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
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 treat 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
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.
Late EBS Renewal Applications
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
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