§ 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.

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