Goto Section: 1.9010 | 1.9030 | Table of Contents
FCC 1.9020
Revised as of October 1, 2013
Goto Year:2012 |
2014
§ 1.9020 Spectrum manager 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
spectrum manager leasing arrangement, without the need for prior
Commission approval, provided that the licensee retains de jure control
of the license and de facto control, as defined and explained in this
subpart, of the leased spectrum. The licensee must notify the
Commission of the spectrum leasing arrangement pursuant to the rules
set forth in this section. The term of a spectrum manager leasing
arrangement may be no longer than the term of the license
authorization.
(b) Rights and responsibilities of the licensee. (1) The licensee is
directly and primarily responsible for ensuring the spectrum lessee's
compliance with the Communications Act and applicable Commission
policies and rules.
(2) The licensee retains responsibility for maintaining its compliance
with applicable eligibility and ownership requirements imposed on it
pursuant to the license authorization.
(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 must comply with the Communications Act and with
Commission requirements associated with the license.
(2) The spectrum lessee is responsible for establishing that it meets
the eligibility and qualification requirements applicable to spectrum
lessees under the rules set forth in this section.
(3) The spectrum lessee must comply with any obligations that apply
directly to it as a result of its own status as a service provider
(e.g., Title II obligations if the spectrum lessee acts as a
telecommunications carrier or acts as a common carrier).
(4) In addition to the licensee being directly accountable to the
Commission for ensuring the spectrum lessee's compliance with the
Commission's operational rules and policies (as discussed in this
subpart), the spectrum lessee is independently accountable to the
Commission for complying with the Communications Act and Commission
policies and rules, including those that apply directly to the spectrum
lessee as a result of its own status as a service provider.
(5) In leasing spectrum from a licensee, the spectrum lessee must
accept Commission oversight and enforcement consistent with the license
authorization. The spectrum lessee must cooperate fully with any
investigation or inquiry conducted by either the Commission or the
licensee, allow the Commission or the licensee to conduct on-site
inspections of transmission facilities, and suspend operations at the
direction of the Commission or the licensee and to the extent that such
suspension would be consistent with the Commission's suspension
policies.
(6) 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
spectrum manager 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, with the following
exceptions. 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 47 CFR 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). A spectrum lessee entering into a
spectrum leasing arrangement involving a licensee in the Mobile
Satellite Service with ATC authority (see part 25) 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 of paragraphs (d)(2)(ii) and (d)(2)(iv) of
this section.
(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 the denial of
Federal benefits under the Anti-Drug Abuse Act of 1988 ( see § 1.2001
et seq. of subpart P of this part).
(v) The licensee may reasonably rely on the spectrum lessee's
certifications that it meets the requisite eligibility and
qualification requirements contained in the notification required by
this section.
(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. 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 spectrum manager leasing arrangement with a spectrum
lessee, regardless of whether the spectrum lessee meets the
Commission's designated entity eligibility requirements ( see
§ 1.2110) or its entrepreneur eligibility requirements to hold certain
C and F block licenses in the broadband personal communications
services ( see § 1.2110 and § 24.709 of this chapter), so long as the
spectrum manager leasing arrangement does not result in the spectrum
lessee's becoming a "controlling interest" or "affiliate" ( see
§ 1.2110) of the licensee such that the licensee would lose its
eligibility as a designated entity or entrepreneur. To the extent there
is any conflict between the revised de facto control standard for
spectrum leasing arrangements, as set forth in this subpart, and the
definition of controlling interest (including its de facto control
standard) set forth in § 1.2110, the latter definition governs for
determining whether the licensee has maintained the requisite degree of
ownership and control to allow it to remain eligible for the license or
for other benefits such as bidding credits and installment payments.
(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 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 performance or build-out 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 Private Mobile Radio Service (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 Commercial Mobile Radio
Services (CMRS) pursuant to § 1.1152), the licensee and spectrum
lessee are each required to pay fees for those units associated with
its respective operations.
(8) 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.
(e) Notifications regarding spectrum manager leasing arrangements. A
licensee that seeks to enter into a spectrum manager leasing
arrangement must notify the Commission of the arrangement in advance of
the spectrum lessee's commencement of operations. The spectrum manager
lease notification will be processed pursuant either to the general
notification procedures or the immediate processing procedures, as set
forth herein. The licensee must submit the notification to the
Commission by electronic filing using the Universal Licensing System
(ULS) and FCC Form 608, except that a licensee falling within the
provisions of § 1.913(d) may file the notification either
electronically or manually.
(1) General notification procedures. Notifications of spectrum manager
leasing arrangements will be processed pursuant the general
notification procedures set forth in this paragraph unless they are
submitted and qualify for the immediate processing procedures set forth
in paragraph (e)(2) of this section.
(i) To be accepted under these general notification procedures, the
notification 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 notification is filed.
No application fees are required for the filing of a spectrum manager
leasing notification.
(ii) The licensee must submit such notification at least 21 days in
advance of commencing operations unless the arrangement is for a term
of one year or less, in which case the licensee must provide
notification to the Commission at least ten (10) days in advance of
operation. If the licensee and spectrum lessee thereafter seek to
extend this leasing arrangement for an additional term beyond the
initial term, the licensee must provide the Commission with
notification of the new spectrum leasing arrangement at least 21 days
in advance of operation under the extended term.
(iii) A notification filed pursuant to these general notification
procedures will be placed on an informational public notice on a weekly
basis ( see § 1.933(a)) once accepted, and is subject to
reconsideration ( see § § 1.106(f), 1.108, 1.113).
(2) Immediate processing procedures. Notifications that meet the
requirements of paragraph (e)(2)(i) of this section qualify for the
immediate processing procedures.
(i) To qualify for these immediate processing procedures, the
notification must be sufficiently complete and contain all necessary
information and certifications (including those relating to
eligibility, basic qualifications, and foreign ownership) required for
notifications processed under the general notification 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 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 Radio Service (including the same service), or in the ATC of a
Mobile Satellite 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 notification establishes that the proposed
spectrum manager leasing arrangement meets all of the requisite
elements to qualify for these immediate processing procedures, ULS will
reflect that the notification has been accepted. If a qualifying
notification is filed electronically, the acceptance will be reflected
in ULS on the next business day after filing of the notification; if
filed manually, the acceptance will be reflected in ULS on the next
business day after the necessary data from the manually filed
notification is entered into ULS. Once the notification has been
accepted, as reflected in ULS, the spectrum lessee may commence
operations under the spectrum leasing arrangement, consistent with the
term of the arrangement.
(iii) A notification filed pursuant to these immediate processing
procedures will be placed on an informational public notice on a weekly
basis ( see § 1.933(a)) once accepted, and is subject to
reconsideration ( see § § 1.106(f), 1.108, 1.113).
(f) Effective date of a spectrum manager leasing arrangement. The
spectrum manager 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, as of the beginning date of the term as
specified in the spectrum leasing notification.
(g) Commission termination of a spectrum manager leasing arrangement.
The Commission retains the right to investigate and terminate any
spectrum manager leasing arrangement if it determines,
post-notification, that the arrangement constitutes an unauthorized
transfer of de facto control of the leased spectrum, is otherwise in
violation of the rules in this chapter, or raises foreign ownership,
competitive, or other public interest concerns. Information concerning
any such termination will be placed on public notice.
(h) Expiration, extension, or termination of a spectrum leasing
arrangement. (1) Absent Commission termination or 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 spectrum leasing notification.
(2) A spectrum leasing arrangement may be extended beyond the initial
term set forth in the spectrum leasing notification provided that the
licensee notifies the Commission of the extension in advance of
operation under the extended term and does so pursuant to the general
notification procedures or immediate processing procedures set forth in
this section, whichever is applicable. If the general notification
procedures are applicable, the licensee must notify the Commission at
least 21 days in advance of operation under the extended term.
(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.
(i) Assignment of a spectrum leasing arrangement. The spectrum lessee
may assign its spectrum leasing arrangement to another entity provided
that the licensee has agreed to such an assignment, is in privity with
the assignee, and notifies the Commission before the consummation of
the assignment, pursuant to the applicable notification 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 licensee 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.
(j) Transfer of control of a spectrum lessee. The licensee must notify
the Commission of any transfer of control of a spectrum lessee before
the consummation of the transfer of control, pursuant to the applicable
notification procedures of 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 licensee 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.
(k) Revocation or automatic cancellation of a license or a 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 any authority to operate under the license, except as provided in
paragraph (j)(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.
(l) Subleasing. A spectrum lessee may sublease the leased spectrum
usage rights subject to the licensee's consent and the licensee's
establishment of privity with the spectrum sublessee. The licensee must
submit a notification regarding the spectrum subleasing arrangement in
accordance with the applicable notification procedures set forth in
this section.
(m) Renewal. Although the term of a spectrum manager 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, renew the spectrum leasing arrangement to extend 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 77551 , Dec. 27, 2004; 76 FR 31259 , May 31, 2011]
Effective Date Note: At 69 FR 77551 , Dec. 27, 2004, § 1.9020(e)(2) 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.
return arrow Back to Top
Goto Section: 1.9010 | 1.9030
Goto Year: 2012 |
2014
CiteFind - See documents on FCC website that
cite this rule
Want to support this service?
Thanks!
Report errors in
this rule. Since these rules are converted to HTML by machine, it's possible errors have been made. Please
help us improve these rules by clicking the Report FCC Rule Errors link to report an error.
hallikainen.com
Helping make public information public