[Federal Register Volume 74, Number 186 (Monday, September 28, 2009)]
[Rules and Regulations]
[Pages 49335-49338]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-23330]


=======================================================================
-----------------------------------------------------------------------

FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 27

[WT Docket No. 03-66; FCC 09-70]


Facilitating the Provision of Fixed and Mobile Broadband Access, 
Educational and Other Advanced Services in the 2150-2162 and 2500-2690 
MHz Bands

AGENCY: Federal Communications Commission.

ACTION: Final rule.

-----------------------------------------------------------------------

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

[[Page 49336]]

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.
    10. We find that the NEBSA/WCA Proposal addresses the concerns of 
the other parties that have taken positions on the term of 
grandfathered leases. We find that the NEBSA/WCA Proposal appropriately 
balances the needs of the commercial lessee--to have a significant 
length of time in which to build out its service--with the needs of the 
educational licensee/lessor not to be tied indefinitely to lease 
agreements that have not provided it with educational services or lease 
revenues. We have granted relief with respect to one-way analog video 
leases entered into prior to the Two-Way Order. Further, with respect 
to leases involving broadband services, the rule changes we have made 
in this proceeding have been designed to facilitate the provision of 
broadband services. We decline to adopt the alternative proposals 
offered by the parties to this proceeding.

B. Simultaneous Operation on Old and New BRS Channels 1 and 2/2A

    11. Background. In the BRS/EBS R&O, the Commission not only 
restructured the 2500-2690 MHz band, but also designated the 2495-2500 
MHz band for use in connection with the 2500-2690 MHz band. In the BRS/
EBS R&O, the Commission proceeded to relocate BRS Channels 1 and 2/2A 
to new channel locations in the 2495-2690 MHz band. Specifically, BRS 
Channel 1 would be relocated from 2150-2156 MHz (which was redesignated 
for Advanced Wireless Service (AWS)) to 2496-2502 MHz and Channel 2/2A 
would be relocated from 2156-2160/62 MHz (also redesignated for AWS) to 
2618-2624 MHz. In the BRS/EBS Third MO&O, the Commission discussed the 
relationship between the transition within the 2.5 GHz band and the 
relocation of the BRS Channels No. 1 and No. 2/2A incumbents currently 
operating at 2150-2156 MHz and 2156-2160/62 MHz. In that regard, the 
Commission held that licensees on these channels may operate in either 
2150-2156 or 2496-2500 MHz (for BRS Channel 1) or 2156-2160/62 or 2686-
2690 MHz band (for BRS Channel 2/2A) pre-transition, but not in both 
bands. In the BRS/EBS Fourth MO&O, the Commission, in response to a 
petition for reconsideration filed by WCA, found

[[Page 49337]]

that BRS Channels 1 and 2/2A licensees may operate simultaneously in 
their old locations at 2150-2156 MHz and 2156-2160/62 MHz and their 
temporary, pre-transition locations at 2496-2500 MHz (BRS Channel 1) 
and 2686-2690 MHz (BRS Channel 2) until every subscriber is relocated 
to the 2.5 GHz band, at which point the licensees must cease all 
operations in the 2150-2160/62 MHz band.
    12. In the WCA Petition, WCA asks the Commission to confirm that 
even after a Basic Trading Area has been transitioned, BRS Channels 1 
and 2/2A licensees may simultaneously operate in both the 2.1 GHz band 
and the 2.5 GHz band until all of their subscribers have been 
successfully migrated to the 2.5 GHz band.
    13. We agree with WCA that it is not in the public interest to 
permit simultaneous operations, pre-transition, but prohibit them post-
transition prior to the migration of subscribers. Thus, we conclude 
that BRS Channels 1 and 2/2A operators may simultaneously operate, 
post-transition, in their old channel locations at 2150-2156 MHz and 
2156-2160/62 MHz and their new channel locations at 2496-2502 MHz or 
2618-2624 MHz until such time as all of their subscribers have been 
migrated to the 2.5 GHz band. Advanced Wireless Service (AWS) licensees 
must relocate existing BRS operations at 2150-2156 MHz and 2156-2160/62 
MHz if necessary in order to commence AWS operations in the band under 
circumstances specified in the Commission's rules. Since the BRS rules 
do not explicitly allow simultaneous operation, post-transition, on 
both the old and new channel locations, we amend Sec. Sec.  
27.5(i)(2)(i) and (iii) of the Commission's rules to add such 
authorization.

III. Procedural Matters

    14. Paperwork Reduction Analysis. This document does not contain 
proposed information collection requirements subject to the Paperwork 
Reduction Act of 1995, Public Law 104-13. In addition, therefore, it 
does not contain any proposed information collection burden ``for small 
business concerns with fewer than 25 employees,'' pursuant to the Small 
Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 
U.S.C. 3506(c)(4).

IV. Final Regulatory Flexibility Act Certification of BRS/EBS Fifth 
MO&O

    15. For the reasons described below, we now certify that the 
policies and rules adopted in the BRS/EBS Fifth MO&O will not have a 
significant economic impact on a substantial number of small entities. 
The RFA generally defines the term ``small entity'' as having the same 
meaning as the terms ``small business,'' ``small organization,'' and 
``small governmental jurisdiction.'' In addition, the term ``small 
business'' has the same meaning as the term ``small business concern'' 
under the Small Business Act. A ``small business concern'' is one 
which: (1) Is independently owned and operated; (2) is not dominant in 
its field of operation; and (3) satisfies any additional criteria 
established by the U.S. Small Business Administration (SBA).
    16. In this BRS/EBS Fifth MO&O, the Commission permits BRS Channels 
1 and 2/2A licensees to simultaneously operate in their old channel 
locations at 2150-2160/62 MHz and their new channel locations at 2496-
2502 MHz or 2618-2624 MHz, post-transition, until all of their 
subscribers have been migrated to the 2.5 GHz band. In the BRS/EBS 
Fourth MO&O, the Commission permitted BRS Channels 1 and 2/2A operators 
to simultaneously operate in their old channel locations and their 
temporary channel locations at 2496-2500 MHz or 2686-2690 MHz, pre-
transition.
    17. We find that our actions will not affect a substantial number 
of small entities because it affects only BRS Channels 1 and 2/2A 
operators that are actually operating and that will migrate subscribers 
post-transition to the 2.5 GHz band. Furthermore, our actions provide 
such entities with additional flexibility to operate simultaneously in 
their old and new channel positions while transitioning their systems 
to the new band plan. Therefore, we certify that the requirements of 
the BRS/EBS Fifth MO&O will not have a significant economic impact on a 
substantial number of small entities.

V. Report to Congress

    18. The Commission will send a copy of this Fifth Memorandum 
Opinion and Order, including a copy of this Final Regulatory 
Flexibility Certification, in a report to be sent to Congress and the 
Government Accountability Office pursuant to the Small Business 
Regulatory Enforcement Fairness Act of 1996, see 5 U.S.C. 801(a)(1)(A).

VI. Ordering Clauses

    19. Accordingly, it is ordered, that pursuant to section 4(i) and 
405 of the Communications Act of 1934, 47 U.S.C. 154(i), 405, and Sec.  
1.429 of the Commission's rules, 47 CFR 1.429, the Petitions for 
Reconsideration filed by the Wireless Communications Association 
International, Inc. and Gateway Access Solutions, Inc. on June 9, 2008, 
are granted in part and are otherwise denied.
    20. It is further ordered, pursuant to section 4(i) of the 
Communications Act of 1934, 47 U.S.C. 154(i), and Sec.  1.44(e) of the 
Commission's rules, 47 CFR 1.44(e), that the Petition for Stay of 
Wireless Communications Association International, Inc. filed on June 
9, 2008, is dismissed as moot.
    21. It is further ordered, pursuant to section 4(i) of the 
Communications Act of 1934, 47 U.S.C. 154(i), that the Commission's 
Consumer and Governmental Affairs Bureau, Reference Information Center, 
shall send a copy of this Fifth Memorandum Opinion and Order, including 
the Final Regulatory Certification, to the Chief Counsel for Advocacy 
of the Small Business Administration.

List of Subjects in 47 CFR Part 27

    Communications common carriers, Communications equipment, Equal 
employment opportunity, Radio, Reporting and recordkeeping 
requirements, Satellites, Securities, Telecommunications.

Federal Communications Commission.
Marlene H. Dortch,
Secretary.

Final Rules

0
For the reasons discussed in the preamble, the Federal Communications 
Commission amends 47 CFR part 27 as follows:

PART 27--MISCELLANEOUS WIRELESS COMMUNICATIONS SERVICES

0
1. The authority citation for part 27 continues to read as follows:

    Authority:  47 U.S.C. 154, 301, 302, 303, 307, 309, 332, 336, 
and 337 unless otherwise noted.


0
2. Amend Sec.  27.5 by revising paragraphs (i)(2)(i) and (i)(2)(iii) to 
read as follows:


Sec.  27.5  Frequencies.

* * * * *
    (i) * * *
    (2) * * *
    (i) Lower Band Segment (LBS): The following channels shall 
constitute the Lower Band Segment:

BRS Channel 1: 2496-2502 MHz or 2150-2156 MHz
EBS Channel A1: 2502-2507.5 MHz
EBS Channel A2: 2507.5-2513 MHz
EBS Channel A3: 2513-2518.5 MHz
EBS Channel B1: 2518.5-2524 MHz
EBS Channel B2: 2524-2529.5 MHz
EBS Channel B3: 2529.5-2535 MHz

[[Page 49338]]

EBS Channel C1: 2535-2540.5 MHz
EBS Channel C2: 2540.5-2546 MHz
EBS Channel C3: 2546-2551.5 MHz
EBS Channel D1: 2551.5-2557 MHz
EBS Channel D2: 2557-2562.5 MHz
EBS Channel D3: 2562.5-2568 MHz
EBS Channel JA1: 2568.00000-2568.33333 MHz
EBS Channel JA2: 2568.33333-2568.66666 MHz
EBS Channel JA3: 2568.66666-2569.00000 MHz
EBS Channel JB1: 2569.00000-2569.33333 MHz
EBS Channel JB2: 2569.33333-2569.66666 MHz
EBS Channel JB3: 2569.66666-2570.00000 MHz
EBS Channel JC1: 2570.00000-2570.33333 MHz
EBS Channel JC2: 2570.33333-2570.66666 MHz
EBS Channel JC3: 2570.66666-2571.00000 MHz
EBS Channel JD1: 2571.00000-2571.33333 MHz
EBS Channel JD2: 2571.33333-2571.66666 MHz
EBS Channel JD3: 2571.66666-2572.00000 MHz
* * * * *
    (iii) Upper Band Segment (UBS): The following channels shall 
constitute the Upper Band Segment:

BRS Channel KH1: 2614.00000-2614.33333 MHz.
BRS Channel KH2: 2614.33333-2614.66666 MHz.
BRS Channel KH3: 2614.66666-2615.00000 MHz.
EBS Channel KG1: 2615.00000-2615.33333 MHz.
EBS Channel KG2: 2615.33333-2615.66666 MHz.
EBS Channel KG3: 2615.66666-2616.00000 MHz.
BRS Channel KF1: 2616.00000-2616.33333 MHz.
BRS Channel KF2: 2616.33333-2616.66666 MHz.
BRS Channel KF3: 2616.66666-2617.00000 MHz.
BRS Channel KE1: 2617.00000-2617.33333 MHz.
BRS Channel KE2: 2617.33333-2617.66666 MHz.
BRS Channel KE3: 2617.66666-2618.00000 MHz.
BRS Channel 2: 2618-2624 MHz or 2156-2162 MHz.
BRS Channel 2A: 2618-2624 MHz or 2156-2160 MHz.
BRS/EBS Channel E1: 2624-2629.5 MHz.
BRS/EBS Channel E2: 2629.5-2635 MHz.
BRS/EBS Channel E3: 2635-2640.5 MHz.
BRS/EBS Channel F1: 2640.5-2646 MHz.
BRS/EBS Channel F2: 2646-2651.5 MHz.
BRS/EBS Channel F3: 2651.5-2657 MHz.
BRS Channel H1: 2657-2662.5 MHz.
BRS Channel H2: 2662.5-2668 MHz.
BRS Channel H3: 2668-2673.5 MHz.
EBS Channel G1: 2673.5-2679 MHz.
EBS Channel G2: 2679-2684.5 MHz.
EBS Channel G3: 2684.5-2690 MHz.
* * * * *

[FR Doc. E9-23330 Filed 9-25-09; 8:45 am]
BILLING CODE 6712-01-P