Sec.  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  Sec. 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  Sec. 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  Sec. 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  Sec. 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]