Goto Section: 1.9020 | 1.9035 | Table of Contents
FCC 1.9030
Revised as of December 4, 2012
Goto Year:2011 |
2013
§ 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 § 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 § 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 § 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 § 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 § 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 § 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
§ 1.2110 and § 24.709 of this chapter) and continues to be subject to
unjust enrichment requirements ( see § 1.2111 and § 24.714 of this
chapter) and/or transfer restrictions ( see § 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 § 1.2111 and § 24.839 of
this chapter).
(ii) A licensee holding a license won in closed bidding ( see § 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 § 24.709(a) of
this chapter so long as it has met its five-year construction
requirement ( see § § 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 § 1.2111 and § 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 § 1.2111(e) and § 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 § 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 § 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 § 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 § 1.1152). Where, however, regulatory fees are paid
annually on a per-unit basis (such as for CMRS services pursuant to
§ 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 § 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 § 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 § 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 § 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 § 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 § 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 § 1.933(a)) promptly issued after the grant, and is
subject to reconsideration ( see § § 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 § 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 § § 1.2110 and 1.2111, and § § 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
§ 1.933(a)) promptly issued after grant, and is subject to
reconsideration ( see § § 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 § 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 § 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 § 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 § 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 § 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, § 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.
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