Four area school districts seeking to sell their long-held education broadcast licenses are withholding public documents about the deals, which could bring as much as $5 million each to district coffers.
Swanton Local, Springfield Local, Maumee City Schools, and the Educational Service Center of Lake Erie West have remained mum about how much money was offered to each district by private investment firm WCO Spectrum LLC for the mostly underused bandwidth. The licenses were gifted to the districts decades ago by the Federal Communications Commission.
Swanton was the latest district Wednesday to consider a bid for its broadcast license — now used for wireless broadband — as well as a related “commitment costs agreement,” to pay a portion of the bid price if the deal falls through. Board members unanimously approved both items without discussion. Documents related to the bid and subsequent agreement were withheld from the district’s online agenda.
Following the vote, Swanton Local Schools Superintendent Chris Lake maintained that the documents approved during the public meeting would remain secret. He also acknowledged that he didn’t know whether not sharing the public documents with taxpayers violated Ohio’s public records or open meetings acts.
“I’m going to have to refer you to our attorney on that one,” he said.
Out of five total school districts that banded together to sell their broadband licenses, Washington Local Schools is the only one that has revealed details about the matter.
During its Dec. 14 board meeting, Treasurer Jeff Fouke announced WCO Spectrum had offered the district $5.3 million for its broadcast license. He then further explained WCO officials were asking board members to agree to the “commitment costs agreement,” in which the board would agree to pay WCO 10 percent of its bid price, or $533,900, for the company’s time and efforts to acquire the district’s license, if the deal fell apart.
One reason the deal could fall through is because T-Mobile, which currently leases the district’s broadband, has a “right of first refusal” to WCO’s bid, at which point they would likely have to match it. Mr. Fouke said the commitment cost helps ensure WCO could recoup a portion of the fees and other expenditures to bid for the licenses.
Similar commitment cost proposals were sent to the other four districts as well. Springfield Local is the only other district that made its commitment cost agreement publicly available, which revealed the district was asked to agree to pay $511,400 for WCO officials’ time and financial investment in acquiring the licenses.
If WCO officials are asking for a 10 percent commitment — as they did with Washington Local — that would put WCO’s bid for Springfield’s offer at roughly $5.1 million.
But Springfield officials declined to address questions regarding the amount of WCO’s overall bid and referred requests to ESC Lake Erie West, as that was the organization that led the broadband auction initiative.
ESC Treasurer Richard Cox said Tuesday he is willing to provide information about the bids and proposed agreement, but is hesitant to do so because of a nondisclosure agreement with WCO. He added he is awaiting a response from an attorney and representatives from WCO.
Jack Greiner, an attorney who specializes in media law for the Graydon law firm in Cincinnati, said nondisclosure agreements can work when they’re between private companies and individuals, but the rules change when dealing with government entities, public meetings, and the use of taxpayer funds.
Contracts, resolutions, and agreements voted on by elected officials during public meetings are considered public records, adding that state and federal law administrators and elected officials can’t enter into agreements that negate state law.
While he believes there’s a strong case that the resolutions and agreements local school board members approved during public meetings are public records, Mr. Greiner said there could be an argument made that the exact bid amounts for the broadband licenses are a trade secret, for which there are exemptions under the open records and meetings acts.
But school officials and other government agency representatives are supposed to provide a reason why a requested record is being withheld and are required to cite the legal exemption used to do so.
More than likely, Mr. Greiner said school officials were likely caught off guard and decided it was simpler to run afoul of the open records requirements than risk somehow breaking WCO’s nondisclosure agreement.
“If the law had more teeth and courts were more apt to award attorneys fees, I think you'd see less of this right now,” he said. “Too often we’ve seen across the state that it's almost like public officials decide the safe thing to do is withhold records, and that's often contrary to the law but we see it happening a lot and I think that's a real source of frustration.”
Decades ago, broadcast licenses were gifted to school districts by the federal government to spur the use of instructional television, but that was before technology changed and the spectrum was used to carry everything from radio to mobile internet and GPS navigation. With that changing technology, the federal government eventually allowed districts to lease their spectrum.
The five districts banded together in the 1990s to create the Northwest Ohio Educational Wireless Communications Consortium to negotiate with other companies to lease the bandwidth.
They’ve typically leased their wireless broadband access to Clearwire Spectrum Holdings III LLC, which was bought by Sprint in 2012 and later merged with T-Mobile.
That lease agreement usually consisted of giving districts a $100,000 upfront payment and paid districts roughly $4,000 a month, although that amount could vary with each contract.
But in recent years the FCC revised its rules to allow school districts and other license holders to sell their slice of the broadband spectrum, which opened the door for the five-member northwest Ohio consortium to consider selling its broadcast licenses, which have grown to become a hot commodity with the proliferation of internet and wireless phones.
First Published December 22, 2022, 6:17 p.m.
