[September 28, 2009] Facilitating the Provision of Fixed and Mobile Broadband Access, Educational and Other Advanced Services in the 2150-2162 and 2500-2690 MHz Bands Tweet Sep 28, 2009 (Federal Government Documents and Publications/ContentWorks via COMTEX) -- SUMMARY: In this document, the Commission addresses two issues with respect to two petitions for reconsideration filed in response to the Fourth Memorandum Opinion and Order. First, the Commission changes its policy regarding the "start date" of Educational Broadband Service (EBS) excess capacity lease agreements. Second, the Commission amends its rules to permit BRS 1 and 2/2A licensees to simultaneously operate, post-transition, in the 2.1 GHz band and in the 2.5 GHz band. The Commission makes these changes to facilitate the provision of the broadband and other new and innovative wireless services in the 2.5 GHz band, to ensure that the spectrum is put in use, and to promote rapid service to the public. DATES: Effective October 28, 2009. ADDRESSES: Federal Communications Commission, 445 12th Street, SW., Washington, DC 20554. FOR FURTHER INFORMATION CONTACT: Nancy M. Zaczek, Wireless Telecommunications Bureau, Broadband Division, Federal Communications Commission, 445 12th Street, SW., Washington, DC 20554, at (202) 418-0274 or via the Internet to [email protected]. SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Fifth Memorandum Opinion and Order, FCC 09-70, adopted on September 8, 2009 and released on September 11, 2009. The full text of this document, including attachments and related documents is available for public inspection and copying during normal business hours in the FCC Reference Information Center, Room CY-A257, 445 12th Street, SW., Washington, DC 20554. The complete text of these documents and related Commission documents may be purchased from the Commission's duplicating contractor, Best Copy and Printing, Inc. (BCPI), Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20554, (202) 488-5300 or (800) 378-3160, contact BCPI at its Web site: http://www.bcpiweb.com. When ordering documents from BCPI, please provide the appropriate FCC document number, for example, FCC 09-70. The complete text of these documents is also available on the Commission's Web site at http://wireless.fcc.gov/edocs_public/attachment/FCC-09-70A1doc. This full text may also be downloaded at: http://wireless.fcc.gov/releases.html. Alternative formats (computer diskette, large print, audio cassette, and Braille) are available by contacting Brian Millin at (202) 418-7426, TTY (202) 418-7365, or via e-mail to [email protected]. Summary I. Introduction 1. In this Fifth Memorandum Opinion and Order, the Commission grants, in part, two petitions for reconsideration of the Broadband Radio Service (BRS)/Educational Broadband Service (EBS) Fourth Memorandum Opinion and Order adopted on March 18, 2008 and released on March 20, 2008, 73 FR 26032 (May 8, 2008). 2. The first issue we address on reconsideration concerns how the Commission should implement the 15-year term limit for grandfathered EBS leases (i.e. leases entered into before January 10, 2005) that it established in the BRS/EBS Fourth MO&O. The item adopts an unopposed compromise proposal negotiated between the National EBS Association (NEBSA)--which represents educational interests that hold EBS licenses--and the Wireless Communications Association International, Inc. (WCA)--which represents commercial operators that lease spectrum from EBS licensees. Our adoption of the NEBSA/WCA Proposal balances the concerns of both educators and commercial lessees. 3. The second issue we address on reconsideration concerns whether the Commission should permit BRS 1 and 2/2A licensees to simultaneously operate, post-transition, in the 2.1 GHz band and in the 2.5 GHz band until all of their customers have migrated to the 2.5 GHz band. This determination is consistent with the Commission's decision in the BRS/EBS Fourth Memorandum Opinion and Order to permit such simultaneous operation pre-transition in order to avoid requiring BRS operators to flash cut subscribers to the new band plan. II. Issues on Reconsideration A. Grandfathered EBS Leases 4. Background. The Commission established the Instructional Television Fixed Service (ITFS) in the 2500-2690 MHz band in 1963 and later adopted rules for the Multipoint Distribution Service (MDS). ITFS was generally used for one-way video service for students. MDS was generally used to provide wireless cable service to subscribers. In 1983, noting that the ITFS was being underutilized, the Commission permitted ITFS licensees to lease excess channel capacity to commercial MDS operators. In 2004, the Commission renamed ITFS as the Educational Broadband Service (EBS) and MDS as the Broadband Radio Service (BRS). 5. The Commission's policy regarding the length of EBS leases has evolved since it first permitted ITFS (now EBS) licensees to lease excess capacity in 1983. Originally, the Commission's policy prohibited an ITFS licensee from executing a lease agreement with commercial operators that extended beyond the 10-year ITFS license term because such provisions were viewed as inconsistent with the terms of the license. In 1995, however, the Commission changed its policy to permit an ITFS licensee to enter into a 10-year lease agreement without regard to the duration of the licensee's license term, but required the lease to note that such an extension was contingent on the renewal of the license. In 1998, in the Two-Way Order, the Commission again changed its policy and permitted an ITFS licensee, as of the effective date of that order, which was January 25, 1999, to enter into a 15-year lease agreement, but continued to require that, to the extent the lease extended beyond the current license term, the lease specify that such an extension be subject to the renewal of the underlying license. The Commission also grandfathered existing ITFS excess capacity leases entered into before March 31, 1997. In 2000, in the Two-Way Order on Further Reconsideration, the Commission further grandfathered ITFS excess capacity leases entered into before March 31, 1997 that contained an automatic renewal clause that would be effective after March 31, 1997, provided that the total term of the lease did not exceed 15 years. 6. In 2004, in the BRS/EBS R&O, the Commission adopted a number of revisions to ITFS and MDS, and renamed ITFS as the Educational Broadband Service (EBS) and MDS as the Broadband Radio Service (BRS). Of particular relevance here, the Commission applied the spectrum leasing rules established in the Secondary Markets proceeding to EBS (formerly ITFS) excess capacity leases for new leases entered into after the effective date of that order (which was January 10, 2005), while grandfathering existing leases under the previous ITFS rules, which limited such leases to a term of no more than fifteen years. In 2006, in the BRS/EBS Third MO&O, the Commission modified the application of the spectrum leasing rules and policies of the Secondary Markets proceeding to EBS leases, while reaffirming that excess capacity leases entered into before January 10, 2005 were grandfathered under the previous ITFS leasing framework. 7. In the BRS/EBS Fourth MO&O adopted in March 2008, the Commission provided additional clarification regarding grandfathered leases, holding that they "are grandfathered after January 10, 2005 if they have an automatic renewal clause effective after January 10, 2005, only to the extent that such leases do not exceed 15 years in total length (including the automatic renewal period(s))." The Commission stated that leases executed before January 10, 2005 are limited to a term of 15 years "from the date of execution." 8. On June 9, 2008, WCA and Gateway Access Solutions, Inc. asked the Commission to reconsider its decision in the BRS/EBS Fourth MO&O that limited grandfathered excess capacity leases entered into before January 10, 2005 to a term of 15 years, starting from the date of execution. C&W Enterprises, Clarendon Foundation, and a Commercial Coalition comprised of Sprint Nextel Corp., Clearwire Corp., Xanadoo, Inc., NextWave, and WCA support WCA's petition. NEBSA, the ITFS/2.5 GHz Mobile Wireless Engineering & Development Alliance, the Hispanic Information and Telecommunications Network, Inc., and Texas State Technical College--Sweetwater opposed the petitions for reconsideration. Notwithstanding the disagreements between educational licensees and commercial lessees on this issue, both sides expressed a willingness to work out a compromise on this issue. On October 16, 2008, NEBSA and WCA submitted a joint proposal that reflects a compromise agreement between them regarding the maximum permissible lease term for grandfathered leases, which they assert is "fair and reasonable" in addressing their different concerns. 9. We conclude that the public interest would best be served by adopting the NEBSA/WCA Proposal. The NEBSA/WCA Proposal ensures the stability of existing viable relationships between educators and commercial lessees. We therefore adopt the compromise proposal as follows. Every grandfathered lease entered into before January 10, 2005, is limited to a term of 15 years commencing from its start date, which remains the date of execution except under certain circumstances. For earlier leases, i.e., grandfathered excess capacity leases executed before January 25, 1999, the start date is the date on which it was executed unless the existing lease provided for a later start date, and: (1) the lease actually started before March 20, 2008--as demonstrated by documentary evidence (including that the EBS licensee/lessor has been paid on or after the commencement of the lease)--in which case the lease will be deemed to have started on the start date contained in the lease; or (2) the lease did not start before March 20, 2008, but the parties have agreed in writing to continue with the existing lease, in which case the start date is deemed to be March 20, 2008. For later leases, i.e., grandfathered leases executed on or after January 25, 1999, but before January 10, 2005, the start date is the date on which the lease was executed unless the existing lease provided for a later start date. --This is a summary of a Federal Register article originally published on the page number listed below-- Final rule. CFR Part: "47 CFR Part 27" Citation: "74 FR 49334" Document Number: "WT Docket No. 03-66; FCC 09-70" Federal Register Page Number: "49334" "Rules and Regulations" [ Back To TMCnet.com's Homepage ]