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Folks:
At the request of the National EBS Association (NEBSA, formerly the
National ITFS Association) and the Catholic Television Network (CTN), the
FCC has extended the comment and reply comment deadlines in the EBS White
Space licensing rule making proceeding to September 22, 2008 and October 22, 2008, respectively. You may recall that the comment deadline
had been this coming Monday, July 7, 2008.
The extension gives us all time for what we hope can be full
consideration of the many difficult issues in the proceeding.
A
summary of and link to the FCC’s Second Further Notice of Proposed
Rulemaking on white space licensing is provided below.
NEBSA’s goal in this process is to try to help the EBS
community to come to a consensus view on how the FCC should award licenses
to fill in the remaining vacant EBS channels and areas, and then try to get
“buy in” by the commercial community and other possible stakeholders. We hope by the comment deadline in
September to be able to propose a specific licensing scheme that is
supported by all interested parties, in the hope that the FCC can adopt it
quickly and substantially without change.
Discussions have been underway for
some time among various industry parties on these issues, including weekly
meetings of NEBSA’s regulatory policy committee. We think there is general agreement on
one issue – that we should try to get all
important segments of the “industry” – both EBS and commercial operators –
to come up with a white space licensing proposal that everyone can live
with and that we can try to sell to the FCC as a package. If we end up in bitter disagreement over
how the FCC should allocate white space licenses, we’re all likely to be
unhappy with the result.
NEBSA believes that we should try
to avoid auctions to the greatest degree possible. We believe that educators are generally
not going to be able to pursue the purchase of EBS spectrum in an auction
setting, and the results of any auction are therefore more likely to be
dictated by commercial interests or speculators operating behind the
scene. The result would be a massive
investment of time, energy and money by educators all over the country,
much of which is wasted, and years and years of effort before the process
is completed. Moreover, and perhaps
more fundamentally, NEBSA believes that educators should not be required to
“purchase” their spectrum from the government.
There is really only one way of
avoiding auctions for new EBS licenses – coming up with an FCC licensing
process that avoids mutually exclusive applications, because the law only
requires auctions where there are mutually exclusive applications.
NEBSA thus believes the focus of
attention should be on how to structure an FCC process for licensing EBS
white space while avoiding auctions to the greatest degree possible – by
limiting the circumstances in which there could be mutually exclusive
applications and, where such applications are filed, providing time and
incentive for educators to “settle” their completing applications before
they actually face auctions.
A variety of thoughts have already
been circulating out there on this.
One of these approaches contemplates undertaking a first round of
licensing where vacant spectrum is allocated only to current license
holders, as extensions of their current service areas on their existing
channels. Only after that process is
completed would the FCC undertake an open process for any spectrum that
remains unlicensed by inviting applications from
any other parties. In the event of
mutually exclusive applications, the FCC would provide a period for
multiple applicants to settle. If
they did not, the FCC would go to auction.
There is a legitimate concern among
some that allowing existing EBS licensees to “maximize” their service areas
might look like a spectrum grab by incumbents to the exclusion of potential
new licensees. That is certainly not
NEBSA’s intent, but NEBSA views a “free for all”
application process, followed by nearly 2500 separate auctions (493 BTAs x 5 channel groups), to be an unworkable
process. The question is how we can
reconcile all these concerns.
Several members of NEBSA’s regulatory policy committee have expressed
willingness to discuss these issues with NEBSA members and other interested
parties by phone. They can be
contacted as follows:
Steve Gorski,
Network for Instructional TV, at 703-860-9200
Lynn Rejniak,
University of
South Florida, at
813-974-5878
Of course, people can also call me.
Regards,
Todd D. Gray
NIA Regulatory Counsel
Dow Lohnes,
PLLC
1200
New Hampshire Avenue, NW
Washington,
DC 20036
202-776-2571
Summary
of Second Further Notice of Proposed Rule Making
The FCC’s decision, which is 110
pages, can be found on the FCC's website at http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-08-83A1.pdf. For those interested in the discussion
of “white space” licensing, auctions, etc., that portion of the document
begins at paragraph 181 on page 76.
The FCC’s inquiries regarding participation in competitive bidding (ie, auctions) are in paragraphs 189 through195. Inquiries regarding other methods of
assigning vacant EBS spectrum are in paragraphs 196 through 204.
Generally, the FCC is seeking to
develop a record on a range of options to license currently vacant EBS
spectrum. The FCC addresses options
for “white space” licensing, to include competitive bidding (ie, auctions for licenses) as currently required by the
Communications Act if more than one applicant applies for the same license
(called “mutual exclusivity”), but the FCC also asks about possible
mechanisms to avoid mutual exclusivity, thus getting around the statutory
requirement that there be an auction to decide who gets the disputed
license.
As to EBS auctions generally, the
FCC is concerned that many eligible educators may not be able to
participate in competitive bidding, or may be reluctant or unable to devote
time, personnel and money to an auction.
Therefore, FCC asks various threshold questions:
n
Do EBS eligible entities in general have authority to
bid for spectrum licenses?
n
If so, can they bid outside of their respective
jurisdictions (for example, can a school district bid for a license in a
BTA where part or all of the BTA is not within the district?)
n
If not, can eligible entities form consortia or other
joint entities to apply and bid, subject to working out joint use or
splitting up of licenses?
As to the operation of auctions
themselves, if conducted, the FCC asks a variety of questions about
structuring the auctions and makes some tentative proposals:
n
Eligibility to bid -- should the FCC prohibit
participation by nonprofit entities that are not either publicly supported
or accredited educational institutions?
Obviously, doing so would restrict many current and active EBS
licensees (public broadcasters and other community-based non-profit
educational entities, as well perhaps as governmental agencies that are not
schools) from participating.
n
What size should be the spectrum blocks to be
auctioned? All EBS spectrum in an area in one auction (ie,
all available A, B, C, D and G channels)?
Particular channel groups (including both LBS/UBS and MBS)? LBS/UBS spectrum in a group separate from
MBS? All LBS, all UBS and all MBS in
a block?
n
What should be the size of the geographic area covered
by each license – BTAs? Something else?
n
Should there be a limitation on the amount of spectrum
in any given area that an applicant can bid on?
n
The FCC proposes to conduct any auctions using its usual
rules, including rules relating to “designated entities” (ie, preferences or credits for certain entities, such
as small businesses, necessitating defining what that would be in this
case), cash deposits in order to enter bidding, minimum opening bids and
reserve prices, collusion rules (prohibiting collaboration among educators
in the bidding process), etc.
The FCC also asks about other
possible mechanisms for licensing spectrum that would not result in
mutually exclusive applications and therefore avoid the requirement of
going to auction:
n
Generally, the FCC asks for comments on options here –
it asks us to provide a detailed description of how the option would
work.
n
One option might be to issue one license per state to a
“State agency designated by the Governor to be the spectrum manager for the
entire State.” The FCC goes into
great length about how such an option would work, and what would happen if
a State fails to apply for the license or loses the license after it is
awarded.
n
Another option might be to require prospective
applicants to submit applications to “certified frequency coordinators” who
would review and certify whether the applications comply with the rules
and, if so, in the event of conflicts in applications, certify the “earlier
filed” application as the winner.
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