In EBS vote, FCC denies special treatment for public broadcasters

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Public broadcasters are reacting with disappointment to an FCC decision last week that will give cellular providers access to a swath of spectrum previously reserved for use by educational entities.

The FCC’s Wednesday vote, carried by the Republican majority of commissioners, affects the Educational Broadband Service spectrum, a portion of the 2.5 GHz band that the commission designated for noncommercial use in 1962. About 50 institutions affiliated with public broadcasters hold licenses to EBS spectrum.

Though only noncommercial entities can hold EBS licenses, the FCC allows them to lease up to 95 percent of the spectrum for commercial use. Many public broadcasters lease most of their EBS spectrum to Sprint, with some earning millions of dollars annually from the agreements.

Some pubcasters use their remaining EBS spectrum for services including emergency communications, educational content for schools and wireless broadband internet services in rural areas. Others don’t use it at all.

The FCC hasn’t accepted new applications for EBS licenses since 1995. It began its reexamination of the EBS last year with the release of a Notice of Proposed Rulemaking. At the time, Republican Chairman Ajit Pai said he was “bullish” about “making more spectrum available for the mobile services consumers increasingly rely upon.”

In reply comments and meetings with FCC staff, public broadcasters urged the commission to preserve EBS for use by educational entities and to give them priority in applying for EBS spectrum in the future. But commissioners stuck to their agenda.

“Today, the Commission majority takes a major step toward freeing up critical mid-band spectrum for 5G,” Pai said in a statement following the Wednesday vote. “At long last, we remove the burdensome restrictions on this band, allowing incumbents greater flexibility in their use of the spectrum, and introduce a spectrum auction that will ensure that this public resource is finally devoted to its highest-valued use.”

EBS advocates in public broadcasting argue that by auctioning off EBS spectrum, the FCC will put educational entities at a disadvantage as they find themselves unable to compete with deep-pocketed cellular companies. Many observers expect that Sprint will end up acquiring much of the newly auctioned EBS spectrum.

“There will be high hurdles for stations,” said APTS COO Lonna Thompson. “If it comes to a mutually exclusive application and competitive bidding, we certainly couldn’t compete in those situations. … I see this as a bit of an erosion of educational services.”

Barrier to innovation?

The FCC’s decision met with concern and objections from the agency’s two Democratic commissioners. “This order turns its back on the schools and educational institutions that have made the 2.5 GHz band their home since 1962,” said Commissioner Jessica Rosenworcel in a statement. “Today the FCC takes the innovative effort to infuse this band with learning opportunities — an initiative that dates back to the Kennedy Administration — and reverts to uninspired and stale commercial spectrum policy.”

And the decision left Commissioner Geoffrey Starks “with grave concerns about the future of this program,” he wrote.

Even the Department of Education had urged the FCC to limit EBS licenses to educational entities. In a June 7 letter to the FCC, Jim Blew, assistant secretary for planning, evaluation and policy development, wrote that “maintaining current EBS eligibility requirements and preventing the reassignment or transfer of licenses to non-EBS eligible entities will keep educational institutions in the driver’s seat and ensure that the spectrum will be developed while prioritizing the needs of the students, families, and the local community.”

“The idea that some future new nonprofit educational entrants could be precluded from entering is damaging to the long-term health of the industry and doesn’t reflect the innovative uses that people are going to look at.”

Tom Axtell, GM, Vegas PBS

In Las Vegas, Vegas PBS uses EBS to provide instructional content to local schools via digital channels. The station is also exploring using EBS to provide internet access to low-income populations, said GM Tom Axtell.

Axtell said he also foresees opportunities for more uses of EBS in conjunction with ATSC 3.0 as that broadcast technology is introduced, including communications channels for first responders and an extension of Vegas PBS’ broadcast reach into rural areas. But he fears that the FCC has hampered such innovation.

“The idea that some future new nonprofit educational entrants could be precluded from entering is damaging to the long-term health of the industry and doesn’t reflect the innovative uses that people are going to look at,” Axtell said.

The FCC’s decision did include one provision that many public broadcasters welcomed: Native tribes in rural areas will get the first chance to apply for new EBS spectrum. “We conclude that opening a priority filing window for rural Tribal Nations will provide Tribal Nations with an opportunity to obtain unassigned EBS spectrum to address the communications needs of their communities and of residents on rural Tribal lands, including the deployment of advanced wireless services to unserved or underserved areas,” the FCC said in its Report and Order.

Looking ahead, the FCC’s decision could raise a question for current EBS licensees: Should they sell their licenses? “We’d always look at a sale, but I don’t think we’d sell all of it,” Axtell said. 

South Carolina ETV, another pubcaster with EBS spectrum, “does not intend to make any changes in its EBS plans and operations,” said VP of Engineering Mark Jahnke in an email. “It will continue to maintain its licenses and work with its excess capacity lessee, Sprint, to maximize service to the schools and child development centers using EBS-based services throughout the state, as well as service to the citizens of the state in general.”

Todd Gray, a lawyer with Gray Miller Persh LLP, offered a warning to EBS users who might want to sell.

“My guess is that some stations will probably be interested in exploring the possibility of a sale,” said Gray, who represented public broadcasters in meetings with the FCC regarding EBS. “But it will certainly be our advice that they proceed cautiously — partly because, at this point, no one knows what these things will really be worth in this new environment.”

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