FCC Okays Long Awaited EBS-BRS Order, Some Details Murky

As expected, the FCC signed off on an agreement between the Wireless Communications Assn. and the Catholic TV Network allowing 30-year leases of the spectrum. Previously, the FCC had eyed lease terms as brief as 15 years, termed not long enough to encourage investments in networks by many firms. Under the order, in leases longer than 15 years, lease terms must provide a right to review an agreement’s educational use requirements every 5 years starting at year 15.

The FCC also agreed with industry that basic trading areas (BTAs), as opposed to far larger major economic areas (MEAs), should be the geographic benchmark for transition to the new BRS/EBS band. In an example cited by carriers, St. George, Utah, a BTA, overlaps the L.A.-San Diego and Phoenix MEAs. Absent the change, to clear St. George, a carrier also would have to clear these MEAs.

The order addresses many other issues, but only a brief press release was available Wed. An order could be weeks or even months away. Sources said parts of the massive order were under negotiations late in the game.

Many questions remain about what exactly the FCC did Wed., said Paul Sinderbrand, counsel to WCA: “There are an awful lot of items in the proceeding where we don’t know what the Commission has done, things like the deadline for substantial service, the transition process, the deadline for transitioning, are all critical issues and it looks like we'll have to wait to see. Based on the information we've heard I don’t understand the MSS-BRS 1 sharing, and that’s very important to the utility of BRS 1. All of the questions regarding BRS 1 and 2 relocation at this stage are unanswered - how is it going to happen.”

“With any order as complex as this one, the devil is in the details and we will not know with certainty what effect the decision will have on the wireless broadband industry growth until we see the full text,” said WCA Pres. Andrew Kreig.

“The industry is pleased that the Commission has at long last taken another step at facilitating the rollout of broadband services in the band,” said Stephen Coran, an attorney who works on EBS/BRS issues: “But there’s still a lot we don’t know… I certainly hope that the Commission moves forward expeditiously to release the full text so that we can digest it and move forward with transitions.”

Copps expressed strong reservations in his comments, saying he still believes educators should use EBS spectrum whenever possible. Industry in essence is demanding more than the FCC initially decided to give in its 2004 order allowing lease of the spectrum, he said. “It is no longer enough, they say, for educational licensees to lease up to 95% of their capacity to commercial users for up to 15 years,” Copps said: “Instead, educational licensees seek authority to lease up to 95% of their capacity for up to 30 years and with only a limited and poorly-defined opportunity to revisit the terms of the lease at 15, 20, and 25 years.”

Educational lease holders believe the net result of the new rules will be to enhance the value educators draw from the EBS band, Copps said. “I certainly hope they are right,” he said: “I have to tell you that I worry whether we may be going too far today.” -- Howard Buskirk

FCC Meeting Notebook…

Chmn. Martin confirmed after Wed.’s agenda meeting the FCC is contemplating enforcement action against major wireless carriers for missing a Dec. 31, 2005, requirement that 95% of cellphones used by customers be location capable (CD April 12 p2). “We have rules that were set in place,” Martin said: “Quite a few companies filed waiver requests. If the waiver requests aren’t granted then those will all be sent over to the Enforcement Bureau.” Martin conceded carriers that sought waivers are in far different positions: “There’s a whole range of how far they are in meeting those handset requirements.” He also confirmed that the FCC plans to take up an item examining opening of broadcast white spaces for unlicensed use (CD Feb 27 p1). But Martin said white spaces -- unused broadcast TV spectrum between 72 and 698 MHz -- can be opened only after the DTV transition ends in 2008. “The Commission isn’t sitting on it and we are going to move forward on the white spaces, but we have to do it in conjunction with allowing first the broadcasters to make their final selections on where they're going to be broadcasting digitally,” he said: “Until they do it’s unclear what the white spaces will be in each geographic market.” -- HB

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The FCC Wed. approved an order partly denying and partly dismissing a petition by the Forest Conservation Council, the American Bird Conservancy and Friends of the Earth seeking a moratorium on Gulf Coast region wireless towers construction because it violates environmental statutes. The item, taken off the meeting agenda, was voted on in circulation. The FCC said the groups “failed to justify their request… under the applicable legal standard, and that such a moratorium would harm the public interest by hindering the availability of commercial and public safety communications in the region.” The FCC rejected a request to order submission of new or supplemental environmental assessments of nearly 5,900 towers. “Petitioners failed to make any specific allegations relating to individual towers as required under the FCC’s rules,” the Commission said. Comr. Copps dissented in part and concurred in part. “Today’s action says less about the impact of communications towers on migratory birds than it does about past Commission failure to do its job,” he said. Copps said the Commission has had before it a migratory bird proceeding since 2003: “Many of the issues still unresolved in that proceeding are the same issues underlying the petitioners’ request before us. We need to get on with this job.” Comr. Adelstein said: “While I am sympathetic to a number of issues raised in the petition before us today, the petition just is not the right vehicle for these overarching concerns.”

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Mobile satellite services operator Globalstar may keep sharing 2496-2500 MHz with BRS, the FCC decided as part of the 2495-2690 MHz spectrum sharing review. Globalstar uses the S-band spectrum for its downlink traffic; its uplink is in the L-band. The Wed. BRS order affirmed a prior FCC ruling on 2.4 GHz spectrum sharing, said Howard Griboff, acting deputy chief of the International Bureau Policy Div. Globalstar voiced pleasure at the Commission decision. “Globalstar and BRS can continue to exist in this band,” said Globalstar Vp-Legal & Regulatory Affairs William Adler. The order wasn’t released Wed., but an International Bureau official told us the FCC gave Globalstar a green light to function as it has in areas without BRS activity. As BRS services roll out geographically, Globalstar can stay in the spectrum, but must operate under certain power flux density limits, the official said. The order doesn’t address the outcome in case a spike occurs in demand for Globalstar satellite phones after a Hurricane Katrina-like disaster, however. If Globalstar needs to exceed its FCC-mandated power limits in a such a scenario, Globalstar could coordinate directly with BRS licensees in the affected region or seek an STA from the FCC, an IB official said. The order won’t affect Globalstar’s planned ATC operations, we're told, because Globalstar’s ATC operations would function in spectrum below 2495 MHz.