§  27.1214   EBS spectrum leasing arrangements and grandfathered leases.

   (a) A licensee in the EBS that is solely utilizing analog transmissions
   may enter into a spectrum leasing arrangement to transmit material
   other than the educational programming defined in § 27.1203(b) and (c)
   subject to the following conditions:

   (1) Before entering into a spectrum leasing arrangement involving
   material other than educational programming on any one channel, the
   licensee must provide at least 20 hours per week of EBS educational
   programming (as defined in § 27.1203(b) and (c)) on that channel,
   except as provided in paragraphs (a)(2) and (a)(3) of this section. An
   additional 20 hours per week per channel must be strictly reserved for
   EBS use and not used for non-EBS purposes, or reserved for recapture by
   the EBS licensee for its EBS educational usage, subject to one year's
   advance, written notification by the EBS licensee to its lessee and
   accounting for all recapture already exercised, with no economic or
   operational detriment to the licensee. These hours of recapture are not
   restricted as to time of day or day of the week, but may be established
   by negotiations between the EBS licensee and the lessee. The 20 hours
   per channel per week EBS educational usage requirement and the
   recapture and/or reservation requirement of an additional 20 hours per
   channel per week shall apply spectrally over the licensee's whole
   actual service area.

   (2) For the first two years of operation, an EBS entity may enter into
   a spectrum leasing arrangement involving material other than
   educational programming if it provides EBS educational usage for at
   least 12 hours per channel per week, provided that the entity does not
   employ channel loading technology.

   (3) The licensee may shift its requisite EBS educational usage onto
   fewer than its authorized number of channels, via channel mapping or
   channel loading technology, so that it can enter into a spectrum
   leasing arrangement involving full-time channel capacity on its EBS
   station and/or associated EBS booster stations, subject to the
   condition that it provide a total average of at least 20 hours per
   channel per week of EBS educational usage on its authorized channels.
   The use of channel mapping or channel loading consistent with the Rules
   shall not be considered adversely to the EBS licensee in seeking a
   license renewal. The licensee also retains the unabridgeable right to
   recapture, subject to six months' advance written notification by the
   EBS licensee to the spectrum lessee, an average of an additional 20
   hours per channel per week, accounting for all recapture already
   exercised. Regardless of whether the licensee has educational receive
   sites within its GSA, the licensee may lease booster stations in the
   entire GSA, provided that the licensee maintains the unabridgeable
   right to ready recapture at least 40 hours per channel per week for EBS
   educational usage. The licensee may agree to the transmission of this
   recapture time on channels not authorized to it, but which are included
   in the wireless system of which it is a part. A licensee under this
   paragraph which enters into a spectrum leasing arrangement on any one
   of its channels to an operator may "channel shift" pursuant to and
   under the conditions of paragraph (d)(2) of this section.

   (b) A licensee utilizing digital transmissions on any of its licensed
   channels may enter into a spectrum leasing arrangement to transmit
   material other than the educational programming defined in § 27.1203(b)
   and (c), subject to the following conditions:

   (1) The licensee must reserve a minimum of 5% of the capacity of its
   channels for educational uses consistent with § 27.1203 paragraphs (b)
   and (c), and may not enter into a spectrum leasing arrangement
   involving this reserved capacity. In addition, before leasing excess
   capacity, the licensee must provide at least 20 hours per licensed
   channel per week of EBS educational usage. This 5% reservation and this
   20 hours per licensed channel per week EBS educational usage
   requirement shall apply spectrally over the licensee's whole actual
   service area. However, regardless of whether the licensee has an
   educational receive site within its GSA served by a booster, the
   licensee may lease excess capacity without making at least 20 hours per
   licensed channel per week of EBS educational usage, provided that the
   licensee maintains the unabridgeable right to recapture on one months'
   advance notice such capacity as it requires over and above the 5%
   reservation to make at least 20 hours per channel per week of EBS
   educational usage.

   (2) The licensee may shift its requisite EBS educational usage onto
   fewer than its authorized number of channels, via channel mapping or
   channel loading technology, and may shift its requisite EBS educational
   usage onto channels not authorized to it, but which are included in the
   wireless system of which it is a part ("channel shifting"), so that it
   can enter into a spectrum leasing arrangement involving full-time
   channel capacity on its EBS station, associated EBS booster stations,
   and/or EBS response stations and associated response station hubs,
   subject to the condition that it provide a total average of at least 20
   hours per licensed channel per week of EBS educational usage. The use
   of channel mapping, channel loading, and/or channel shifting consistent
   with the Rules shall not be considered adversely to the EBS licensee in
   seeking a license renewal. In addition, an EBS entity receiving
   interference protection will continue to receive such protection if it
   elects to swap channels with another EBS or BRS station.

   (c) All spectrum leasing arrangements involving EBS spectrum must
   afford the EBS licensee an opportunity to purchase or to lease the
   dedicated or common EBS equipment used for educational purposes, or
   comparable equipment in the event that the spectrum leasing arrangement
   is terminated.

   (d) All leases of current EBS spectrum entered into prior to January
   10, 2005 and in compliance with leasing rules formerly contained in
   part 74 of this chapter may continue in force and effect,
   notwithstanding any inconsistency between such leases and the rules
   applicable to spectrum leasing arrangements set forth in this chapter.
   Such leases entered into pursuant to the former part 74 rules of this
   chapter may be renewed and assigned in accordance with the terms of
   such lease. All spectrum leasing arrangements leases entered into after
   January 10, 2005, pursuant to the rules set forth in part 1 and part 27
   of this chapter, must comply with the rules in those parts.

   (e) The maximum permissible term of an EBS spectrum leasing arrangement
   entered into on or after July 19, 2006 (including the initial term and
   all renewal terms that commence automatically or at the sole option of
   the lessee) shall be 30 years. In furtherance of the educational
   purposes for which EBS spectrum is primarily allocated, any spectrum
   leasing arrangement in excess of 15 years that is entered into on or
   after July 19, 2006 must include terms which provide the EBS licensee
   on the 15th year and every 5 years thereafter, with an opportunity to
   review its educational use requirements in light of changes in
   educational needs, technology, and other relevant factors and to obtain
   access to such additional services, capacity, support, and/or equipment
   as the parties shall agree upon in the spectrum leasing arrangement to
   advance the EBS licensee's educational mission.

   [ 69 FR 72034 , Dec. 10, 2004, as amended at  71 FR 35190 , June 19, 2006;
    73 FR 26041 , May 8, 2008]