      EBS
  Deadline
  Extended

BRS / EBS Substantial Service Requirements
and Safe Harbors

What you need to know to protect your license:

BRS and EBS licensees must make a showing of “substantial service” no later than May 1, 2011 (the date that renewal applications for site-based BRS licenses are due.) The FCC has proposed that new BRS licenses (i.e., those granted after Auction 86) must make a showing of substantial service within four years from the date of issue of the license

LBA offers full engineering capabilities for BRS, EBS, and wireless broadband systems!

Substantial Service Goals

ensure prompt delivery of service to rural areas
prevent stockpiling or warehousing of spectrum
promote investment in and rapid deployment of new technologies and services
promote the availability of broadband to all Americans, including broadband technologies for educators
ensure that the spectrum is as fungible, tradable, and marketable as possible

What is Substantial Service?

“Substantial service” is defined as service which is sound, favorable, and substantially above a level of mediocre service which just might minimally warrant renewal. The FCC has implemented substantial service requirements for other wireless services.

Although the definition of substantial service is generally consistent among wireless services, the factors the FCC considers when determining if a license has met the standard vary among services. For a BRS/EBS licensee or lessee to provide substantial service, it must be providing actual service to customers or students – transmission of test signals and/or color bars by a BRS/EBS licensee or lessee that has no customers or students does NOT constitute substantial service

About the Rules:

Special rules apply to BTA authorization holders which will not be developed further here.

For the non-operating licensees, the discussion will be about tactical technical approaches to preserve licensed BRS/EBS spectrum at lowest capital and operating cost. This is to be accomplished by complying with the “Safe Harbor” provisions of FCC 27.14(o) by 1 May 2011.

Both EBS and BRS substantial service requirements apply inside their licensed coverage areas – generally a 35 mile radius unless truncated. The requirement is technology-neutral. The rules do not specify any transmission platform (such as WiMax), nor do they specify content (audio, video, data). Transmission may apparently be either one way or two way. The FCC does not specify any required duration of operation prior to 1 May 2011. They do require that actual service for “a customer or other person” (or students, for EBS) is being provided prior to 1 May 2011. No test patterns permitted!

Of the palate of “safe harbors”, the FCC has offered some that have specific guidelines, and others that are subjective and will require a “sell job” at the Commission. Further, in considering these type showings, the FCC will take “into consideration” past operations of the licensee on the relevant channels. Safe harbor showings using the options with specific metrics will be obviously safer.

Showings must be on a license-by-license basis. Thus, a licensee with a license covering three “H” channels need only implement a system on one of those channels. However, if the same licensee holds the channels on three different licenses (call signs), they must build out three parallel systems.

Safe Harbors

If a licensee meets the requirements of a “safe harbor,” the licensee has satisfied its substantial service obligation. All substantial service determinations are made on a license-by-license basis. The FCC has proposed to allow licenses to be combined for purposes of demonstrating substantial service in certain circumstances, but has not provided any guidance regarding those circumstances.

The requirements for EBS and BRS stations are substantially the same, except that EBS stations have additional “safe harbors” by showing:

• That it is providing educational services within its GSA,

• That it is serving an educational mission for an institution with enrolled students,

• That it exceeds the usage requirements of 27.1214.

We will not deal further with these, as compliance will be based upon realization of a mission-based plan.

A BRS or EBS licensee has provided "substantial service" by meeting any one of the following:

1. Construct permanent fixed point-to-point links (six per 1,000,000 licensed area pops),

2. Provide coverage to 30% of the licensed area population for mobile or fixed point-to-multipoint operations,

3. Provide service to “rural” areas (county or equal with under 100 pops/square mile) or to areas with limited telecommunications service access,

• Mobile service: 75% of the geographic area of at least 30% of the rural areas in the licensed area,

• Fixed service: one end of one permanent link in at least 30% of the rural areas in the licensed area,

4. Provide specialized or technologically sophisticated service not requiring a high level of coverage for consumer benefit,

5. Provide service to niche markets outside the service of other licensees.

Leases

An EBS or BRS licensee may be deemed to provide substantial service through a leasing arrangement if the lessee is providing substantial service using a BRS/EBS safe harbor (it’s unclear whether substantial service absent a safe harbor would be acceptable.) But NOT under the special EBS safe harbor – only an EBS licensee (and not a lessee) may meet that safe harbor. The EBS licensee must also be otherwise in compliance with its educational requirements (including its programming requirements.)

Options

Options 1, 2, and 3 are reasonably well defined, and, properly executed and documented, should yield a substantial service showing that readily passes FCC scrutiny. Options 4 and 5 are much more subjective, as are the additional EBS options cited earlier. Success of these options at the FCC is not assured and will require careful guidance from legal counsel to maximize the chance of acceptance.

There seem to be no rules on the time duration of substantial service facilities or the maintenance of service over them. However, the general tone of the rules leads one to believe that the FCC is looking for more than the ephemeral. It is our belief that the physical facilities should be sufficiently durable to support a customer for a commercially useable period of time. We would be skeptical of two antennas sitting in windows on a pile of books and pointed across an alley. Yet, there is certainly no need for “carrier class” construction if a couple of antennas on five foot masts on two roofs, held down with sandbags, would do the job.

Generally, no prior FCC approval will be needed to deploy EBS/BRS facilities within the PSA, so long as approved equipment is used and interference limits are observed. However, the installations must raise no NEPA or FAA issues. Licensees are subject to triggering antenna tower registration, RF hazard, and historic district/tribal concerns. Obviously, it would be advised to avoid all these issues in the interest of low cost and speed in a safe harbor deployment.

About the Options:

For most licensees, the overarching concern is to provide qualifying services while incurring minimal construction and operating costs. In most cases, licensees will have no infrastructure in the market, and may have little or no internal resources to plan and execute the deployment of a qualifying system.

A key initial decision, then, will be whether to use internal resources to design and deploy the system, or to retain a qualified third party to integrate a satisfactory system.

The unique geographical and regulatory nature of any licensee’s service area will have a lot to do with the particular safe harbor solution chosen. However, notwithstanding its technical nature, there must be “a customer”. So, there must be a service that a customer will subscribe to. Often, that service will require interface and control with the “outside world”. What will that be and how much will it cost? So, your business case for supporting a safe harbor is very important, and will likely drive your choice as much as technical factors, and should be well thought out with your attorney before proceeding.

Time factors are also strong drivers. The K.I.S.S. “keep it simple” principle is extremely relevant since less than a year is available to implement safe harbor solutions. Because of long lead times, options requiring tower construction, even rental of tower company space, may be out. In many jurisdictions, zoning and permitting may consume many months and require detailed facility planning. Tower deliver and erection will often also require months of delay. This is all expensive, less so on the frontend with tower company rentals, but either way requiring a long term commitment.

One approach used by some carriers avoids real estate and permitting issues entirely. The antenna or satellite dish merely sits on the ground or a roof, with no permanent attachment, being held down with sandbags or special water filled mounts.

There are three principal deployment scenarios that cover the requirements for substantial service safe harbors. They are:

1. Fixed point to mobile customer (the mobile case),

2. Fixed point to multipoint customer (the home service case), and

3. Fixed point to fixed point link (the backhaul case).

While all are valid service models, each is not always suitable for safe harbor implementation for time and budget reasons. Fundamentally, a 35 mile radius PSA covers some 3800 square miles. For simplicity, we assume uniform population distribution. Thus, a safe harbor would require coverage to 30% or 1140 square miles. Line of sight coverage to that 30% area ideally requires a single tower about 200 feet high, assuming flat ground and no troublesome coverage obstructions. These problems exist and make the real world solution somewhat more difficult!

Scenario 1 provides service to randomly located mobile units from a base station on a central tower(s). It also requires that the signal be suitably received from the mobile unit. The range from the mobile unit transmitter is significantly less than what is possible from the tower transmitter. As a practical matter, the tower coverage is limited to about 3 – 5 miles from the mobile. Assuming the best, that is only 78 square miles.

To build out that 30%, as many as 15 base stations would be required! The good news is that the fifteen towers (or rooftops) only have to be around 50 feet high. Of course, the scene could be a bit more favorable where the population is more concentrated. In any event, this is likely a significant and costly undertaking, and unlikely to interest a safe harbor-seeking licensee. We will not develop it further.

Scenario 2 provides service to randomly located fixed customer units from a base station on a central tower. Since the customer unit is fixed, has coverage parity with the base, and is typically elevated above a home roof, a single 100 foot tower is adequate to serve the required 30%, and population density is much less a variable.

The advantages of this approach are simplicity of concept, and likely ease of identifying and deploying one or more customer units in the coverage area. Further, customer equipment is inexpensive.

There are a number of potential negatives to consider. It requires space on a tower, preferably rental space as opposed to constructing a tower, or a high rooftop location. In most jurisdictions today there are at least some permitting and zoning requirements, and formal architectural and engineering design may be required. Since full circle coverage is needed, the base station equipment and antennas are sophisticated and not cheap. There is also the likelihood of bearing a significant monthly lease cost for the tower or roof space.

Scenario 3 provides service between two fixed permanent base units. So long as the required number of links is constructed, there is wide latitude as to the length and location of the links. Two inexpensive units mounted on home rooftops 20 feet above ground can communicate over 10 miles. In many cases, the installation will be so unobtrusive and simple, that no permitting and zoning will be encountered (of course, they must meet FCC NEPA and other compliance requirements).

Several examples show the versatility of this scenario.

• A link might connect two office networks, and be installed in windows facing each other across an interstate highway.

• A farmer might subscribe to several links bringing video back to the farm office from cameras monitoring feed lots around the farm,

• A town might subscribe to several links feeding the internet to WiFi access points located in public parks,

• A university licensee might elect to deploy a number of links supporting on campus security cameras, in support of its educational mission.

This approach has the advantage of great flexibility, inexpensive equipment, and fast deployment. The configuration flexibility also makes it easier to find appropriate customers. Because equipment will typically be installed on customer premises, there is no monthly site rental cost.

If there is a negative, it is the possibility that multiple links and customer relationships may need ongoing attention. With six links per million required, a PSA with 3 million people could require 18 links. On the other hand, a PSA of 150,000 population would only require a single link. Even a populous area, including a “rural area” might be served by a single link!

For most situations, our analysis is that the permanent link concept of Scenario 3 will be the most feasible and cost effective for BRS/EBS licensees to deploy. This discussion, in the name of brevity, has left out many practical, technical, an regulatory fine points. Each case requires thorough professional legal and technical analysis and planning to ensure substantial service compliance.

Process

The FCC has indicated it will issue a Public Notice describing procedures for filing substantial service showings. If a licensee meets a safe harbor, the FCC will deem the licensee to have offered substantial service with that license. If the licensee does not meet a safe harbor, the FCC will review the showing on a case-by-case basis. A licensee will not be required to meet a safe harbor if it can otherwise demonstrate substantial service to the public. Demonstration of the public interest and prior service are both factors the FCC will consider when evaluating whether substantial service has been satisfied on a case-by-case basis.

Consequences

Keep in mind that, whatever you do, your showing of substantial service must be complete by 1 May 2011, or your license is toast! The clock is ticking…

***The deadline for EBS has been extended until November 1, 2011. The deadline for BRS is unchanged.***

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BRS / EBS Substantial Service Requirements and Safe Harbors