Goto Section: 1.9020 | 1.9035 | Table of Contents
FCC 1.9030
Revised as of October 1, 2008
Goto Year:2007 |
2009
Sec. 1.9030 Long-term de facto transfer leasing arrangements.
(a) Overview. Under the provisions of this section, a licensee (in any of
the included services) and a spectrum lessee may enter into a long-term de
facto transfer leasing arrangement in which the licensee retains de jure
control of the license while de facto control of the leased spectrum is
transferred to the spectrum lessee for the duration of the spectrum leasing
arrangement, subject to prior Commission consent pursuant to the application
procedures set forth in this section. A “long-term” de facto transfer
leasing arrangement has an individual term, or series of combined terms, of
more than one year. The term of a long-term de facto transfer leasing
arrangement may be no longer than the term of the license authorization.
(b) Rights and responsibilities of the licensee. (1) Except as provided in
paragraph (b)(2) of this section, the licensee is relieved of primary and
direct responsibility for ensuring that the spectrum lessee's operations
comply with the Communications Act and Commission policies and rules.
(2) The licensee is responsible for its own violations, including those
related to its spectrum leasing arrangement with the spectrum lessee, and
for ongoing violations or other egregious behavior on the part of the
spectrum lessee about which the licensee has knowledge or should have
knowledge.
(3) The licensee must retain a copy of the spectrum leasing agreement and
make it available upon request by the Commission.
(c) Rights and responsibilities of the spectrum lessee. (1) The spectrum
lessee assumes primary responsibility for complying with the Communications
Act and applicable Commission policies and rules.
(2) The spectrum lessee is granted an instrument of authorization pertaining
to the de facto transfer leasing arrangement that brings it within the scope
of the Commission's direct forfeiture provisions under section 503(b) of the
Communications Act.
(3) The spectrum lessee is responsible for interacting with the Commission
regarding the leased spectrum and for making all related filings ( e.g., all
applications and notifications, submissions of any materials required to
support a required Environmental Assessment, any reports required by
Commission rules and applicable to the lessee, information necessary to
facilitate international or Interdepartment Radio Advisory Committee (IRAC)
coordination).
(4) The spectrum lessee is required to maintain accurate information on file
pursuant to Commission rules ( see Sec. 1.65 of subpart A of this part).
(5) The spectrum lessee must retain a copy of the spectrum leasing agreement
and make it available upon request by the Commission.
(d) Applicability of particular service rules and policies. Under a
long-term de facto transfer leasing arrangement, the service rules and
policies apply in the following manner to the licensee and spectrum lessee:
(1) Interference-related rules. The interference and radiofrequency (RF)
safety rules applicable to use of the spectrum by the licensee as a
condition of its license authorization also apply to the use of the spectrum
leased by the spectrum lessee.
(2) General eligibility rules. (i) The spectrum lessee must meet the same
eligibility and qualification requirements that are applicable to the
licensee under its license authorization. A spectrum lessee entering into a
spectrum leasing arrangement involving a licensee in the Educational
Broadband Service ( see Sec. 27.1201 of this chapter) is not required to comply
with the eligibility requirements pertaining to such a licensee so long as
the spectrum lessee meets the other eligibility and qualification
requirements applicable to part 27 services ( see Sec. 27.12 of this chapter). A
spectrum lessee entering into a spectrum leasing arrangement involving a
licensee in the Public Safety Radio Services ( see part 90, subpart B and
Sec. 90.311(a)(1)(i) of this chapter) is not required to comply with the
eligibility requirements pertaining to such a licensee so long as the
spectrum lessee is an entity providing communications in support of public
safety operations ( see Sec. 90.523(b) of this chapter).
(ii) The spectrum lessee must meet applicable foreign ownership eligibility
requirements (see sections 310(a), 310(b) of the Communications Act).
(iii) The spectrum lessee must satisfy any qualification requirements,
including character qualifications, applicable to the licensee under its
license authorization.
(iv) The spectrum lessee must not be a person subject to denial of Federal
benefits under the Anti-Drug Abuse Act of 1988 ( see Sec. 1.2001 et seq. of
subpart P of this part).
(3) Use restrictions. To the extent that the licensee is restricted from
using the licensed spectrum to offer particular services under its license
authorization, the use restrictions apply to the spectrum lessee as well.
(4) Designated entity/entrepreneur rules. (i) A licensee that holds a
license pursuant to small business and/or entrepreneur provisions ( see
Sec. 1.2110 and Sec. 24.709 of this chapter) and continues to be subject to unjust
enrichment requirements ( see Sec. 1.2111 and Sec. 24.714 of this chapter) and/or
transfer restrictions ( see Sec. 24.839 of this chapter) may enter into a
long-term de facto transfer leasing arrangement with any entity under the
streamlined processing procedures described in this section, subject to any
applicable unjust enrichment payment obligations and/or transfer
restrictions ( see Sec. 1.2111 and Sec. 24.839 of this chapter).
(ii) A licensee holding a license won in closed bidding ( see Sec. 24.709 of
this chapter) may, during the first five years of the license term, enter
into a spectrum leasing arrangement with an entity not eligible to hold such
a license pursuant to the requirements of Sec. 24.709(a) of this chapter so long
as it has met its five-year construction requirement ( see Sec. Sec. 24.203,
24.839(a)(6) of this chapter).
(iii) The amount of any unjust enrichment payment will be determined by the
Commission as part of its review of the application under the same rules
that apply in the context of a license assignment or transfer of control (
see Sec. 1.2111 and Sec. 24.714 of this chapter). If the spectrum leasing
arrangement involves only part of the license area and/or part of the
bandwidth covered by the license, the unjust enrichment obligation will be
apportioned as though the license were being partitioned and/or
disaggregated ( see Sec. 1.2111(e) and Sec. 24.714(c) of this chapter). A licensee
will receive no reduction in its unjust enrichment payment obligation for a
spectrum leasing arrangement that ends prior to the end of the fifth year of
the license term.
(iv) A licensee that participates in the Commission's installment payment
program ( see Sec. 1.2110(g) may enter into a long-term de facto transfer
leasing arrangement without triggering unjust enrichment obligations
provided that the lessee would qualify for as favorable a category of
installment payments. A licensee using installment payment financing that
seeks to lease to an entity not meeting the eligibility standards for as
favorable a category of installment payments must make full payment of the
remaining unpaid principal and any unpaid interest accrued through the
effective date of the spectrum leasing arrangement ( see Sec. 1.2111(c)). This
requirement applies regardless of whether the licensee is leasing all or a
portion of its bandwidth and/or license area.
(5) Construction/performance requirements. Any performance or build-out
requirement applicable under a license authorization ( e.g. , a requirement
that the licensee construct and operate one or more specific facilities,
cover a certain percentage of geographic area, cover a certain percentage of
population, or provide substantial service) always remains a condition of
the license, and the legal responsibility for meeting such obligation is not
delegable to the spectrum lessee(s).
(i) The licensee may attribute to itself the build-out or performance
activities of its spectrum lessee(s) for purposes of complying with any
applicable build-out or performance requirement.
(ii) If a licensee relies on the activities of a spectrum lessee to meet the
licensee's performance or build-out obligation, and the spectrum lessee
fails to engage in those activities, the Commission will enforce the
applicable performance or build-out requirements against the licensee,
consistent with the applicable rules.
(iii) If there are rules applicable to the license concerning the
discontinuance of operation, the licensee is accountable for any such
discontinuance and the rules will be enforced against the licensee
regardless of whether the licensee was relying on the activities of a lessee
to meet particular performance requirements.
(6) Regulatory classification. If the regulatory status of the licensee (
e.g. , common carrier or non-common carrier status) is prescribed by rule,
the regulatory status of the spectrum lessee is prescribed in the same
manner, except that Sec. 20.9(a) of this chapter shall not preclude a licensee
in the services covered by that rule from entering into a spectrum leasing
arrangement with a spectrum lessee that chooses to operate on a PMRS,
private, or non-commercial basis.
(7) Regulatory fees. The licensee remains responsible for payment of the
required regulatory fees that must be paid in advance of its license term (
see Sec. 1.1152). Where, however, regulatory fees are paid annually on a
per-unit basis (such as for CMRS services pursuant to Sec. 1.1152), the licensee
and spectrum lessee each are required to pay fees for those units associated
with its respective operations.
(8) E911 requirements. To the extent the licensee is required to meet E911
obligations ( see Sec. 20.18 of this chapter), the spectrum lessee is required
to meet those obligations with respect to the spectrum leased under the
spectrum leasing arrangement insofar as the spectrum lessee's operations are
encompassed within the E911 obligations.
(e) Applications for long-term de facto transfer leasing arrangements.
Applications for long-term de facto transfer leasing arrangements will be
processed either pursuant to the general approval procedures or the
immediate approval procedures, as discussed herein. Spectrum leasing parties
must submit the application by electronic filing using ULS and FCC Form 608,
and obtain Commission consent prior to consummating the transfer of de facto
control of the leased spectrum, except that parties falling within the
provisions of Sec. 1.913(d) may file the application either electronically or
manually.
(1) General approval procedures. Applications for long-term de facto
transfer leasing arrangements will be processed pursuant to the general
approval procedures set forth in this paragraph unless they are submitted
and qualify for the immediate approval procedures set forth in paragraph
(e)(2) of this section.
(i) To be accepted for filing under these general approval procedures, the
application must be sufficiently complete and contain all information and
certifications requested on the applicable form, FCC Form 608, including any
information and certifications (including those of the spectrum lessee
relating to eligibility, basic qualifications, and foreign ownership)
required by the rules in this chapter and any rules pertaining to the
specific service for which the application is filed. In addition, the
spectrum leasing application must include payment of the required
application fee(s); for purposes of determining the applicable application
fee(s), the application will be treated as a transfer of control ( see
Sec. 1.1102).
(ii) Once accepted for filing, the application will be placed on public
notice, except no prior public notice will be required for applications
involving authorizations in the Private Wireless Services, as specified in
Sec. 1.933(d)(9).
(iii) Petitions to deny filed in accordance with section 309(d) of the
Communications Act must comply with the provisions of Sec. 1.939, except that
such petitions must be filed no later than 14 days following the date of the
public notice listing the application as accepted for filing.
(iv) No later than 21 days following the date of the public notice listing
an application as accepted for filing, the Wireless Telecommunications
Bureau (Bureau) will affirmatively consent to the application, deny the
application, or determine to subject the application to further review. For
applications for which no prior public notice is required, the Bureau will
affirmatively consent to the application, deny the application, or determine
to subject the application to further review no later than 21 days following
the date on which the application has been filed and any required
application fee has been paid ( see Sec. 1.1102).
(v) If the Bureau determines to subject the application to further review,
it will issue a public notice so indicating. Within 90 days following the
date of that public notice, the Bureau will either take action upon the
application or provide public notice that an additional 90-day period for
review is needed.
(vi) Consent to the application is not deemed granted until the Bureau
affirmatively acts upon the application.
(vii) Grant of consent to the application will be reflected in a public
notice ( see Sec. 1.933(a)) promptly issued after the grant, and is subject to
reconsideration ( see Sec. Sec. 1.106(f), 1.108, 1.113).
(viii) If any petition to deny is filed, and the Bureau grants the
application, the Bureau will deny the petition(s) and issue a concise
statement of the reason(s) for denial, disposing of all substantive issues
raised in the petition(s).
(2) Immediate approval procedures. Applications that meet the requirements
of paragraph (e)(2)(i) of this section qualify for the immediate approval
procedures.
(i) To qualify for the immediate approval procedures, the application must
be sufficiently complete, contain all necessary information and
certifications (including those relating to eligibility, basic
qualifications, and foreign ownership), and include payment of the requisite
application fee(s), as required for an application processed under the
general approval procedures set forth in paragraph (e)(1)(i) of this
section, and also must establish, through certifications, that the following
additional qualifications are met:
(A) The license does not involve spectrum licensed in a Wireless Radio
Service that may be used to provide interconnected mobile voice and/or data
services under the applicable service rules and that would, if the spectrum
leasing arrangement were consummated, create a geographic overlap with
spectrum in any licensed Wireless Service (including the same service) in
which the proposed spectrum lessee already holds a direct or indirect
interest of 10% or more ( see Sec. 1.2112), either as a licensee or a spectrum
lessee, and that could be used by the spectrum lessee to provide
interconnected mobile voice and/or data services;
(B) The licensee is not a designated entity or entrepreneur subject to
unjust enrichment requirements and/or transfer restrictions under applicable
Commission rules ( see Sec. Sec. 1.2110 and 1.2111, and Sec. Sec. 24.709, 24.714, and 24.839
of this chapter); and,
(C) The spectrum leasing arrangement does not require a waiver of, or
declaratory ruling pertaining to, any applicable Commission rules.
(ii) Provided that the application establishes that it meets all of the
requisite elements to qualify for these immediate approval procedures,
consent to the de facto transfer spectrum leasing arrangement will be
reflected in ULS. If the application is filed electronically, consent will
be reflected in ULS on the next business day after filing of the
application; if filed manually, consent will be reflected in ULS on the next
business day after the necessary data from the manually filed application is
entered into ULS. Consent to the application is not deemed granted until the
Bureau affirmatively acts upon the application, as reflected in ULS.
(iii) Grant of consent to the application under these immediate approval
procedures will be reflected in a public notice ( see Sec. 1.933(a)) promptly
issued after grant, and is subject to reconsideration ( see Sec. Sec. 1.106(f),
1.108, 1.113).
(f) Effective date of a de facto transfer leasing arrangement. If the
Commission consents to the de facto transfer leasing arrangement, the de
facto transfer leasing arrangement will be deemed effective in the
Commission's records, and for purposes of the application of the rules set
forth in this section, on the date set forth in the application. If the
Commission consents to the arrangement after that specified date, the
spectrum leasing application will become effective on the date of the
Commission affirmative consent.
(g) Expiration, extension, or termination of spectrum leasing arrangement.
(1) Except as provided in paragraph (g)(2) or (g)(3) of this section, a
spectrum leasing arrangement entered into pursuant to this section will
expire on the termination date set forth in the application. The
Commission's consent to the de facto transfer leasing application includes
consent to return the leased spectrum to the licensee at the end of the term
of the spectrum leasing arrangement.
(2) A spectrum leasing arrangement may be extended beyond the initial term
set forth in the spectrum leasing application pursuant to the applicable
application procedures set forth in Sec. 1.9030(e). Where there is pending
before the Commission at the date of termination of the spectrum leasing
arrangement a proper and timely application seeking to extend the
arrangement, the parties may continue to operate under the original spectrum
leasing arrangement without further action by the Commission until such time
as the Commission shall make a final determination with respect to the
application.
(3) If a spectrum leasing arrangement is terminated earlier than the
termination date set forth in the notification, either by the licensee or by
the parties' mutual agreement, the licensee must file a notification with
the Commission, no later than ten (10) days after the early termination,
indicating the date of the termination. If the parties fail to put the
spectrum leasing arrangement into effect, they must so notify the Commission
consistent with the provisions of this section.
(4) The Commission will place information concerning an extension or an
early termination of a spectrum leasing arrangement on public notice.
(h) Assignment of spectrum leasing arrangement. The spectrum lessee may
assign its lease to another entity provided that the licensee has agreed to
such an assignment, there is privity between the licensee and the assignee,
and the assignment is approved by the Commission pursuant to the same
application and approval procedures set forth in this section. In the case
of a non-substantial ( pro forma ) assignment that falls within the class of
pro forma transactions for which prior Commission approval would not be
required under Sec. 1.948(c)(1), the parties involved in the assignment must
file notification of the assignment with the Commission, using FCC Form 608
and providing any necessary updates of ownership information, within 30 days
of its completion. The Commission will place information related to the
assignment, whether substantial or pro forma , on public notice.
(i) Transfer of control of a spectrum lessee. A spectrum lessee seeking the
transfer of control must obtain Commission consent using the same
application and Commission consent procedures set forth in this section. In
the case of a non-substantial ( pro forma ) transfer of control that falls
within the class of pro forma transactions for which prior Commission
approval would not be required under Sec. 1.948(c)(1), the parties involved in
the transfer of control must file notification of the transfer of control
with the Commission, using FCC Form 608 and providing any necessary updates
of ownership information, within 30 days of its completion. The Commission
will place information related to the transfer of control, whether
substantial or pro forma, on public notice.
(j) Revocation or automatic cancellation of a license or the spectrum
lessee's operating authority. (1) In the event an authorization held by a
licensee that has entered into a spectrum leasing arrangement is revoked or
cancelled, the spectrum lessee will be required to terminate its operations
no later than the date on which the licensee ceases to have authority to
operate under the license, except as provided in paragraph (i)(2) of this
section.
(2) In the event of a license revocation or cancellation, the Commission
will consider a request by the spectrum lessee for special temporary
authority ( see Sec. 1.931) to provide the spectrum lessee with an opportunity
to transition its users in order to minimize service disruption to business
and other activities.
(3) In the event of a license revocation or cancellation, and the required
termination of the spectrum lessee's operations, the former spectrum lessee
does not, as a result of its former status, receive any preference over any
other party should the spectrum lessee seek to obtain the revoked or
cancelled license.
(k) Subleasing. A spectrum lessee may sublease spectrum usage rights subject
to the following conditions. Parties entering into a spectrum subleasing
arrangement are required to comply with the Commission's rules for obtaining
approval for spectrum leasing arrangements provided in this subpart and are
governed by those same policies. The application filed by parties to a
spectrum subleasing arrangement must include written consent from the
licensee to the proposed arrangement. Once a spectrum subleasing arrangement
has been approved by the Commission, the sublessee becomes the party
primarily responsible for compliance with Commission rules and policies.
(l) Renewal. Although the term of a long-term de facto transfer spectrum
leasing arrangement may not be longer than the term of a license
authorization, a licensee and spectrum lessee that have entered into an
arrangement whose term continues to the end of the current term of the
license authorization may, contingent on the Commission's grant of the
license renewal, extend the spectrum leasing arrangement into the term of
the renewed license authorization. The Commission must be notified of the
renewal of the spectrum leasing arrangement at the same time that the
licensee submits its application for license renewal ( see Sec. 1.949). The
spectrum lessee may operate under the extended term, without further action
by the Commission, until such time as the Commission shall make a final
determination with respect to the renewal of the license authorization and
the extension of the spectrum leasing arrangement into the term of the
renewed license authorization.
[ 68 FR 66277 , Nov. 25, 2003, as amended at 69 FR 72027 , Dec. 10, 2004; 69 FR 77554 , Dec. 27, 2004]
Effective Date Note: At 69 FR 77554 , Dec. 27, 2004, Sec. 1.9030(e) was
revised. This paragraph contains information collection and recordkeeping
requirements and will not become effective until approval has been given by
the Office of Management and Budget.
Goto Section: 1.9020 | 1.9035
Goto Year: 2007 |
2009
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