accept applications for licenses from non-educators. Thus, the licensing of commercial entities within the EBS will be at the discretion of the educators that hold these licenses. As explained below, the FCC proposes filing “windows” for new EBS licenses that would be limited to non-commercial entities.
The NPRM also proposes to clean the untidy patchwork of licensing that resulted from various incremental changes in the licensing rules that have occurred over the years. Other commercial wireless services authorize service areas based upon geopolitical boundaries such as MSAs, GSAs, RSAs, etc. The smallest unit in these allocation schemes is the county (or parish or district). As a result, all parts of the United States are within a service area of these other commercial wireless services. EBS has been licensed in a manner that created vast and irregularly shaped unserved areas (“white areas”) that do not correspond to any geopolitical boundaries. ITFS was first licensed without a protected service area. Unlike other wireless services, EBS applicants chose a transmitter site and would be licensed at that site if their proposed facilities protected all previously authorized or proposed cochannel and adjacent channel facilities. As a result, cochannel EBS stations often were crowded into small geographic areas. (There are actually instances in which two cochannel stations were licensed to operate from the same tower.) This station location, versus area-based, licensing scheme resulted in many unserved areas.
The NPRM proposes a license change for existing licenses and filing windows to attract applications to serve these white areas. While you would think that commercial entities would be allowed in these filing windows, the FCC’s proposal is to exclude them and limit qualified applicants to educators and tribal nations. To serve these white areas the FCC would, first, expand the service areas (called GSAs) of existing EBS licenses to cover the entirety of census tracts that are partly within these service areas. As a result, the remaining “white space” would have boundaries that are coterminous with census tracts. After that expansion of the GSAs, the FCC proposes three filing windows. The first would be open to existing EBS licensees who could file to extend their GSAs to the borders of counties that are already partially covered by their GSAs. The second filing window would be open to tribal nations in rural areas, who could apply for licenses where they have tribal lands. The third filing window would be limited to educational entities that do not currently have EBS licenses, who would be able to file for licenses where they have educational facilities.
The proposed NPRM contains several other proposals, including reexamining the amount of spectrum within the FCC’s spectrum aggregation screen, eliminating the 30 year limit on EBS leases, eliminating the prohibition on leasing and assigning attached to licenses granted by waiver, and requiring EBS licensees to make a demonstration that they are using the channels (or face loss of the license or the unused channels).
The NPRM discusses possible alternatives to many of its proposals, suggesting a willingness to tailor the eventual rules to industry consensus. It is thus difficult to predict what the FCC will ultimately do. But, I would lay dollars to donuts that the educational eligibility restriction will be tossed in the final rules, while the educational use requirement (diluted as it is) will probably be eliminated or preserved in some other form that is favorable to commercial entities. Will that mean the end to the educational use of EBS? I think not. There are EBS licensees who are dedicated to promoting education through EBS, with Mobile Beacon and Mobile Citizen being exemplary of those who have proven the value of EBS for education.
Comments will be due 30 days after a summary of the NPRM is published in the Federal Register with reply comments due 60 days after that publication. We anticipate that those two dates will fall in June and July.