Goto Section: 1.9010 | 1.9030 | Table of Contents
FCC 1.9020
Revised as of October 2, 2015
Goto Year:2014 |
2016
§ 1.9020 Spectrum manager leasing arrangements.
Link to an amendment published at 80 FR 56816 , September 18, 2015.
(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.
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