§  1.9035   Short-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
   short-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 “short-term” de facto transfer leasing arrangement has an
   individual or combined term of not longer than one year. The term of a
   short-term de facto transfer leasing arrangement may be no longer than
   the term of the license authorization.

   (b) Rights and responsibilities of licensee. The rights and
   responsibilities applicable to a licensee that enters into a short-term
   de facto transfer leasing arrangement are the same as those applicable
   to a licensee that enters into a long-term de facto transfer leasing
   arrangement, as set forth in § 1.9030(b).

   (c) Rights and responsibilities of spectrum lessee. The rights and
   responsibilities applicable to a spectrum lessee that enters into a
   short-term de facto transfer leasing arrangement are the same as those
   applicable to a spectrum lessee that enters into a long-term de facto
   transfer leasing arrangement, as set forth in § 1.9030(c).

   (d) Applicability of particular service rules and policies. Under a
   short-term de facto leasing arrangement, the service rules and policies
   apply to the licensee and spectrum lessee in the same manner as under
   long-term de facto transfer leasing arrangements ( see § 1.9030(d)),
   except as provided herein:

   (1) Use restrictions and regulatory classification. Use restrictions
   applicable to the licensee also apply to the spectrum lessee except
   that § 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, and except that a licensee with an
   authorization that restricts use of spectrum to non-commercial uses may
   enter into a short-term de facto transfer leasing arrangement that
   allows the spectrum lessee to use the spectrum commercially.

   (2) Designated entity/entrepreneur rules. Unjust enrichment provisions
   ( see § 1.2111) and transfer restrictions ( see § 24.839 of this chapter)
   do not apply with regard to a short-term de facto transfer leasing
   arrangement.

   (3) Construction/performance requirements. The licensee is not
   permitted to attribute to itself the activities of its spectrum lessee
   when seeking to establish that performance or build-out requirements
   applicable to the licensee have been met.

   (4) E911 requirements. If E911 obligations apply to the licensee (see
   § 20.18 of this chapter), the licensee retains the obligations with
   respect to leased spectrum. A spectrum lessee entering into a
   short-term de facto transfer leasing arrangement is not separately
   required to comply with any such obligations in relation to the leased
   spectrum.

   (e) Spectrum leasing application. Short-term de facto transfer leasing
   arrangements will be processed pursuant to immediate approval
   procedures, as discussed herein. Parties entering into a short-term de
   facto transfer leasing arrangement are required to file an electronic
   application with the Commission, using 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 § 1.913(d) may file the application either electronically
   or manually.

   (1) To be accepted for filing under these immediate 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 relating to the spectrum lessee relating to eligibility, basic
   qualifications, and foreign ownership) required by the rules of this
   chapter and any rules pertaining to the specific service for which the
   application is required. In addition, the application must include
   payment of the required application fee; for purposes of determining
   the applicable application fee, the application will be treated as a
   transfer of control ( see § 1.1102). Finally, the spectrum leasing
   arrangement must not require a waiver of, or declaratory ruling,
   pertaining to any applicable Commission rules.

   (2) Provided that the application establishes that it meets all of the
   requisite elements to qualify for these immediate approval procedures,
   consent to the short-term 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.

   (3) Grant of consent to the application under these procedures will be
   reflected in a public notice ( see § 1.933(a)) promptly issued after
   grant, and is subject to reconsideration ( see § § 1.106(f), 1.108,
   1.113).

   (f) Effective date of spectrum leasing arrangement. The spectrum
   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) Restrictions on the use of short-term de facto transfer leasing
   arrangements. (1) The licensee and spectrum lessee are not permitted to
   use the special rules and expedited procedures applicable to short-term
   de facto transfer leasing arrangements for arrangements that in fact
   will exceed one year, or that the parties reasonably expect to exceed
   one year.

   (2) The licensee and spectrum lessee must submit, in sufficient time
   prior to the expiration of the short-term de facto transfer spectrum
   leasing arrangement, the appropriate application under the rules and
   procedures applicable to long-term de facto leasing arrangements, and
   obtain Commission consent pursuant to those procedures.

   (h) Expiration, extension, or termination of the spectrum leasing
   arrangement. (1) Except as provided in paragraph (h)(2) or (h)(3) of
   this section, a spectrum leasing arrangement entered into pursuant to
   this section will expire on the termination date set forth in the
   short-term de facto transfer leasing arrangement. The Commission's
   approval of the short-term 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) Upon proper application ( see paragraph (e) of this section), a
   short-term de facto transfer leasing arrangement may be extended beyond
   the initial term set forth in the application provided that the initial
   term and extension(s) together would not result in a leasing
   arrangement that exceeds a total of one year.

   (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.

   (i) Conversion of a short-term spectrum leasing arrangement into a
   long-term de facto transfer leasing arrangement. (1) In the event the
   licensee and spectrum lessee involved in a short-term de facto transfer
   leasing arrangement seek to extend the spectrum leasing arrangement
   beyond the one-year limit for short-term de facto transfer leasing
   arrangements, the parties may do so provided that they meet the
   conditions set forth in paragraphs (i)(2) and (i)(3) of this section.

   (2) If a licensee that holds a license that continues to be subject to
   transfer restrictions and/or requirements relating to unjust enrichment
   pursuant to the Commission's small business and/or entrepreneur
   provisions ( see § 1.2110 and § 24.709 of this chapter) seeks to extend a
   short-term de facto transfer leasing arrangement with its spectrum
   lessee (or related entities, as determined pursuant to § 1.2110(b)(2))
   beyond one year, it may convert its arrangement into a long-term de
   facto transfer spectrum leasing arrangement provided that it complies
   with the procedures for entering into a long-term de facto transfer
   leasing arrangement and that it pays any unjust enrichment that would
   have been owed had the licensee filed a long-term de facto transfer
   spectrum leasing application at the time it applied for the initial
   short-term de facto transfer leasing arrangement.

   (3) The licensee and spectrum lessee are not permitted to convert a
   short-term de facto transfer leasing arrangement into a long-term de
   facto transfer leasing arrangement if the parties would have been
   restricted, in the first instance, from entering into a long-term de
   facto transfer leasing arrangement because of a transfer, use, or other
   restriction applicable to the particular service ( see § 1.9030).

   (j) Assignment of spectrum leasing arrangement. The rule applicable to
   long-term de facto transfer leasing arrangements ( see § 1.9030(g))
   applies in the same manner to short-term de facto transfer leasing
   arrangements.

   (k) Transfer of control of spectrum lessee. The rule applicable to
   long-term de facto transfer leasing arrangements ( see § 1.9030(h))
   applies in the same manner to short-term de facto transfer leasing
   arrangements.

   (l) Revocation or automatic cancellation of a license or the spectrum
   lessee's operating authority. The rule applicable to long-term de facto
   transfer leasing arrangements (see § 1.9030(i)) applies in the same
   manner to short-term de facto transfer leasing arrangements.

   (m) Subleasing. A spectrum lessee that has entered into a short-term de
   facto transfer leasing arrangement is not permitted to enter into a
   spectrum subleasing arrangement.

   (n) Renewal. The rule applicable with regard to long-term de facto
   transfer leasing arrangements ( see § 1.9030(l)) applies in the same
   manner to short-term de facto transfer leasing arrangements, except
   that the renewal of the short-term de facto transfer leasing
   arrangement to extend into the term of the renewed license
   authorization cannot enable the combined terms of the short-term de
   facto transfer leasing arrangements to exceed one year. 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 § 1.949).

   [ 68 FR 66277 , Nov. 25, 2003, as amended at  69 FR 77557 , Dec. 27, 2004]

   Effective Date Note:   At  69 FR 77557 , Dec. 27, 2004, § 1.9035(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.