[Federal Register Volume 86, Number 34 (Tuesday, February 23, 2021)]
[Rules and Regulations]
[Pages 10839-10844]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-00051]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 1

[WT Docket No. 18-120; FCC 20-183; FRS 17359]


Transforming the 2.5 GHz Band

AGENCY: Federal Communications Commission.

ACTION: Dismissal of petitions for reconsideration.

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SUMMARY: In this document, the Federal Communications Commission 
(Commission) addresses the Petitions for Reconsideration (Petitions) 
filed by National Congress of American Indians (NCAI) and Schools, 
Health & Libraries Broadband Coalition and others (SHLB et al.), asking 
that the Commission reinstate the eligibility restrictions it 
eliminated in the 2.5 GHz Report and Order, published on October 25, 
2019, and create a window for additional educational use of the band. 
The Commission dismisses the Petitions in part and, alternatively and 
independently, denies the other two petitions. The Hawai'i Broadband 
Initiative filed a Petition for Reconsideration, which it subsequently 
requested leave to withdraw. The Commission grants Hawai'i Broadband 
Initiative's request to withdraw its petition.

DATES: The Commission adopted the Order on Reconsideration denying the 
Petitions for Reconsideration on December 9, 2020.

FOR FURTHER INFORMATION CONTACT: John Schauble, Deputy Chief, Broadband 
Division, Wireless Telecommunications Bureau, (202) 418-0797 or email 
<a href="/cdn-cgi/l/email-protection#e0aa8f888eceb383888195828c85a0868383ce878f96"><span class="__cf_email__" data-cfemail="357f5a5d5b1b66565d5440575950755356561b525a43">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Order 
on Reconsideration (Reconsideration Order), WT Docket No. 18-120; FCC 
20-183, adopted on December 9, 2020 and released on December 17, 2020. 
The full text of the Reconsideration Order is available electronically 
via the FCC's Electronic Document Management System (EDOCS) website at 
https://www.fcc.gov/edocs or via the FCC's Electronic Comment Filing 
System (ECFS) website at http://www.fcc.gov/ecfs. (Documents will be 
available electronically in ASCII, Microsoft Word, and/or Adobe 
Acrobat.) Alternative formats are available for people with 
disabilities (braille, large print, electronic files, audio format), by 
sending an email to <a href="/cdn-cgi/l/email-protection#9bfdf8f8aeabafdbfdf8f8b5fcf4ed"><span class="__cf_email__" data-cfemail="ed8b8e8ed8ddd9ad8b8e8ec38a829b">[email protected]</span></a> or calling the Commission's Consumer 
and Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-
0432 (TTY). The 2.5 GHz Report and Order, WT Docket No. 18-120, FCC 19-
62, released July 11, 2019 published at 84 FR 57343 on October 25, 
2019.

Synopsis

I. Introduction

    1. The 2.5 GHz band (2496-2690 MHz) is the single largest band of 
contiguous spectrum below 3 gigahertz. Too much of this spectrum, which 
is prime mid-band spectrum for next generation mobile operations, 
including 5G, has lain fallow for more than twenty years. In the 2.5 
GHz Report and Order, the Commission transformed the regulatory 
framework governing the band in order to move this spectrum into the 
hands of those who will provide service to Americans across the 
country, and particularly in rural and Tribal areas. The Commission 
replaced an outdated regulatory regime, developed in the days when 
educational TV was the only use envisioned for this spectrum, with one 
that not only gives incumbent users more flexibility in how they use 
the spectrum, but also provides opportunities for additional entities 
to obtain access to unused 2.5 GHz spectrum. Among other things, the 
Commission established a Tribal Priority Window to address the acute 
problem of lack of access to wireless communications services in rural 
Tribal areas, and it decided to hold an overlay auction thereafter for 
remaining unassigned spectrum rights.
    2. Three parties sought reconsideration of various aspects of the 
order. The National Congress of American Indians (NCAI) seeks 
reconsideration of the Commission's decision to focus the Tribal 
Priority Window opportunity on rural Tribal land. The Schools, Health & 
Libraries Broadband Coalition and others (SHLB et al.), meanwhile, ask 
that the Commission reinstate the eligibility restrictions the 
Commission eliminated in the 2.5 GHz Report and Order and create a 
window for additional educational use of the band And the

[[Page 10840]]

Hawai'i Broadband Initiative filed a Petition for Reconsideration, 
which it subsequently requested leave to withdraw.
    3. The Commission grants the Hawai'i Broadband Initiative's request 
to withdraw its petition, and the Commission dismisses in part and, 
alternatively and independently, denies the other two petitions. In 
doing so, the Commission affirms the framework it adopted to make 
available the 2.5 GHz band quickly by eliminating outdated legacy 
regulations that inhibited full use of the band and establishing 
flexible-use rules that will allow commercial providers to use this 
large swath of prime mid-band spectrum to provide 5G and other advanced 
services to American consumers.

II. Background

    4. The Commission established a Tribal Priority Window to address 
the acute problem of lack of access to wireless communications services 
in rural Tribal areas. The Tribal Priority Window represents a 
particularly important and unprecedented opportunity to address the 
communications needs of rural Tribal communities, many of which lack 
meaningful access to wired and wireless communications services. 
Successful applicants in the Tribal Priority Window will be able to 
acquire licenses for all available 2.5 GHz spectrum over their rural 
Tribal lands--for free, which should afford sufficient bandwidth to 
offer broadband wireless service to these communities.
    5. The Commission established criteria for the Tribal Priority 
Window that would ``provide the most effective and targeted way to 
achieve the Commission's goal of closing the digital divide in Tribal 
lands.'' Specifically, the Commission included four basic requirements 
for Tribes and Tribal entities seeking to take advantage of the Tribal 
Priority Window: (1) Eligibility is limited to federally recognized 
American Indian Tribes and Alaska Native Villages or entities owned and 
controlled by federally recognized Tribes or a consortium of such 
Tribes: (2) the license must be for Tribal land, as defined in part 54 
of the Commission's rules; (3) the geographic service area requested 
must be rural, meaning not part of an urbanized area or urban cluster 
area with a population equal to or greater than 50,000; and (4) the 
eligible Tribal entity must have a local presence on the rural Tribal 
land for which it is applying.\1\
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    \1\ Licenses obtained in the Tribal Priority Window will operate 
as overlay licenses subject to protecting incumbent operations 
within the relevant geographic area.
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    6. The Commission observed that, ``[b]ecause the problem of access 
to wireless communications services is most acute in rural areas . . . 
the purpose of the Tribal priority window should be to promote service 
to areas that are currently unserved or underserved.'' The Commission 
previously has reported that ``the population of individuals living on 
Tribal lands is disproportionately skewed toward rural, rather than 
urban, areas.'' As the Commission found in the 2.5 GHz Report and 
Order, ``individualized policies tailored to specific deployment 
issues, such as increasing access to spectrum over unserved rural 
Tribal areas,'' honored the Commission's trust relationship with Tribal 
Nations. As such, the Commission established the Tribal Priority Window 
for rural Tribal lands that ``are not part of an urbanized area or 
urban cluster area with a population equal to or greater than 50,000.''
    7. Tribal land for purposes of the Tribal Priority Window consists 
of: Any federally recognized Indian Tribe's reservation, pueblo or 
colony, including former reservations in Oklahoma, Alaska Native 
regions established pursuant to the Alaska Native Claims Settlement Act 
(85 Stat. 688) and Indian Allotments, see Sec.  54.400(e), as well as 
Hawaiian Home Lands--areas held in trust for native Hawaiians by the 
state of Hawaii, pursuant to the Hawaiian Homes Commission Act, 1920, 
July 9, 1921, 42 Stat 108, et seq., as amended; and any lands 
designated prior to July 10, 2019, as Tribal Lands pursuant to the 
designation process contained in Sec.  54.412.
    8. As explained in the 2.5 GHz Report and Order, the Commission 
adopted the same general definition of Tribal land as set forth in part 
54 of its rules related to the Universal Service Fund. In addition to 
``on-reservation'' lands, the Commission also included off-reservation 
Tribal lands as eligible for the Tribal Priority Window if they were 
designated as Tribal lands prior to July 10, 2019 pursuant to the 
process set forth in Sec.  54.412 of its rules.
    9. After the Tribal Priority Window closes, any remaining 
unassigned 2.5 GHz spectrum will be made available for commercial use 
via competitive bidding, as the Commission found this to be the best 
way to assign spectrum quickly and efficiently for its highest-valued 
use. In seeking to modernize the 2.5 GHz band and make this valuable 
spectrum available expeditiously for a wide range of consumer uses, the 
Commission also determined that the original motivations for adopting 
restrictions on Educational Broadband Service (EBS) licenses were now 
obsolete. In the 2.5 GHz Report and Order, the Commission explained: 
``The circumstances that led to the creation of a dedicated educational 
service no longer exist. Substantial technological changes over the 
last 30 years enable any educator with a broadband connection to access 
a myriad of educational resources--a content distribution model that 
does not require dedicated educational spectrum licensed to educational 
institutions. . . . [T]oday there are a multiplicity of other sources 
of educational programming available to institutions with broadband 
connections. All of these factors support eliminating the eligibility 
restrictions at this time.''
    10. Meanwhile, only a handful of EBS licensees have deployed their 
own networks or use their EBS licenses in a way that requires dedicated 
spectrum. Instead, most licensees rely on lessees to deploy and operate 
broadband networks using their licensed spectrum, and they use the 
leases as a source for revenues or devices. In considering the 
arguments surrounding the former EBS eligibility restrictions, the 
Commission determined that its elimination would promote more efficient 
use of the spectrum, improve operators' ability to attract capital, 
make the spectrum more appealing for commercial operators to include in 
their long-term service plans, and better align these licenses with the 
flexible-use licensing policies used in similar spectrum bands. Based 
on the record, the Commission found that eliminating long-standing, but 
obsolete, eligibility restrictions on EBS licenses was the best way of 
ensuring that the band could be fully used for high-speed broadband 
services.
    11. For similar reasons, the Commission declined to establish a 
priority window for educational institutions. In the 2.5 GHz Report and 
Order, the Commission explained that an educational priority window 
``would be at odds with its other decisions to provide greater 
flexibility for more providers to make use of the 2.5 GHz band to offer 
high-speed broadband service to the public.'' An educational priority 
window raised the additional complication that mutually exclusive 
applications for licenses sought through such a window would need to be 
resolved through a system of competitive bidding, and that educational 
institutions in a majority of

[[Page 10841]]

states would likely be precluded from participating in such a 
process.\2\
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    \2\ 2.5 GHz Report and Order, 34 FCC Rcd at 5469-70, paras. 67-
68; see id. at 5471, para. 73 (concluding that ``a Tribal priority 
window is less likely to trigger mutual exclusivity in a significant 
number of license areas than a priority window for educational 
institutions'' because ``most rural Tribal lands areas will likely 
be associated with a single Tribal entity, whereas many localities 
have a wide variety of educational institutions that could have a 
local presence'').
    SHLB et al. argue that the Commission failed to address the use 
of a settlement window to resolve mutual exclusive applications. To 
the contrary, the Commission rejected the use of a settlement 
window, along with all the other alternatives suggested by the 
parties as possible means of avoiding mutual exclusivity, because it 
would not comply with the public interest test of section 
309(j)(6)(E) the Communications Act of 1934. See 2.5 GHz Report and 
Order, 34 FCC Rcd at 5470, para. 68 & n.195; id. at 5470, para. 68 
(rejecting all suggested alternatives to avoid mutual exclusivity, 
including, but not limited to, the examples listed in the text, as 
``inconsistent either with the Communications Act's requirement that 
the Commission use competitive bidding to resolve mutually exclusive 
applications or with the public interest test applicable to 
alternatives that avoid mutual exclusivity.'').
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    12. In its petition, NCAI supports the Commission's decision to 
establish a Tribal Priority Window but asks that the Commission: (1) 
allow non-rural Tribal lands to be eligible in the Tribal Priority 
Window, and (2) revise the applicable rules for defining eligible 
Tribal lands. SHLB et al. ask that the Commission reconsider its 
decisions to eliminate the educational eligibility restrictions and to 
not create an educational priority window.
    13. The Tribal Priority Window commenced on February 3, 2020 and 
lasted until September 2, 2020. In the Bureau Procedures Public Notice 
(PN), PN 35 FCC Rcd 308, the Wireless Telecommunications Bureau 
specified a simplified application process to allow for the inclusion 
of any waiver request(s) as part of a specific application--including a 
waiver of the Tribal land definition as applied in the Report and 
Order. A number of Tribes have filed applications availing themselves 
of this waiver mechanism to seek licenses for lands falling outside the 
Sec.  27.1204(b)(2) definition following release of the Bureau 
Procedures PN.\3\
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    \3\ See, e.g., File Nos. 0009056169 (Stockbridge Munsee 
Community), 0009133181 (Confederated Tribes of the Chehalis 
Reservation), 0009164208 (Duckwater Shoshone Tribe). Under the 
Commission's rules, waivers will be granted if it is shown that: (i) 
The underlying purpose of the rules(s) would not be served or would 
be frustrated by application to the instant case, and that a grant 
of the requested waiver would be in the public interest; or (ii) in 
view of the unique or unusual factual circumstances of the instant 
case, application of the rule(s) would be inequitable, unduly 
burdensome or contrary to the public interest, or the applicant has 
no reasonable alternative.
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III. Discussion

    14. It is well established that reconsideration ``will not be 
granted merely for the purpose of again debating matters on which the 
tribunal has once deliberated and spoken.'' Petitions for 
reconsideration that rely on arguments that have been fully considered 
and rejected by the Commission may be dismissed or denied. Both the 
NCAI and SHLB et al. petitions primarily repeat arguments that the 
Commission considered and rejected previously. The Commission fully 
considered the policy benefits of focusing on rural Tribal lands in the 
2.5 GHz Report and Order. And the Commission adopted the definition of 
Tribal lands contained in its part 54 rules. To the extent NCAI's 
petition reiterates already rejected arguments, it is procedurally 
improper, and the Commission dismisses the petition and otherwise deny 
it in its entirety.
    15. Regarding the SHLB et al. Petition, the Commission previously 
fully considered all the arguments raised therein, including whether an 
educational window or flexible use would be the best means of promoting 
broadband deployment, the likelihood of mutually exclusive applications 
if the Commission opened an educational window, and the distinctions 
between the Tribal Priority Window and any educational window. Since 
the petition merely repeats previously raised and rejected arguments, 
the petition is procedurally improper and dismissed. As a separate and 
independent ground for rejecting this argument, the Commission finds 
that in any event it lacks merit. SHLB et al. present no compelling 
argument that warrants reconsideration of the Commission's decision to 
make this spectrum available for flexible use nor to limit any priority 
application window to Tribal entities.
    16. In short, the Commission dismisses in part and denies both 
petitions for reconsideration. The Commission discusses each issue 
raised by the petitions in turn.
    17. First, the Commission finds that the NCAI petition provides no 
new facts or arguments that would provide a basis for reconsidering its 
decision to focus the Tribal Priority Window on rural but not other 
Tribal lands. In its comments, NCAI claimed that limiting the Tribal 
Priority Window, inter alia, would ``create separate classes of tribal 
governments, which is inconsistent with the intent of Congress.'' NCAI 
now repeats its argument that the trust relationship between federally 
recognized tribes and the Federal government ``applies equally to all 
federally recognized tribal nations, not just to certain sub-sets of 
tribal nations based on location of tribal lands.'' In other words, it 
repeats the same argument that the Commission already rejected. And for 
good reason. NCAI has failed to demonstrate that the Commission, in 
affording Tribes in this window an opportunity to obtain spectrum 
licenses over their rural Tribal lands, has failed to uphold any 
specific trust responsibility expressed by Congress. In contrast, the 
Commission does have a statutory responsibility to manage the radio 
spectrum and Congress has exhorted us to speed the deployment of 
broadband to all Americans in a reasonable and timely manner. In 
managing this important mid-band spectrum, the Commission continues to 
believe that an approach of targeting rural Tribal lands for the Tribal 
Priority Window, where the problem of access to wireless communications 
services is most acute,\4\ and subsequently offering overlay licenses 
for any remaining unassigned spectrum via a competitive bidding process 
is the most effective way to make this spectrum available for next 
generation wireless services. The Commission carefully considered how 
to make this spectrum available quickly to those able to deploy 
service, and determined that, while spectrum over urban areas should be 
made available via competitive bidding, the Commission would first make 
spectrum available over rural Tribal Lands for free to Tribal entities 
to help them meet the communications needs of these rural areas without 
the delay and cost of engaging in competitive bidding.
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    \4\ See 2.5 GHz Report and Order, 34 FCC Rcd at 5466, para. 56; 
see also Inquiry Concerning Deployment of Advanced 
Telecommunications Capability to All Americans in a Reasonable and 
Timely Fashion, 2020 Broadband Progress Report, 35 FCC Rcd 8986, 
9013, para. 47 (2020) (``Rural Tribal lands continue to lag behind 
urban Tribal lands, with only 52.9% of all Tribal lands in rural 
areas having deployment of both [fixed and mobile broadband] 
services, as compared to 93.1% of Tribal lands in urban areas.'').
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    18. Although NCAI claims that limiting rural lands to areas ``not 
part of an urbanized area or urban cluster area with a population equal 
to or greater than 50,000'' was arbitrary and prevents Tribes from 
serving more populated portions of their lands, focusing this spectrum 
opportunity on rural Tribal Lands is in furtherance of a specific 
policy goal of lowering the cost for Tribes to serve the unserved. 
Indeed, NCAI fails to explain its claim that the Commission's choice is 
unsupported. Further, NCAI does not offer a single example of a Tribe 
whose ability to

[[Page 10842]]

serve its Tribal lands is hampered by the limitation. NCAI's argument 
overlooks the fact that the underlying purpose of the Tribal Priority 
Window is ``to address the communications needs of their communities 
and of residents on rural Tribal lands, including the deployment of 
advanced wireless services to unserved or underserved areas.'' Focusing 
the Tribal Priority Window opportunity on rural Tribal lands not only 
satisfied this policy objective but also makes sense from a licensing 
perspective, as most of the spectrum over urban Tribal lands already is 
assigned and thus unavailable for licensing as part of the Window.\5\
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    \5\ Interested parties can use the 2.5 GHz Rural Tribal Priority 
Window mapping tool, available at https://www.fcc.gov/rural-tribal-window-updates, to see where eligible Tribal lands are located, 
which reservations contain urban lands, and where 2.5 GHz spectrum 
is licensed.
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    19. Moreover, the Commission regularly distinguishes between rural 
and non-rural areas in carrying out policy objectives--in its universal 
service rules, in its competition rules, and even in its spectrum-
bidding rules \6\--because the wide geographies and dispersed 
populations in rural areas merit a different policy response than the 
challenges faced in non-rural areas. The Commission has never before 
suggested that such differentiation impugns the sovereignty of the 
states nor its trust responsibilities to Tribes, and (as the Commission 
noted in the 2.5 GHz Report and Order) the Commission fails to see how 
such differentiation here could have such effects. The Commission also 
notes that its definition of what land would be considered ``rural'' is 
both administrable and objective--not something that requires us to 
make discretionary judgments about individual Tribes.
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    \6\ See, e.g., 47 CFR part 54, subpart G (Universal Service for 
Rural Health Care Program); 47 CFR 1.2110(f)(4) (rural service 
provider bidding credit); Modernizing Unbundling and Resale 
Requirements in an Era of Next-Generation Networks and Services, 
notice of proposed rulemaking, 85 FR 472, January 6, 2020, 34 FCC 
Rcd 11290, 11304-05 (2019) (proposing differing regulatory treatment 
depending on whether an area is a rural or not).
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    20. And to the extent that NCAI thinks this decision contravenes 
the Commission's 2000 Tribal Policy Statement (65 FR 41668), the 
Commission disagrees. There the Commission committed to working with 
Tribes ``to ensure, through its regulations and policy initiatives, and 
consistent with section 1 of the Communications Act of 1934, that 
Indian Tribes have adequate access to communications services.'' Making 
spectrum available over rural Tribal lands in the Tribal Priority 
Window before making remaining unassigned spectrum available via 
competitive bidding does exactly that; NCAI fails to show otherwise.
    21. Second, the Commission declines NCAI's request to use the 
Commission's definition of Tribal lands contained in its part 73 rules 
in lieu of the definition based on part 54. NCAI has not convinced us 
that the part 73 definition of Tribal lands (which includes off 
reservation trust lands) is more appropriate in this context than the 
part 54 definition.\7\ The part 73 definition was adopted for a 
completely different purpose than the Tribal Priority Window: i.e., to 
permit comparison between non-commercial educators applying for 
broadcast stations. By contrast, the Tribal Priority Window was adopted 
to encourage the provision of necessary communications services in 
rural areas and to provide federally recognized Tribes with direct 
access to unassigned 2.5 GHz spectrum over their own Tribal lands 
before making any remaining unassigned spectrum available to any 
eligible provider via competitive bidding. The Commission required the 
direct participation of Tribal governments, or entities owned and 
controlled by such Tribes, in the 2.5 GHz context to ensure that 
licensees would have the requisite authority over the deployment of 
facilities and service on their rural Tribal lands.
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    \7\ The Commission adopted the definition of ``Tribal lands'' 
almost verbatim from the part 54 universal service rules. Compare 47 
CFR 27.1204(b)(2), with id. Sec.  54.5, and id. Sec.  54.400(e). 
Although the Commission has extended ``Tribal lands'' in the 
universal service context to include certain off-reservation lands, 
the Commission notes that the Lifeline and high-cost programs serve 
a different purpose than the Tribal Priority Window--i.e., those 
programs award funding ``for the provision, maintenance, and 
upgrading of facilities and services.'' In other words, when 
targeting universal service funds, the Commission increases funding 
for rural Tribal areas because they (and off-reservation lands) face 
similar broadband deployment and adoption challenges. In contrast, 
the Tribal Priority Window is designed to provide federally 
recognized Tribes with direct access to spectrum over their own 
Tribal lands--as such, a narrower initial definition accompanied by 
a waiver process that contemplates possible expansion of Tribal 
lands in special circumstances is more appropriate.
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    22. The Commission nonetheless recognized that there may be 
exceptions to the general rule. That's why case-by-case waivers are 
available, effectively allowing for a result similar to designation of 
off-reservation lands in the specific context of applying for 
unassigned 2.5 GHz spectrum. Indeed, the Commission has received a 
number of waiver requests during the Tribal Priority Window to include 
certain off-reservation lands as Tribal lands. And this approach 
mirrors the Commission's approach in the context of spectrum auctions, 
excluding off-reservation lands from the definition of ``Tribal 
lands,'' requiring a winning bidder to provide a certification from a 
Tribal government in order to receive Tribal land bidding credits and 
entertaining waivers to include off-reservation lands within the scope 
of such bidding credits.
    23. Third, the Commission rejects NCAI's request to re-open the 
off-reservation designation process in Sec.  54.412 of the Commission's 
rules. Contrary to NCAI's claim, the Commission already addressed this 
issue by creating a waiver process that applicants can take advantage 
of to the extent they seek to include additional off-reservation lands 
as part of their applications. This case-by-case waiver process is not 
dissimilar from the designation procedure provided for in part 54. In 
circumstances where Tribes can show good cause to include as eligible 
off-reservation lands specifically for purposes of participation in the 
Tribal Priority Window, the waiver process provides an opportunity for 
them to do so. That waiver process was made part of the application 
procedures to allow Tribes to seek eligibility for off-reservation 
lands without delaying the Tribal Priority Window or unreasonably 
limiting the ability of Tribes to apply for this spectrum. More than 50 
such waivers were filed in the Tribal Priority Window, which closed on 
September 2, 2020.
    24. The Commission is not legally required to, and it sees no 
benefit in, reopening and starting anew a different process that would 
not only require Tribes to make additional filings but also delay the 
processing of all applications already filed during the Tribal Priority 
Window, including applications of those Tribes who properly sought 
eligibility for such off-reservation lands using the waiver process 
available to them in the Tribal Priority Window.
    25. Fourth, SHLB et al.'s suggestion that, were the Commission to 
maintain eligibility restrictions and adopt a separate priority window, 
most new educational licensees would choose to deploy their own 
networks, belies strong evidence in the record to the contrary. The 
Commission disagreed with this perspective in the 2.5 GHz Report and 
Order.
    26. To start, the vast majority of existing licensees, including in 
rural areas, have not deployed their own networks but instead lease to 
commercial providers. As of May 13, 2019, there were 2,087 active 
leases of EBS spectrum, compared with 2,193

[[Page 10843]]

licenses. In fact, SHLB et al.'s assertion that ``the record is replete 
with examples of EBS licensees offering service'' qualifies that 
assertion by acknowledging that they are offering service ``through the 
EBS leasing model.'' This ``EBS leasing model'' is not an example of 
EBS licensees providing service, but of EBS licensees merely leasing 
spectrum to a commercial provider; that the vast majority of EBS 
licensees chose to lease spectrum rather than use the spectrum to 
provide service is one of the very reasons the Commission concluded 
that liberating this spectrum and making it readily available for 
flexible use by providers--rather than engage in a delayed process that 
put the spectrum in the hands of hundreds of entities, with each of 
whom the service provider must negotiate a lease--was in the public 
interest.
    27. In fact, the instances that SHLB et al. identify where EBS 
licensees deployed their own networks are notable because of how rare 
they are. For example, SHLB et al. cite the self-deployment undertaken 
by Northern Michigan University (NMU), under a waiver of the EBS filing 
freeze. In granting the waiver, however, the Bureau noted: ``NMU is 
unique among EBS licensees--while most EBS licensees have not built 
their own facilities and have leased their spectrum to commercial 
providers, NMU has built and operates its own LTE broadband network 
that covers a significant portion of the rugged, underserved territory 
in Michigan's Upper Peninsula.'' Although SHLB et al. state that the 
Commission has granted seven waivers in the last six years to ``allow[ 
] educational entities access to EBS spectrum for the purpose of 
building wireless networks,'' these seven waivers cover only three 
entities (i.e., NMU, Kings County, CA, and Monterey County, CA), which 
further demonstrates the rarity of self-deployed systems. SHLB et al. 
also point to the interest in developing statewide broadband networks 
expressed by states such as Nebraska and Utah, but they fail to explain 
how such interest will result in actual deployment, given that much of 
the spectrum in more populated areas of those states is already 
licensed and used by commercial providers, in contrast with northern 
Michigan where the spectrum was mostly unassigned. In short, although 
NMU has shown itself to be a motivated educational institution with 
access to technical expertise, the Commission would expect most EBS 
licensees to act consistently with their behavior to date and lease 
spectrum to commercial providers if the Commission retained the former 
eligibility rules.
    28. In short, the Commission finds little support for the argument 
that educators are better positioned to deploy their own broadband 
networks in areas that are not served by commercial operators. Even in 
rural areas, that simply has not been the case. For example, the 
Wireless internet Service Providers Association (WISPA) explains that 
several WISPs ``have acquired EBS spectrum lease rights . . . to 
improve service to subscribers and/or expand service to new areas, in 
many cases to rural communities'' and lists examples of these WISPs. 
WISPA further argues that ``WISPs have shown time and again that they 
can deploy licensed, lightly licensed, and unlicensed fixed wireless 
services in rural areas--and do so cost-efficiently with unencumbered 
access to licensed 2.5 GHz spectrum.'' And SHLB et al. demonstrate the 
success of commercial operators (rather than educational institutions) 
in building out this spectrum: ``WISPs like BeamSpeed, LLC, Evertek, 
Inc., Redzone Wireless, Rise Broadband, SiouxLan Communications, and 
Watch Communications have `invested many millions of dollars' in 
networks that `utilize leased [EBS] spectrum to provide high-quality, 
competitive broadband services to consumers, often in more rural areas 
of the United States where broadband options are limited.' '' SoniqWave 
Networks LLC also intends to participate in the upcoming auction and is 
planning deployments using spectrum it has acquired in the secondary 
market from former EBS licensees.
    29. In sum, SHLB et al. have failed to present any new facts or 
arguments that would cause us to change the Commission's conclusion 
that the best approach to accelerate deployment and enable a wide range 
of potential uses for consumers nationwide is to license this spectrum 
for flexible use and eliminate the transaction costs (both money and 
time) associated with leasing by educational institutions.\8\
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    \8\ SHLB et al.'s argument that EBS licensees should be given 
additional access to free 2.5 GHz spectrum in a priority window 
because E-Rate funding cannot be used to support off-campus or home 
use of E-Rate supported infrastructure (SHLB et al. Petition at 5) 
is unpersuasive; this fact is not new. See 47 U.S.C. 254(h)(1)(B), 
(h)(2). SHLB's argument ignores the fact that this statutory 
restriction was in place when the vast majority of EBS licensees 
chose to lease the spectrum, rather than self-deploy networks.
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    30. Fifth, the Commission rejects SHLB et al.'s continued reliance 
on a flawed study in support of maintaining the eligibility 
requirements. The Commission previously found this study to be premised 
on an unrealistic deployment model. Not only did the Commission find 
that history and experience discredit the study's assumption that, in 
unserved rural areas, EBS licensees would self-deploy rather than seek 
to enter into a lease agreement with a commercial carrier; the 
Commission also found problems with the study's assumption that, in 
rural served areas, licensees would be able to provide broadband 
service at $15/month.\9\ Further, the Commission notes that, while the 
Catholic Technology Network (CTN) and National Educational Broadband 
Service Association (NEBSA) supported the existing eligibility 
requirements, they did not view the proposal around which the SHLB 
Economic Study was based as workable. Finally, the Commission found the 
study to undervalue the potential benefits of an auction rather than a 
direct assignment to educational and/or tribal entities on numerous 
counts.\10\ Generation of revenue is not

[[Page 10844]]

the only measure of value of an auction; \11\ society benefits when 
spectrum available for flexible use for next-generation wireless 
services and assigned to those who are most likely to use it themselves 
to deploy. The Commission therefore finds that making the remaining 
unassigned spectrum available via competitive bidding is in the public 
interest and is more likely to expeditiously put this spectrum to its 
highest and best use for the benefit of all Americans.
---------------------------------------------------------------------------

    \9\ SHLB et al. claim that the Commission wrongly characterize 
the SHLB Economic Study as assuming a $15/month price for both 
served and unserved areas. SHLB et al. Petition at 7-8. The 
Commission recognizes that the $15/month price applies only to the 
served areas and that the price is assumed to be $35/month in the 
unserved areas. The Commission finds it unrealistic, however, that 
educational providers could sustain service to rural areas at the 
$15/month price. The Commission found no evidence in the record of 
such low prices except in the case of Mobile Citizen and Mobile 
Beacon, which have leases with Sprint for spectrum licenses in 
``major and more densely populated markets.'' Furthermore, the 
Commission finds that the $35/month price in unserved rural areas 
would be unrealistic because it assumes that educational providers 
would self-deploy in those areas, which is contrary to the 
Commission's history and experience with the 2.5 GHz band. History 
has shown that the vast majority of EBS licensees simply do not 
provide service--at any price--but, instead, lease the spectrum. The 
Commission is unpersuaded that repeating history will provide a 
different result.
    \10\ The SHLB et al. claim that the Commission mischaracterizes 
the SHLB Economic Study as purely county-based. While the Commission 
recognizes that the deployment model of the educational license 
holders is not county-based, its concern is that the SHLB Economic 
Study assumes that for winners of a potential auction, the 
``commercial deployment model only considers deployment to entire 
counties.'' This is because the SHLB Economic Study rules out any 
deployment to a county with partial deployment or change in plan 
offerings by non-educational providers, which the Commission finds 
unreasonable. The SHLB et al. also claim that the Commission's 
belief in the potential for price reduction after the auction via 
cost reduction is misguided because ``competitive dynamics are the 
key driver of reduced wireless prices.'' While competition is an 
important determinant of wireless prices, the Commission has also 
recognized the roles of costs. For example, the Commission 
recognized substantial cost reductions from spectrum combinations in 
the T-Mobile/Sprint transaction that would allow lower prices. 
However, the Commission does not assert that cost ``primarily'' 
determines price as claimed by the petitioners.
    \11\ The Petitioners also argue any resulting lower price would 
still not match the price educational institutions could provide, 
but this is based on the $15/month price the Commission discounts 
for rural areas. In general, based on the historic success of 
spectrum auctions at the FCC and the ability of the overlay auction 
format to rationalize the irregular patchwork of EBS license areas 
with often complicated licensing arrangements, the Commission 
believes that auctioning the fallow 2.5 GHz spectrum will provide 
the most benefit to the American consumers.
---------------------------------------------------------------------------

    31. Sixth, the Commission previously stated its reasons for 
establishing the Tribal Priority Window but not a broad window for 
educational institutions. Specifically, the Commission concluded that 
Tribes have an interest in obtaining access to 2.5 GHz spectrum to 
serve their rural Tribal lands that is greater than and distinct from 
that of educational institutions, based on: (1) The unique status of 
federally recognized Tribes and the nature of the Commission's federal 
trust responsibility, (2) the right of Tribes to set their own 
communications policies in the lands they govern, (3) the unique and 
significant obstacles to offering service in Tribal areas, and (4) the 
fact that Tribes have not previously had access to this spectrum. The 
SHLB et al. fail to address these distinctions.\12\
---------------------------------------------------------------------------

    \12\ The SHLB et al. acknowledge that the Commission 
``attempt[ed] to distinguish the reasons for the Tribal priority 
window from the more general educational priority windows.'' Id. at 
16. Rather than address the reasons for distinguishing Tribal 
entities, the SHLB et al. cite a handful of submissions in the 
record to contend that the Commission's ``conclusion that many 
educators might not be positioned to provide broadband is 
unsupported in fact and in the record.'' As discussed above and in 
the 2.5 GHz Report and Order, however, the Commission's experience 
with the EBS service and its review of the record indicate that only 
``a small fraction of educational institutions'' have expressed an 
interest in providing broadband service in rural areas, which does 
not provide a sufficient basis for establishing an educational 
priority window.
---------------------------------------------------------------------------

    32. In turn, the Commission finds that SHLB et al.'s advocacy for a 
narrower educational priority window analogous to the Tribal Priority 
Window, or an educational priority window limited to New Channel Group 
3 (old Channels G1, G2, and G3), would not address the Commission 
stated deployment objectives. The Tribal Priority Window is readily 
distinguishable from any form of educator window. Moreover, their 
suggestion of creating an educational priority window limited to New 
Channel Group 3, comprised of 17.5 megahertz of spectrum, would not 
only suffer from the same concerns the Commission has previously 
identified, but also would result in inefficient allocation of mid-band 
spectrum. Under that proposal, only the 17.5 megahertz of non-
contiguous spectrum in New Channel Group 3 would be assigned and 
licensed differently than the adjacent commercial Broadband Radio 
Service spectrum. The result would be that educators would end up only 
with a narrow spectrum band that they might not be able to use fully 
because of the need to protect adjacent channel commercial operations. 
In contrast, in the auction context, potential bidders can take into 
consideration the availability of and ability to aggregate spectrum to 
make the best use of this smaller Channel Group.
    33. For these reasons, the Commission affirms its conclusion in the 
2.5 GHz Report and Order that, ``[g]iven the time and effort and delay 
that would be involved in establishing and running [an educational] 
priority window, and the likelihood that such a window for all 
educational institutions would result in having to auction the spectrum 
anyway, the Commission finds that moving directly to flexible use and 
open eligibility would be the most expeditious method of making 
spectrum available to provide broadband service in rural and 
underserved areas, consistent with the Commission's statutory objective 
to ensure `the development and rapid deployment of new technologies, 
products, and services for the benefit of the public, including those 
residing in rural areas, without administrative or judicial delays.' '' 
The Commission therefore denies the SHLB et al. Petition.

IV. Ordering Clauses

    34. Accordingly, it is ordered pursuant to sections 4(i), 4(j), 
303(r), and 309(j) of the Communications Act of 1934, as amended, 47 
U.S.C. 154(i), 154(j), 303(r), and 309(j), as well as Sec.  1.429 of 
the Commission's rules, 47 CFR 1.429, that the Petitions for 
Reconsideration filed by the National Congress of American Indians and 
jointly by the Schools, Health & Libraries Broadband Coalition; 
Consortium for School Networking; State Educational Technology 
Directors Association; American Library Association; National Digital 
Inclusion Alliance; Nebraska Department of Education; Utah Education 
and Telehealth Network; Council of Chief State School Officers; A 
Better Wireless; and Access Humboldt on November 25, 2019, are 
dismissed to the extent specified in this Order on Reconsideration and, 
alternatively and independently, denied as specified herein.
    35. It is further ordered, pursuant to section 405 of the 
Communications Act of 1934, as amended, and Sec.  1.429 of the 
Commission's rules, 47 CFR 1.429, that the Request for Withdrawal of 
Petition for Reconsideration filed by the Hawaii Broadband Initiative 
on March 30, 2020, is granted, and the Petition for Reconsideration by 
the Hawaii Broadband Initiative on November 25, 2019, is dismissed.

Federal Communications Commission.
Marlene Dortch,
Secretary, Office of the Secretary.

    Editorial note: This document was received for publication by 
the Office of the Federal Register on January 4, 2021.

[FR Doc. 2021-00051 Filed 2-22-21; 8:45 am]
BILLING CODE 6712-01-P


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