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In the 1960s, the Federal Communications Commission (FCC) began to issue broadcast licenses under the Instructional Television Fixed Service (ITFS) program to public colleges and universities, school districts, and other nonprofit institutions so that they could provide educational programming to specialized receivers over 2.5 GHz microwave channels. In 2002, the FCC changed the nomenclature of these licenses to the Educational Broadband Service (EBS) and in 2004 and 2005 provided great flexibility as to how the channels could be used or even leased to commercial parties.

Today the EBS spectrum is used for educational and noneducational two-way, multiuser, fixed, nomadic, portable, and mobile communications that include cable television and the new WiMax high-speed wireless digital broadcast technology. WiMax enables wireless communications from a single transmission point for a radius of 30 miles or more. The commercial potential has attracted the attention of large nationwide wireless service providers including Sprint/Nextel, Clearwire, and NextWave, who are now offering millions of dollars for individual long-term EBS leases. The commercial terms of these leases have varied widely, depending upon the institution’s needs, understanding of its assets, and negotiating sophistication.
SPECTRUM VALUATION FACTORS

A starting point is determining the value of the spectrum. Many questions must be addressed when valuing a lease, such as:

What is the coverage area and what is the population covered?

How scarce is spectrum available for lease in that market?

How fast is the demand for wireless services growing?

How much capital do commercial providers have to acquire new spectrum, and will banks and investors participate?

Does the licensee control more than one channel, and are they high, mid-band, or low-frequency channels?

If so, do they adjoin one another on the spectrum (more valuable), or are they separated?

The answers to these questions may make one lease an order of magnitude more valuable than its neighbor’s.

LEASE VALUATION FACTORS

EBS leases may contain several different types of compensation, infrastructure, length of lease, and renewal terms, which may render an “apples to apples” comparison of proposals challenging. Payment terms may include a large up-front payment, often coupled with fixed regular monthly payments over the life of the lease or payment levels adjusted for inflation. Other arrangements include balloon payments in later years, single lump-sum payments, or revenue sharing between the parties beyond certain revenue or profitability benchmarks.

Valuing these different options in present dollars requires sophisticated analysis of total dollars and risk factors. Lessees typically provide substantial infrastructure investments in the form of upgrading or replacing legacy systems with advanced digital equipment, including necessary wiring, broadcast antennas, and modems required to receive free or discounted wireless services to the institution. Lease terms may vary from 15 years at the lower end, with one or more automatic renewals, exclusive negotiation periods, and rights of first refusal at the end of a lease term, taking the full lease term beyond 30 years.

Actual leases typically involve some combination of the above components. A professional appraiser will attempt to attach a value to each component and express the total value of a proposed lease over time as a price per “megahertz pop” (total number of megahertz broadcast divided by households reached), usually discounted to net present value.

CONTRACTUAL AND LEGAL ISSUES

An agreement by a college or university to lease its spectrum to a commercial entity includes a lengthy, detailed contract which documents all commercial terms and also complies with numerous technical and regulatory FCC requirements. Crucial questions at the outset of the contracting process include: What type of educational use does the institution wish to retain? Is an RFP required to select a partner? Who is authorized to sign the lease? Let’s consider each.

Types of Educational Use

The FCC’s secondary leasing rules permit three types of leases: spectrum manager, short term de facto, and long term de facto. The choice of lease structure may be influenced by whether the educational entity is actively using its EBS spectrum for educational broadcasts. In a long-term de facto lease-preferred by commercial lessees-the educational institution retains only minimal use of the leased spectrum, typically the minimum 5 percent mandated by the FCC’s secondary lease rules.

A common practice to satisfy the FCC’s 5 percent rule is for the commercial entity leasing the spectrum to grant a certain number of end-user licenses to the educational institution for use by its students, faculty, administrators, or however the institution deems fit. Thus, for example, a community college leasing its two channels to a commercial operator intending to operate a WiMax network might receive 10 “free” user licenses per month plus the equipment required to use the network. Another option for a college or university that controls four channels but wants to maintain the right to use part of the spectrum now or in the future is to lease the full capacity on three channels under a long-term lease and retain control over the fourth channel, thereby maintaining 25 percent educational use.

Selecting a Partner

Another threshold contracting question is what type of process is legally mandated in selecting a commercial partner? In the case of educational institution spectrum licensees, state law or the bylaws governing the institution often mandate a process for the sale or lease of valuable assets. The lease of broadcast spectrum space worth millions of dollars increasingly has been compared to a long-term lease of real property. Under some state regulations, any disposition of real property or other valuable assets owned by a public educational institution exceeding a certain dollar value must be governed by a request for proposal (RFP) process soliciting bids from the public or from a preselected list of potential commercial partners. Consult an attorney to determine the correct procedure to use under your state’s law.

Whether or not an RFP process is required by law, it is often a good business practice, particularly where a long-term lease is desired, a wide array of contractual arrangements is possible, and the rapidly evolving technology of wireless, high speed communications makes future uses difficult to predict.

The advent of EBS leases has been an important windfall for IHEs.

Potential lessees may also vary widely in their track records, financial stability, ability to deliver a wireless communications product in the near future, willingness to share revenue, and commitment to invest in infrastructure upgrades.

A thorough RFP will include a variety of questions, such as:

What revenue does the lessee expect over the term of the lease?

What payment structure will it offer, and at what net present value to the IHE?

How does the lessee intend to smoothly transition the current use consistent with FCC guidelines?

What technical support will be offered?

What equipment and other investment resources will the lessor provide?

What educational services will the institution be permitted to operate?

What is the lessee’s experience in operating a wireless broadcast network?

What is its long-term track record in delivering commercial services?

How well is it capitalized, and has it had any financial difficulties?

What happens to the lease, equipment, and educational services if the lessee defaults in payment or is unable to perform its obligations under the lease?

Signing the Lease

An often overlooked factor in leasing 2.5 GHz broadcast spectrum space to a commercial entity is identifying who at the college or university should, and has the authority to, sign the lease and FCC lease approval application.

Again, this is an area governed in many jurisdictions by state education codes or institutional bylaws or charters. In some states, absent regulation, any appropriate official, such as the chief financial officer, purchase manager, or EBS manager, may sign a long-term lease. In other jurisdictions, only the board of trustees or the highest ranking officer has the authority to sign a long-term lease, although this authority may be delegated through specified procedures.

Both the spectrum owner and the commercial entity need to ensure that the proper authority is obtained before signing a lease, or serious consequences may ensue. Under the laws of many states there is no doctrine of “apparent authority” with respect to public entities, and a lease signed by the wrong officer may be void or unenforceable by either party.

The advent of EBS leases has been an important windfall for many educational institutions. With the exploding demand for wireless broadband services, the value of EBS spectrum space is likely to remain significant.

The ability of a college or university to capitalize on the wireless revolution depends on a variety of factors, not the least of which is the ability of administrators to manage the myriad of market, financial, and legal issues that dictate the ultimate value of an EBS license lease.

John S. Sanders is a principal with Bond & Pecaro, a Washington, D.C.-based consulting firm whose practice includes valuing broadcast spectrum. Harmeet K. Dhillon is the managing partner of Dhillon & Smith, a San Francisco-based law firm that has represented educational institutions in a variety of matters, including EBS spectrum leases.

Editors’ Note: In celebration of The Dartmouth Review’s twenty-fifth anniversary, ISI Books will be publishing The Dartmouth Review Pleads Innocent: Twenty-Five Years of Being Threatened, Impugned, Vandalized, Sued, Suspended, and Bitten at the Ivy League’s Most Controversial Conservative Newspaper this April.

The volume will be both an anthology and festschrift, including reflections from Review editors past and present. Below is the essay from Harmeet Dhillon ’89. After leaving Dartmouth and following a career as a journalist, Ms. Dhillon attended the University of Virginia School of Law, after which she clerked for the Hon. Paul V. Niemeyer of the United States Court of Appeals for the Fourth Circuit in Baltimore, Maryland. She has practiced law in London, New York, and California, and her commercial and civil rights litigation and general commercial practice is currently based in northern California and New York City.

When I arrived at Dartmouth twenty years ago, I was a sixteen- year-old naïf whom fate had delivered from my birthplace in the Punjab to a public school education in the backwoods of rural North Carolina. My father had chosen to start his medical practice there, without apparent concern for the signs on the highway proclaiming “the Ku Klux Klan welcomes you to Smithfield, North Carolina.” It was from this somewhat bizarre juxtaposition of cultures—“Delhi meets Deliverance”— that I traveled to the Hanover green, where things were stranger still. “Safe sex kits,” mock shanties where the Winter Carnival sculpture was supposed to be, rich kids dressing in rags and pretending to understand of the hardships of apartheid, the politics of divestment, and the efficacy of economic sanctions as a tool of international diplomacy (which, incidentally, the selfsame leftists now loudly decry when the target is Castro’s Cuba, the retro last bastion of communism).

While I sympathized with the noble anti-apartheid sentiments of the divestment proponents (who didn’t?), I quickly realized that something was very rotten in the state of Dartmouth. The lawlessness of the shanty-dwellers, their pseudo-righteous posing, their strained efforts to distance themselves from their mostly privileged upbringings, and their desire to project the evils of Dutch colonialism onto Dartmouth, all belied any sense of proportion or rationality. Yet even more striking was the fact that the College administration—rather than giving the miscreants the disciplinary equivalent of a good spanking or, today, a “time out”—patiently indulged the jejune antics of the radical chic protestors, answering their spoiled behavior with total inaction other than effete hand-wringing. This disconnect between actions and consequences was new to me, and only The Dartmouth Review was brave enough to point out that the emperor had no clothes. This early (to me) example of the Review as a “vox clamantis in deserto” championing an unpopular, but morally and logically correct, viewpoint, was like a siren song to my rebellious soul. I never looked back.

In retrospect, it is no surprise to me that in the balkanized and Orwellian world of Dartmouth in the late 1980s, the only place that I experienced complete meritocracy and egalitarianism was on the staff of the Review. It was the only place in my Dartmouth experience (with the possible exception of some of my three-and-four-student Greek and Latin classes with some outstanding and apolitical Classics professors) where my background—be it gender, ethnicity, or religion—was irrelevant to my role and my potential. All that mattered was how well I could report, write, edit, and reason. I had the great privilege to work alongside and learn from four of the Review’s finest editors—Debbie Stone, Chris Baldwin, Bill Grace, and Kevin Pritchett. I learned courage and discipline from the peerless Jeffrey Hart and the quirky Douglas Yates—at the time, the only two professors on campus with the intestinal fortitude to defend the Review in public. I was privileged to know and work with great and generous alumni such as George Champion, whose support made the Review possible. Along the way I made some lifelong friends and learned some painful and hard-won lessons about writing, politics, the First Amendment, and the art of war.

I no longer remember the names of most of the professors, student leaders, and College administrators who were the subjects or targets of many articles, exposés and editorials… but I can barely suppress a smile at the memory of my and my fellow reporters’ wintry antics.

One of the more vivid lessons that I learned during my editorship was that not everything is a laughing matter—or at least, not a laughing matter fit for public, front-page consumption. Memorable satire often flirts with the boundaries of good taste, as Jonathan Swift makes clear. Having crossed that boundary on more than one occasion—perhaps most strikingly by comparing James Freedman to Hitler during a controversy about the campus police’s tackling, handcuffing, and arresting freshman attempting to form their class numerals on the football field during halftime—I would like to think that I now know better. Most of the time, anyway. (My new-age-style-parenting brother likes to ask his misbehaving three-year-old son the possibly illuminating question in media res: “Son, is that a good idea or a bad idea?” I wish someone wiser had asked me that question a couple of times during my editorship. Much gnashing of teeth might have been averted all around.)

What are the lasting effects and memories of my four years at The Dartmouth Review? I’ve assembled this partial list, in no particular order: love for underdogs; a passion for freedom of speech; an almost visceral distrust of authority; respect for debate; tolerance for honestly held and well-articulated views that differ from my own; a withering disdain for anodyne and characterless school mascots; defenestration (inside joke). In retrospect, things were rarely as black-and-white as they appeared to be when I was eighteen. After all, I have evolved into a San Francisco-dwelling ACLU board member; an elected Republican official who actively participates in the Federalist Society yet also devotes a substantial amount of time to pro bono legal work on behalf of political refugees, battered women, and religious minorities; and who reviews litigation discovery documents while listening to rap—but prefers John Coltrane and Miles Davis for writing appellate briefs.

The Harmeet Dhillon who edited The Dartmouth Review might have looked upon such a person and mocked her “diversity” of viewpoints. Yet it is precisely the trial by fire, strange bedfellows at the ACLU, attempts to explain to an instransigent Morely Safer on 60 Minutes that I was, in fact, a bona fide immigrant even though I spoke English passably well, and in- numerable other sublime and ridiculous milestones of my Review tenure that ultimately engendered the complex, contrarian, and sometimes contradictory woman I have become. I hope that I will always be proud to call myself a “Reviewer.” A “wah-hoo-wah” shout-out to my fellow Reviewers past and present, and I hope to many generations of them to come. May they all cherish their Review experiences as much as I have.

19th Annual NAPABA Convention, November 11-18, 2007

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NAPABA proudly announces its“Best Lawyers Under 40” for 2007. The nominees were impressive, and the decisions extremely difficult. From this competitive field, NAPABA selected the following individuals to receive the honor of being one of the best lawyers under the age of 40 for 2007. These individuals have not only attained prominence in their respective legal endeavors, they have also exhibited steadfast commitment to community and public service, particularly in the Asian Pacific American community. They have claimed high up the ladder of success; they have tried, and won, major trials; they have handled complicated deals; they have been entrusted with the responsibility of heading up corporate departments and practice groups – and they have done it all at a relative early stage of their careers. On behalf of NAPABA, the “Best Lawyers Under 40” Selection Committee proudly recognizes these “Best Lawyers Under 40” for 2007.

Harmeet Kaur Dhillon is Managing Partner of Dhillon & Smith, a San Francisco commercial, real estate and entertainment boutique. Throughout her career in private practice, Harmeet has devoted substantial pro bono legal assistance to victims of domestic violence, human rights violations, ethnic/religious discrimination and hate crimes. She is Civil Rights Chair of the South Asian Bar Association of N. Cal., Trustee of the Sikh Foundation, Counsel to the Sikh American Legal and Educational Defense Fund, and a former board member of the ACLU and numerous other nonprofits. Born in India, Harmeet received her B.A. from Dartmouth and her JD from U.Va. She served as law clerk to the Hon. Paul V. Niemeyer (4th Circuit) before joining Shearman & Sterling in New York and London.