A recent decision by the Federal Communications Commission reflected the accuracy of the observation of Tip O'Neill, the late speaker of the U.S. House of Representatives, that all politics are local. The FCC decision also reflected the corollary that colleges and universities and other educators can be an extremely formidable lobbying force in Washington, even in the face of a competing government and industry-backed outcome, when mobilized and coordinated around a unified position.
The issue at the FCC involved a proceeding to overhaul the Instructional Television Fixed Service (ITFS) band plan and technical rules and determine whether educational institutions, public TV stations, churches, and nonprofit entities would continue to exclusively control the ITFS spectrum. This is the only portion of the radio spectrum that for 40 years has been used by educators for the delivery of instructional programming. The FCC was looking into opening the band for commercial use because the ever-increasing and competing demands for spectrum have outpaced these finite resources.
The large portion of spectrum allocated for ITFS has such favorable technical characteristics--and is therefore so valuable--that it has been dubbed "beach-front property." Since the early 1960s, it has been licensed only to educators. For the past two decades, however, the FCC has encouraged ITFS licensees to lease excess ITFS channel capacity for commercial purposes to further the policy goals of encouraging full use of the spectrum and promoting competitive commercial communications systems, while at the same time providing support for educational services.
The burden is now on educators todevelop ITFS into a viable educational platform.
Today, there are more than 1,275 ITFS licensees that serve millions of students. Licensees include state universities, community and technical colleges, private colleges, public elementary and secondary school districts, private and parochial schools, government agencies, public broadcast stations, hospitals, and private nonprofit educational entities such as the Catholic Church. The Catholic Church ITFS licensees alone serve more than 600,000 students and four million households throughout the United States. ITFS systems distribute educational, instructional, inspirational, and other services to schools as well as community centers, hospitals, nursing homes, parishes, and residences.
ITFS channels today are primarily used to deliver video programming. However, ITFS licensees are beginning to use their spectrum to deploy high-speed wireless broadband networks and data services to education and community institutions, homes, and small businesses. To be successful, however, a major restructuring of the ITFS band and revised technical rules are required to support new two-way wireless broadband technologies.
The educational community participated in the development of these rule changes and has vigorously supported them. But somehow during the course of the proceedings to consider these changes, the FCC asked whether commercial entities should be permitted to buy ITFS spectrum at an auction, the FCC's preferred mechanism for allocating scarce spectrum and squeezing out critically needed revenue for the federal government.
The commercial wireless companies' interest in the ITFS spectrum was piqued after legendary cellular telephone entrepreneur Craig McCaw began last year to quietly lease spectrum rights and purchase commercial spectrum in the same band. The commercial outfits argued that educators are underutilizing this scarce public resource and that they could better exploit it to provide new forms of commercial wireless services if they could buy rather than lease excess channel capacity. Many educators, they said, don't even use their ITFS spectrum, sometimes leasing up to 95 percent of available capacity to commercial partners.
This argument found receptive ears at the FCC's Wireless Telecommunications Bureau, notwithstanding educators' rebuttals that they have been providing millions of students with a wealth of instructional services, and their plans to provide interactive wireless educational services once the FCC overhauls the ITFS band plan and technical rules. Some commercial companies claimed the FCC should also auction part of the ITFS spectrum so new entrants can get a foothold.
Educators overwhelmingly supported retaining existing rules that limit ITFS licenses to nonprofit and public educators. They feared that if the rules changed to permit for-profit entities to acquire ITFS spectrum, educators would be unable to compete at auction for available frequencies. Educators also feared that current ITFS licenses, with budget problems of their own, would be forced to sell their channels to meet current cash needs. And they feared that commercial entities would insist on owning the frequencies outright, rather than leasing capacity from educational licensees.
For its part, the FCC couldn't please everyone. It could have simply retained the existing eligibility requirements for ITFS, or it could have removed those requirements altogether, permitting ITFS licenses to be held by any entity, as urged by the commercial sector. It could have opened eligibility for only part of the spectrum, leaving other portions restricted exclusively to educational licensees. Or, it could keep restrictions as is and see whether full use of the band developed, with the option of changing the requirements later. As the spring wore on, it increasingly looked as though educators would wind up with the shortest straw.
The commercial wireless companies, through a lot of legal and lobbying muscle, persuaded many at the FCC to reduce the size of the ITFS band and reallocate the reclaimed spectrum through auctions for new services. They also succeeded in persuading some key officials to make them eligible to hold the remaining ITFS spectrum. Educators simply can't match the telecom industry's lobbyists, their cash, or their intimate political contacts. And that's what happened in the ITFS case. By April, the prospects for ITFS looked pretty bleak. But being outgunned in terms of numbers of lobbyists and funding didn't mean that educators were powerless.
Although they lack the lobbying resources of the telecommunications companies, educators fought back to retain exclusive control over ITFS channels. Under the leadership of the National ITFS Association, the American Association of Community Colleges, the Catholic Television Network, and others, the educators pooled their financial resources and embarked on a focused, coordinated grassroots lobbying campaign. They identified key members of the Senate and the House, secured the active support of their local colleges, universities, school systems, and churches, provided them with talking points and draft letters, and turned them loose to enlist the support of key members of Congress and to flood the FCC with letters supporting ITFS. The lawmakers called on Powell to continue the education-only reservation of ITFS licenses, to maintain the amount of spectrum allocated for ITFS, and to "ensure that the desires of commercial interests are not put before the public's interest in using this asset to promote educational advancement."
The FCC staff had initially prepared a draft order for the commissioners that would have both opened eligibility to commercial applicants and reduced the bandwidth of most ITFS channels, allocating the recovered spectrum for commercial uses. This approach on its surface was appealing because it gave both sides something; the commercial entities would get new prime spectrum and the educators who choose to resist commercial pressures to sell would still retain a significant amount of their spectrum for both their traditional services and new wireless operations. But the change in eligibility would likely have resulted in termination of many educational services, which could be replaced by commercial services. For the surviving ITFS licensees, the reduction in bandwidth would have resulted in a loss of capacity and flexibility, as well as value.
The educators' pleas and the supporting calls of their members of Congress did not fall on deaf ears. The FCC unanimously voted at its open meeting in June to leave the educational eligibility requirements in place. The proposal to create two new commercial channels for auction was abandoned. The decision still takes back some ITFS (and commercial) spectrum to find a home for two ITFS-like commercial channels (MDS 1 and 2), but it seeks to minimize the loss by reallocating some mobile satellite services spectrum for ITFS.
Though this fight was over ethereal spectrum, educators managed to put the FCC between a politically tangible rock and an equally tangible hard place. Powell had to chart a course between the commercial sector's push for additional spectrum (and the Republican tendency to favor fewer restrictions on frequency ownership and use), and the education community's desire to retain spectrum to which it has grown very attached over the last 40 years.
In an election year in which Mom and apple pie issues traditionally are important to politicians, the fact that the "No Child Left Behind" Administration would consider taking scarce spectrum away from educators became a problem for the FCC--enough of a problem to outweigh free market regulatory theories.
But the burden is clearly now on educators to develop ITFS into a viable wireless broadband educational platform. The FCC has provided the necessary new band plan and technical rules. Failure to succeed in the near term will likely put the spectrum back into play as the demand for spectrum will only increase over time.
Kenneth Salomon is a member of Dow, Lohnes & Albertson, PLLC (www.dlalaw.com), with offices in Washington, DC, and Atlanta.