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Educational Broadband Corporation EBS Filing Freeze Waiver Order

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Released: November 8, 2013

Federal Communications Commission

DA 13-2146

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of Applications of
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EDUCATIONAL BROADBAND
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File No. 0005690754, 0005690755
CORPORATION
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For New Educational Broadband Service Stations
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)

MEMORANDUM OPINION AND ORDER

Adopted: November 7, 2013

Released: November 8, 2013

By the Deputy Chief, Broadband Division, Wireless Telecommunications Bureau:

I.

INTRODUCTION

1.
In this Memorandum Opinion and Order, we deny the request of Educational Broadband
Corporation (“EBC”) for a waiver of the filing freeze on new Educational Broadband Service (EBS)
applications, and direct dismissal of its applications for four D-group EBS channels in Madison,
Tennessee on the A-group channels in Lauderdale, Tennessee.

II.

BACKGROUND

2.
2500-2690 MHz Band Generally. In developing regulatory policies in the 2500-2690
MHz band over the last several decades, the Commission has been cognizant of this band’s potential to
host a variety of services. In 1963, the Commission established the Instructional Television Fixed Service
(“ITFS”) in the 2500-2690 MHz band,1 envisioning that it would be used for transmission of instructional
material to accredited public and private schools and colleges and universities for the formal education of
students.2 In 1983, in response to the demand for additional spectrum for delivery of video entertainment
programming to subscribers, the Commission re-allotted eight ITFS channels (the E and F channel
blocks) and associated response channels for use by the Multipoint Distribution Service (“MDS”).3 In
conjunction with this re-allotment, the FCC permitted ITFS licensees to lease “excess capacity” on their
facilities to commercial entities.4

1 See Educational Television, Docket No. 14744, Report and Order, 39 FCC 846 (1863) (MDS R&O), recon. denied
39 FCC 873 (1964) (ETV Decision).
2 See Amendment of the Commission’s Rules With Regard to the Instructional Television Fixed Service, the
Multipoint Distribution Service, and the Private Operational Fixed Microwave Service; and Applications for an
Experimental Station and Establishment of Multi-Channel Systems, Report and Order, 48 Fed. Reg. 33873, 33875 ¶
9 (1983) (1983 R&O) (citing ETV Decision, 39 FCC 846, 853 ¶ 25.).
3 See Amendment of Parts 2, 21,74 and 94 of the Commission’s Rules and Regulations in regard to frequency
allocation to the Instructional Television Fixed Service, the Multipoint Distribution Service, and the Private
Operational Fixed Microwave Service, Gen Docket No. 80-112 and CC Docket No. 80-116, Report and Order, 94
FCC 2d 1203 (1983) (First Leasing Decision).
4 Id. at 1206-07 ¶ 4.

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DA 13-2146

3.
In April 2003, the Commission proposed new technical rules and a new band plan for
ITFS and MDS spectrum (changing the service names to EBS and Broadband Radio Service (“BRS”),
respectively). At the same time, it implemented a filing freeze with respect to all applications for new
BRS and EBS licenses, as well as for major modifications of those licenses, which would permit the
orderly and effective resolution of issues in the BRS/EBS proceeding.5 In August 2003, the Commission
modified the freeze by permitting the filing of applications for new BRS licenses and major modifications
of those licenses.6 The Commission also permitted the filing of applications for major modifications of
EBS licenses, but still maintained the filing freeze with respect to applications for new EBS licenses.7 On
June 10, 2004, the Commission adopted new rules that initiated a fundamental restructuring of the 2500-
2690 MHz band, which would provide both existing EBS and BRS licensees and potential new entrants
greater flexibility to encourage the highest and best use of spectrum domestically and internationally. 8 In
2008, the Commission sought comment on how to license unassigned EBS spectrum.9 Under the current
band plan, the A, B, C, D, and G channel groups are EBS channels, while the E, F, and H channel groups
are BRS channels, although there are some EBS licensees that hold grandfathered E and F channels.
4.
Educational Broadband Corporation License Application. EBC, a 501(c)(3) nonprofit
corporation, provides educational broadband service to schools in Madison and Lauderdale, Tennessee.10
Madison and Lauderdale, located next to each other in western Tennessee, are described by EBC as rural
and “somewhat depressed” areas, as evidenced by the high rate of free and subsidized lunch programs,
where 80-90 percent of students receive free or subsidized school lunches.11 EBC reports that a large
percentage of students, by some estimates are as high as 50 percent, do not have internet access at home.12

5 See NPRM and MO&O, 18 FCC Rcd at 6811 ¶ 226, 6825 ¶ 260.
6 See Amendment of Parts 1, 21, 73, 74 and 101 of the Commission’s Rules to Facilitate the Provision of fixed and
Mobile Broadband Access, Educational and Other advanced Services in the 2150-2162 and 2500-2690 Bands.
Second Memorandum Opinion and Order
, WT Docket No. 03-66, 18 FCC Rcd 16848 ¶ 1 (2003) (Second MO&O).
7 Id.
8 See Amendment of Parts 1, 21, 73, 74 and 101 of the Commission’s Rules to Facilitate the Provision of fixed and
Mobile Broadband Access, Educational and Other advanced Services in the 2150-2162 and 2500-2690 MHz Bands.
Report and Order and Further Notice of Proposed Rulemaking, WT Docket No. 03-66, 19 FCC Rcd 14165 (2004)
(BRS/EBS R&O and FNPRM).
9 See Amendment of Parts 1, 21, 73, 74 and 101 of the Commission’s Rules to Facilitate the Provision of Fixed and
Mobile Broadband Access, Educational and Other Advanced Services in the 2150-2162 and 2500-2690 MHz Bands,
Third Order on Reconsideration and Sixth Memorandum Opinion and Order and Fourth Memorandum Opinion and
Order and Second Further Notice of Proposed Rulemaking and Declaratory Ruling,
WT Docket No. 03-66, 23 FCC
Rcd 5992, 6060-6068 ¶¶ 180-204 (2008) (Second FNPRM).
10 File No. 0005690754, Exhibit A: Request for Waivers and Public Interest Statement (filed Mar. 11, 2013)
(Madison Waiver Request) at 1; File No. 0005690755, Exhibit A: Request for Waivers and Public Interest
Statement (filed Mar. 11, 2013) (Lauderdale Waiver Request) at 1. EBC provides broadband service to Alexander
Elementary School, Jackson Central-Merry High School, Jackson Careers & Technology Magnet Intermediate
School, Lane Technology Magnet Elementary School, Lincoln Magnet School for Mathematics, Madison Academic
High School, and Whitehall Enhanced Option Community Elementary School in the Madison market. See Required
Notification of Construction, File No. 0004894013, Demonstration of Substantial Service (filed Sep. 29, 2011).
EBC provides broadband service to Andrew Jackson Intermediate School, Arlington International Leadership
School, and I.B. Tigrett Middle School in the Lauderdale market. See Required Notification of Construction, File
No. 0004918561, Demonstration of Substantial Service (filed Oct. 20, 2011).
11 Madison Waiver Request at 2; Lauderdale Waiver Request at 2.
12 Madison Waiver Request at 2; Lauderdale Waiver Request at 2.
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DA 13-2146

Without internet access at home, students must compete for lab time at school, thus straining the schools’
existing bandwidth capacity.13
5.
EBC operates EBS Station WLX817 on the G-group channels in Madison, Tennessee and
Station WLX621 on the G-group channels in Lauderdale, Tennessee.14 EBC became the licensee of
Station WLX817 on October 30, 2010 when the Commission approved the assignment of Station
WLX817 from Lane College, located in Jackson, Tennessee, to EBC.15 EBC then executed a Long Term
De Facto Lease Agreement, leasing WLX817’s excess capacity to N-1 Communications, Inc.16 After N-1
Communications entered into receivership, however, EBC executed a new Long Term De Facto Lease
Agreement (“Madison Lease Agreement”), leasing WLX817’s excess capacity to Wisper, LLC, a local
internet service provider that serves rural areas of western Tennessee.17 EBC then became the licensee of
Station WLX621 on July 15, 2011 when the Commission approved the assignment of WLX621 from
Trenton Special School District, located in Trenton, Tennessee, to EBC.18 EBC then executed another
Long Term De Facto Lease Agreement (“Lauderdale Lease Agreement”), leasing WLX621’s excess
capacity to Wisper, LLC.19 EBC reports that Wisper has built out more than 30 new tower sites for
Stations WLX817 and WLX621.20
6.
EBC is applying for the D-group channels in Madison and the A-group channels in
Lauderdale, the only EBS channels available in those markets.21 The remaining EBS channels in both
markets are licensed to EBS-qualified entities and then leased to a commercial operator.22 Thus, EBC
asks the Wireless Telecommunications Bureau (“Bureau”) to permit it to operate on the D-group channels
in Madison, Tennessee with reference points identical to those of EBC’s Station WLX817 (G-group
channels)23 and on the A-group channels with reference points identical to those of EBC’s Station
WLX621 (G-group channels) in Lauderdale, Tennessee.24 Because it has tower sites under lease with the

13 Madison Waiver Request at 2; Lauderdale Waiver Request at 2.
14 Madison Waiver Request at 1; Lauderdale Waiver Request at 1.
15 File No. 0004436710 (filed Oct. 29, 2010, consented to and consummated Oct. 30, 2010).
16 File No. 0004449917 (filed Nov. 12, 2010, granted Nov. 13, 2010).
17 File No. 0005110789 (filed Mar. 19, 2012, granted Mar. 21, 2012).
18 File No. 0004776074 (filed June 22, 2011, consented to and consummated July 15, 2011).
19 File No. 0005110789 (filed Mar. 19, 2012, granted Mar. 21, 2012).
20 Madison Waiver Request at 1; Lauderdale Waiver Request at 1.
21 Madison Waiver Request at 2; Lauderdale Waiver Request at 2.
22 In Madison, the A-group channels (Station WLX819) are licensed to Freed-Hardeman University and leased to
Clearwire; the B-groups channels (Station WLX818) are licensed to Lambuth University and leased to Clearwire;
the C-group channels (Station WNC986) are licensed to Jackson State Community College and leased to Clearwire;
and the G-group channels (Station WLX817) are licensed to EBC and leased to Wisper. See File No. 0005690754,
Exhibit A. In Lauderdale, the B-group channels (Station WNC201) are licensed to Cooter Reorganized School
District R-IV (B-group channels) and leased to Clearwire; the C-group channels (Station WLX617) are licensed to
Armorel School District #9 and leased to Clearwire; the D-group channels (Station WLX618) are licensed to South
Pemiscot District R-V and leased to Clearwire; and the G-group channels (Station WLX621) are licensed to EBC
and is leased to Wisper. File No. 0005690755, Exhibit A.
23 Madison Waiver Request at 2.
24 Lauderdale Waiver Request at 2.
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DA 13-2146

ability to expand throughout both market areas, EBC pledges to provide substantial service for both
channel groups in a “very brief period of time.”25
7.
EBC reports that for the past two years, it has spent “a very large amount of time meeting
with various schools” in Madison and Lauderdale to determine how best to meet their needs.26 Through
these meetings, EBC learned that two new developments within western Tennessee showed a “large
need” for additional bandwidth: a new student laptop program where schools issue laptops to students and
a new electronic testing program (voluntary this year, mandatory next) where students will be tested only
electronically.27 EBC stresses that neither of these programs were in place at the time EBC entered into
the Madison or the Lauderdale Lease Agreements.28 Although EBC has the ability to recapture some of
its spectrum capacity under both the Madison and Lauderdale Lease Agreements, it states that it cannot
satisfy the bandwidth needs for these new uses in either Madison or Lauderdale even if it recaptured all
22.5 megahertz of spectrum from both WLX817 and WLX621 because the concentration of users within
and near schools would exceed the existing bandwidth capabilities at those locations.29 And, EBC argues,
recapturing this spectrum would distract EBC from its current educational mission.30
8.
EBC’s applications were listed on public notice as accepted for filing on March 13,
2013.31 On April 16, 2013, the Catholic Television Network (“CTN”) and the National EBS Association
(“NEBSA”), nonprofit organizations that represent a large segment of the EBS community, jointly
opposed EBC’s waiver requests for both Madison and Lauderdale.32 They argue that EBC should wait
with other interested applicants for any application opportunity that arises following the Commission’s
“white space” decision, (WT Docket No. 03-66) where the Commission will decide on a scheme to
license the vacant and available EBS spectrum.33 They also argue that there is no Commission precedent
that makes educational needs alone a valid basis for a waiver seeking permanent licenses.34 EBC urges
the Bureau to disregard CTN’s and NEBSA’s opposition because they lack standing.35

III.

DISCUSSION

9.
As a preliminary matter, we will consider the objection filed by CTN and NEBSA as an
informal objection filed under Section 1.41 of the Commission’s Rules, which does not require

25 Madison Waiver Request at 2; Lauderdale Waiver Request at 2.
26 Madison Waiver Request at 1; Lauderdale Waiver Request at 1.
27 Madison Waiver Request at 1-2; Lauderdale Waiver Request at 1.
28 Madison Waiver Request at 1; Lauderdale Waiver Request at 1.
29 Madison Waiver Request at 2; Lauderdale Waiver Request at 2.
30 Madison Waiver Request at 2; Lauderdale Waiver Request at 2.
31 See Wireless Telecommunications Bureau Market-Based Applications Accepted for Filing, Report No. 8537,
Public Notice (rel. Mar. 20, 2013) at 3.
32 Objection to Applications and Waivers, National EBS Association and Catholic Television Network (filed Apr.
16, 2013) (“CTN/NEBSA Objection”).
33 CTN/NEBSA Objection at 1.
34 CTN/NEBSA Objection at 3.
35 Reply to Objection to Applications and Freezes, Educational Broadband Corporation (filed Apr. 30, 2013).
4

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standing.36 Thus, we decline to address EBC’s argument that CTN and NEBSA lack standing to object to
its waiver requests.
10.
As explained above, to enable it to apply for additional EBS spectrum, EBC seeks
waivers of the filing freeze on new EBS applications and waivers of the electronic filing requirements.
To receive a waiver under the Commission’s Rules, EBC must show that (i) the underlying purpose of the
rule(s) would not be served or would be frustrated by applying it to EBC’s case, and that a grant of its
waiver request would be in the public interest; or (ii) in view of unique or unusual factual circumstances
of the its case, application of the rule(s) would be inequitable, unduly burdensome or contrary to the
public interest, or that it has no reasonable alternative.37
11.
With respect to the electronic filing requirement contained in Section 1.913(b) of the
Commission’s Rules, we observe that the Commission’s electronic Universal Licensing System (ULS) is
not currently configured to accept applications such as the one submitted by EBC. We therefore conclude
that, in light of these circumstances, application of the rule would be inequitable and contrary to the
public interest because it would be unfair to reject an application for failure to file electronically when
electronic filing capability is not available. We therefore grant EBC a waiver to permit manual filing of
its applications.
12.
We find that EBC has not justified a waiver of the filing freeze because it has not shown
an immediate need for the requested spectrum. EBC argues that because of its unique factual
circumstances, it is contrary to the public interest to apply the EBS filing freeze to its case.38 EBC states
that because Madison and Lauderdale are rural, somewhat depressed areas, more than 50 percent of
students do not have internet access at home; thus, most students must access the internet from school.39
Since the schools adopted the laptop program and the electronic testing requirement, however, the schools
will have insufficient capacity to meet these new demands on their networks—EBC states that even the
schools’ fiber networks will strained under these new demands.40 EBC argues that if the D-group
channels in Madison and the A-group channels in Lauderdale are licensed to it, it can help solve this
problem because it has tower sites under lease in both Madison and Lauderdale with the ability to expand
throughout the Madison and Lauderdale areas.41 EBC also argues that it did not know of these new
requirements when it entered into either the Madison or Lauderdale Lease Agreements.42 EBC argues
that a grant of its waiver requests is in the public interest because additional educational spectrum in rural
Tennessee would further the goals of the National Broadband Plan, would not harm any other party, and
would provide a more balanced opportunity for K-12 to have access to educational spectrum.43 Also,
EBC argues, a grant of its waiver requests is in the public interest because the filing freeze frustrates a
licensee’s ability to grow.44

36 See 47 C.F.R. § 1.41.
37 47 C.F.R. § 1.925(b)(3).
38 Madison Waiver Request at 2-3; Lauderdale Waiver Request at 2-3.
39 Madison Waiver Request at 2; Lauderdale Waiver Request at 2.
40 Madison Waiver Request at 1-2; Lauderdale Waiver Request at 1-2.
41 Madison Waiver Request at 2; Lauderdale Waiver Request at 2.
42 Madison Waiver Request at 1-2; Lauderdale Waiver Request at 1-2.
43 Madison Waiver Request at 2-3; Lauderdale Waiver Request at 2-3.
44 Madison Waiver Request at 3; Lauderdale Waiver Request at 3.
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13.
Although we are sympathetic to the needs of students in Madison and Lauderdale, we
find that EBC has not met its burden to show that it is contrary to the public interest to impose the EBS
filing freeze. We find that it is not in the public interest to grant EBC’s waiver request because EBC
already has access to 22.5 megahertz of spectrum in both Madison and Lauderdale through Stations
WLX817 and WLX621, respectively; EBC is leasing “excess capacity” to Wisper, a commercial provider
of internet services; and EBC has not shown that it has a need for additional spectrum or that additional
spectrum would meet its claimed needs.
14.
We find that it is not in the public interest to waive the EBS filing freeze and the
electronic filing requirement because EBC is licensed to operate four EBS channels in Madison (Station
WLX817) and four EBS channels in Lauderdale (Station WLX621). As mentioned above, in 2003, the
Commission implemented a filing freeze on all new EBS applications. Since that time, we have granted a
waiver of the filing freeze to only two entities, Northern Michigan University (“NMU”)45 and Stratus
Wave Communications (“Stratus Wave”).46 In both of those instances, neither NMU nor StratusWave
could use EBS spectrum because all of the EBS channels, in their respective areas, were vacant,
precluding them not only from holding an EBS license, but also from pursuing other options such as
leasing excess capacity from other licensees, seeking an license assignment or transfer, or pursuing a
partitioning or disaggregation agreement.47 Here, EBC is already become an EBS licensee in Madison
when it was assigned Station WLX817 and in 2011 in Lauderdale when it was assigned Station WLX621.
Because EBC already holds two EBS licenses, (the G-channel groups in both Madison and Lauderdale),
22.5 megahertz of spectrum in each area, we are not persuaded that EBC needs additional spectrum to
meet the educational needs of the schools. Many EBS licensees are able to meet their educational needs
with only one channel group. EBC’s claims that it needs additional spectrum because of the new student
laptop program and electronic testing program are not adequately supported. Meanwhile, unlike EBC,
many EBS-eligible entities have not been able to gain access to EBS spectrum at all.
15.
We also find that it is not in the public interest to waive the filing freeze because EBC is
leasing the “excess capacity” of Stations WLX817 and WLX621 to Wisper, a commercial provider of
broadband services. We cannot say that EBC’s situation is unique or unusual because the Commission
contemplated that educational licensees would need additional capacity and ensured that EBS licensees
would have the right to recapture additional capacity to meet increased educational needs.48 The right of
EBS licensees to recapture educational spectrum is designed to allow EBS licensees to obtain additional
capacity and plays an important role is maintaining the traditional educational role of EBS.49 We would
expect that licensees such as EBC that needed additional capacity would take advantage of their right to
recapture additional spectrum. EBC’s claim that recapturing spectrum from Wisper would “distract”
from its educational mission is not explained and is insufficient to justify a waiver. EBC also fails to
explain how licensing the D-group channels (22.5 megahertz of spectrum) in Madison and the A-group
channels in Lauderdale (22.5 megahertz of spectrum) would solve the capacity problem of the schools. If
the needs of the schools cannot be met with the 22.5 megahertz of spectrum from the G-group channels,
which are leased to Wisper, how can those needs to be met with the 22.5 megahertz of spectrum from the
D-group channels (in Madison) and from the A-group channels (in Lauderdale)? Nowhere in its waiver

45 Application of the Board of Trustees of Northern Michigan University, Memorandum Opinion and Order, 23
FCC Rcd 11832 (2008) (“NMU MO&O”).
46 Gateway Telecom LLC d/b/a StratusWave Communications, Memorandum Opinion and Order, 22 FCC Rcd
15789 (2007) (“StratusWave MO&O”).
47 NMU MO&O, 23 FCC Rcd at 11834 ¶ 5; StratusWave MO&O, 22 FCC Rcd at 15794 ¶ 12.
48 See 47 C.F.R. § 27.1214.
49 See BRS/EBS R&O and FNPRM, 19 FCC Rcd at 14234 ¶ 181.
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request does EBC indicate that to meet the needs of the schools it intended to use both the D-group and
the G-group channels in Madison and the A-group and the G-group channels in Lauderdale.

IV.

CONCLUSION AND ORDERING CLAUSES

16.
For the reasons discussed above, we grant EBC’s request for waiver of the electronic
filing requirement in Section 1.1913(b) of the Commission’s Rules, but deny EBC’s request for waiver of
the filing freeze that was imposed by the Commission on new EBS applications in the Commission’s
April 2003 NPRM and MO&O. We direct dismissal of EBC’s Applications.
17.
Accordingly, IT IS ORDERED, pursuant to Section 4(i) of the Communications Act of
1934, as amended 47 U.S.C. § 154(i), and Section 1.925(b)(3) of the Commission’s Rules, 47 C.F.R. §
1.925(b)(3), that the waiver requests filed by Educational Broadband Corporation on March 11, 2013 in
connection with File Nos. 0005690754 and 000560755 ARE GRANTED with respect to the request for
waiver of Section 1.913(b) of the Commission’s Rules but are otherwise DENIED.
18.
IT IS FURTHER ORDERED, pursuant to Section 4(i) of the Communications Act of
1934, as amended, 47 U.S.C. § 154(i), and Section 1.934(d)(2) of the Commission’s Rules, 47 C.F.R.
§ 1.934(d)(2), that the licensing staff of the Broadband Division SHALL DISMISS the applications filed
by Educational Broadband Corporation on March 11, 2013 for new Educational Broadband Service
stations (File Nos. 0005690754 and 000560755).
19.
These actions are taken under delegated authority pursuant to Sections 0.131 and 0.331 of
the Commission’s Rules, 47 C.F.R. §§ 0.131, 0.331.
FEDERAL COMMUNICATIONS COMMISSION
John J. Schauble
Deputy Chief, Broadband Division
Wireless Telecommunications Bureau
7

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