Information

This section will provide the latest news and information about EBS related activities.  This includes FCC or other related activities/topics that are of interest to NEBSA Members, the EBS industry, and/or EBS affiliates.

News

Update on EBS Lease Terms

October 17, 2008

Posted by: Todd Gray, NEBSA Counsel

NEBSA and the Wireless Communications Association (WCA) have now reached a compromise position on an issue of dispute relating to EBS lease terms arising out of the ongoing FCC rule making process.

The issue is how the FCC should tread old EBS (then ITFS) leases that were entered into 10, 15 or more years ago but which, according to their terms, may not even have started to run yet (meaning that they could continue to bind EBS licensees to these obsolete deals for many years yet into the future).

In the Fourth Memorandum Opinion and Order issued by the FCC earlier this year, the FCC declared that leases entered into prior to the effective date of the new rules (i.e. January 10, 2005) were limited to running no more than 15 years from their date of execution.

WCA sought reconsideration of that decision, arguing that the FCC had previously allowed EBS leases to run from a "start date" that might be other than the date of execution, and that the FCC had no right to involve itself in these contractual issues in any event.  NEBSA opposed reconsideration, urging that some accommodation needed to be made to prevent these old leases from running virtually forever.

WCA and NEBSA have now filed a joint pleading (which you can access on the FCC's website at

 http://fjallfoss.fcc.gov/prod/ecfs/retrieve.cgi?native_or_pdf=pdf&id_document=6520175869

 in which they have both compromised to reach what we regard as a middle ground on this issue.  The settlement which we urge the FCC to adopt is as follows:

The Commission will no longer recognize an EBS lease entered into prior to January 24, 1999 [the effective date of the FCC's original two-way rules for EBS] as a grandfathered lease lawfully supporting the use of excess capacity for non EBS purposes beyond the 15th anniversary of the execution date of that lease, except where: (a) such lease in fact commenced prior to March 20, 2008 and documentary evidence of such commencement exists (including evidence that the lessor has been paid amounts due upon or after commencement): or (b) both parties to the lease have agreed in writing to its continuation as a grandfathered lease through a specified expiration date, which expiration date may be no later than March 20, 2023.

If you don not have an EBS lease still in effect that was signed prior to January 24, 1999, this matter does not affect you.  If you DO have such an old EBS lease, and there is any question whether the term has begun to run, and what the end of the term is, you should keep your eye on this proceeding.  If the FCC adopts this compromise, you will need to determine how it applies to your situation.

EBS Licenses

Late EBS Renewal Applications

10/02/2007

This message was sent via e-mail to all of the NIA list serve members on October 2nd, and is to alert you to the fact that NIA has joined with CTN, WCA, Clearwire, Sprint Nextel, and several other operators in a filing with the FCC that with the FCC that will hopefully defuse the dispute relating to late EBS renewal applications.

You will recall that Sprint Nextel earlier this year sought reconsideration by the FC of the grant of 41 late EBS renewal applications, and it has also opposed a considerable number of additional EBS late renewal applications.  Among other things, Sprint Nextel objected to having adjacent EBS licensees (and their lessees) "lose" GSA area to stations the licenses for which were expired on January 10, 205, when the new rules on GSA formations came into effect.

The issue, including whether the FCC granting late renewals actually caused any loss of GSA to any other licensee, has generated considerable controversy.  The issue has put much of the EBS community at odds with Sprint Nextel, and also, very unfortunately, has pitted EBS licensee against EBS licensee.

The NEBSA/NIA board's regulatory committee came to believe that this issue was increasingly problematic and that a settlement needed to be made -- to get us over the conflict and corrosive environment it was creating, to establish a clear and settled basis for determining GSAs so that licensing, leasing and eventually white space auctions could proceed with certainty, and to enable the FCC comfortably to continue its practice of leniency in EBS licensing matters.

NEBSA/NIA, CTN and the various other industry players concluded that the only fair way of resolving the issue over disputed GSAs, and therefore favorably resolving many if not most of the disputed renewal applications, would be to have the FCC clarify its approach to GSA formation, such that licenses that were expired on January 10, 2005 , but are later reinstated by the FCC through a late renewal process, would not "split footfalls" with adjacent licenses, but would be granted GSAs composed only of those areas that do not overlap the 35 mile radius circles of adjacent licenses.

The exception would be those reinstated licenses that had already been granted (i.e., the original 41 late renewals), which already have full GSAs.  These licenses would retain their full GSAs, splitting overlap areas with adjacent licensees.

A copy of the settlement filing is attached.  We hope that the FCC will move favorably on it in the very near future.

Todd D. Gray

Counsel, National EBS/ITFS Association

Todd D. Gray

Attorney at Law

1200 New Hampshire Avenue, NW Suite 800

Washington, DC 20036-6802

T 202-776-2571

F 202-776-4571

tgray@dowlohnes.com

www.dowlohnes.com