Takeaways

Commercial service providers will be able purchase existing licensed EBS spectrum.
Tribal Entities will have first chance at acquiring vacant EBS spectrum.
New rules create three substantially larger spectrum blocks for new Tribal and Overlay EBS Licenses.

At its July 2019 Open Meeting, the FCC adopted revised rules for the Educational Broadband Service (EBS). While the service will continue to have “Educational” in its name, the FCC took several significant steps to eliminate the long-standing education requirements from its rules.

By way of background, the spectrum used for EBS was originally set aside for educational purposes in 1964, with the goal of providing one-way video programming to students. Over the years, the FCC adopted changes in the licensing regime, first introducing commercial licenses in 1984, and permitting educational licensees to enter into commercial spectrum leases.

In the late 1990s, the FCC modified the rules to permit two-way digital operations, and then in the mid-2000s, adopted a new band plan intending to maximize the usage of the spectrum. Despite these changes, the FCC had not opened a new filing window for vacant EBS spectrum since 1995, which prevented much of the rural portions of the country from being able to access this spectrum for its predominate usage, wireless broadband internet service.

Thus, in 2018, the FCC initiated a rulemaking intending to modify the EBS regulations to permit new entrants through priority filing windows and an overlay auction. The FCC also proposed to eliminate the requirement that the spectrum reserved for EBS be held by educational institutions, and to expand the incumbent licensees’ service area.

To no one’s surprise, the FCC adopted its proposal to eliminate the existing EBS eligibility and usage restrictions. While educational institutions and organization will be permitted to continue to hold EBS licensees, the FCC will now permit commercial entities to acquire existing EBS spectrum from current licensees through the assignment of EBS licenses, and the FCC will hold an auction next year for unused EBS spectrum.

After the new rules become effective, both current EBS licensees and new entrants acquiring EBS spectrum through private transactions, leases, or the upcoming auction, will be able to use EBS spectrum for any lawful purpose, subject only to the technical parameters associated with the EBS spectrum.

In adopting these changes, the FCC attempted to make clear that the revised rules will not directly affect the large number of current EBS licensees with existing long-term excess capacity lease arrangements with commercial entities. Many of those lease agreements are 30 years in length, and were updated and/or entered into after the FCC adopted the new band plan in 2004. The FCC acknowledged that some EBS licensees will wish to continue the existing relationship.

In a somewhat surprising move, the FCC determined that it would not expand the existing service areas of current EBS licensees. Many commenters supported some variation of the FCC’s proposal, but the FCC decided to keep in place the current protected service areas (now called geographic service areas) for existing EBS licensees. Thus, existing EBS authorizations will continue to be limited to providing service within a 35-mile radius centered on the authorization’s current reference coordinates.

Moving forward, the FCC first will open a priority filing window for new EBS applications to serve rural Tribal Lands. This filing window will be restricted to federally recognized American Indian tribe or Alaska Native Villages that intend to serve rural tribal lands. To be eligible, the entity filing the application must have a local presence on the Tribal land, and the geographic service area must have a population no greater than 50,000 persons, and may not be located in an urbanized area or urban cluster. Competing applications filed during the window will be resolved through a competitive bidding auction, and, once granted, the license authorization will apply to the entire Tribal land.

Both the Tribal Land and subsequently auctioned spectrum will be “overlay” authorizations, which will permit the licensee to operate anywhere within the geographic service area not currently authorized to an existing EBS licensee. As noted, Tribal EBS authorizations will extend for the entire Tribal Land in question, while the remaining EBS overlay authorizations will be auctioned on a county-by-county basis. There will be three overlay license bands:

1.    2502–2551.5 MHz (49.5 MHz total);

2.    2551.5–2602 MHz (50.5 MHz total);

3.    2615–2616 MHz + 2673.5 – 2690 MHz (16.5 MHz total)

The FCC also adopted build-out requirements for the new EBS authorizations, both for Tribal lands and those issued through the auction. The requirements have both an interim benchmark (within four years), and a final benchmark (within eight years).

1.    80% population coverage for mobile or point-to-multipoint service (50% interim);

2.    40 links per million persons (one link per 25,000) for fixed point-to-point service (20 links per million interim (one link per 50,000)); or

3.    80% population coverage for broadcast service (50% interim).

If a licensee does not meet the interim benchmark, then the FCC will accelerate the final benchmark so that the licensee must meet the final benchmark within six years.

The newly adopted rules will not become effective until six months after the Report and Order is published in the Federal Register. This means, at least in the short term, that existing EBS licensees must continue to comply with existing EBS eligibility and usage requirements.