**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | *  | WT Docket No. 00-230         |
|                                  | *) |                              |
| Promoting Efficient Use of       | ** |                              |
| Spectrum Through                 |    |                              |
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| Elimination of Barriers to the   | *) |                              |
| Development of                   | ** |                              |
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| Secondary Markets                | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
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|                                  | *) |                              |
|                                  | ** |                              |
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|                                  | *) |                              |
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**MEMORANDUM OPINION AND ORDER**

**Adopted: January 30, 2004 Released: January 30, 2004**

By the Chief, Wireless Telecommunications Bureau:

1.  On October 6, 2003, the Commission released a Report and Order and
    Further Notice of Proposed Rulemaking in the above-captioned
    proceeding.[^1] A summary of the *Secondary Markets Report and
    Order* was published in the Federal Register on November 25,
    2003.[^2] The effective date of the Commission's new secondary
    market rules, except for sections 1.913(a), 1.913(a)(3), 1.948(j),
    1.2002(d), 1.2003, 1.9003, 1.9020(e), 1.9030(e), and 1.9035(e) of
    the Commission's rules, is February 2, 2004.[^3]

2.  In order to fully implement all aspects of the *Secondary Markets
    Report and Order*, the Commission must receive approval from the
    Office of Management and Budget (OMB) for the revised FCC Form 603
    (Form 603) required under the newly adopted rules and must implement
    extensive changes to its Universal Licensing System (ULS). To permit
    parties to submit the necessary notifications (for spectrum manager
    leasing) and applications (for long-term and short-term *de facto*
    transfer leasing) under the rules when they become effective on
    February 2, 2004, Wireless Telecommunications Bureau (Bureau) staff
    have developed a FCC Form 603-T (FCC Wireless Telecommunications
    Bureau Application or Notification for Spectrum Leasing Agreement)
    (Form 603-T) to be used on an interim basis for the filing of the
    required spectrum leasing notifications and applications.[^4] In
    addition, Bureau staff have designed a process to facilitate
    electronic filing of the notifications and applications through ULS,
    subject to some constraints, until the necessary software changes
    can be implemented in ULS. A public notice will be released
    providing guidance to the public with regard to the steps necessary
    to file spectrum leasing notifications and applications during this
    interim processing period.

3.  The *Secondary Markets Report and Order* grants delegated authority
    to the Bureau to implement the Commission's policies facilitating
    spectrum leasing.[^5] Pursuant to that grant of authority, the
    Bureau in this order waives a number of rule sections in order to
    permit the implementation of the interim filing process.

4.  *Use of Form 603-T in lieu of Form 603.* A number of the newly
    adopted rule sections prescribe the filing of spectrum leasing
    notifications and applications on Form 603. As indicated above, the
    revised Form 603 will require OMB approval before it may be
    implemented. Accordingly, in order to permit parties to use the Form
    603-T on an interim basis, we waive the requirements of the
    following rule sections:

-   Section 1.913(a)(3)'s requirement that Form 603 be used by licensees
    and spectrum lessees to notify the Commission regarding spectrum
    manager leasing arrangements and to apply for Commission consent to
    *de facto* transfer leasing arrangements pursuant to the spectrum
    leasing rules set forth in subpart X of Part 1 of the Commission's
    rules.

-   Section 1.9003's requirement, in the definition of FCC Form 603,
    that Form 603 be used by licensees and spectrum lessees that enter
    into spectrum leasing arrangements pursuant to subpart X of Part 1,
    that parties submit the form electronically when entering into
    spectrum leasing arrangements, and that licensees governed by the
    provisions of section 1.913(d) of the Commission's rules may file
    the notification or application either electronically or manually.

-   Section 1.9020(e)(4)'s requirement that a spectrum manager leasing
    notification contain all information requested on Form 603.

-   Section 1.9030(e)'s requirement that parties entering into a
    long-term *de facto* transfer leasing arrangement must file an
    application on Form 603 (whether electronically or manually) to
    obtain Commission consent prior to consummating the transfer of *de
    facto* control of the leased spectrum.

-   Section 1.9030(e)(4)'s requirement that a long-term *de facto*
    transfer leasing application contain all information requested on
    Form 603.

-   Section 1.9035(e)'s requirement that parties entering into a
    short-term *de facto* transfer leasing arrangement must file an
    application on Form 603 (whether electronically or manually) to
    obtain Commission consent prior to consummating the transfer of *de
    facto* control of the leased spectrum.

-   Section 1.9035(e)(3)'s requirement that a short-term *de facto*
    transfer leasing application contain all information requested on
    Form 603.

In lieu of using Form 603 during the period of time in which the
Commission deploys interim procedures for the acceptance and processing
of spectrum leasing notifications and applications, parties should use
Form 603-T, once OMB approves the use of that interim form.

5.  *Inability of de facto transfer lessees or sublessees to make direct
    filings subsequent to Commission consent to the de facto transfer
    lease application.* The *Secondary Markets Report and Order* and
    associated rules provide that, once the Commission has consented to
    a *de facto* transfer leasing application, the spectrum lessee (or
    spectrum sublessee) will be responsible for making any necessary
    filings with the Commission in connection with its operations in the
    leased spectrum.[^6] During the period of time in which the
    Commission is deploying interim processes for the filing and review
    of spectrum leasing notifications and applications, ULS will not be
    able -- for technical reasons -- to accommodate *de facto* transfer
    spectrum lessees or sublessees making such filings on their own
    behalf. Rather, the licensee from whom the spectrum lessee is
    directly leasing spectrum or the spectrum sublessee is indirectly
    leasing spectrum will need to make any necessary filings.
    Accordingly, during the interim process, the Bureau waives the
    applicability of sections 1.9030(c)(3), 1.9030(c)(4), and 1.9035(c)
    of the Commission's rules to the extent these provisions require
    that a *de facto* transfer spectrum lessee be responsible for
    interacting with the Commission regarding the leased spectrum and
    for making all related filings.

6.  *Inability to file amendments and administrative updates
    electronically.* Under the interim process developed by the Bureau
    staff, licensees and spectrum lessees (or sublessees) that have
    submitted spectrum leasing notifications or applications will not be
    able, at least initially, to file by electronic means through ULS
    any amendments to such pending notifications or applications.
    Similarly, a spectrum lessee or spectrum sublessee will not be able
    to file an administrative update by electronic means through ULS,
    given the nature of the interim electronic filing process. Rather,
    amendments to notifications and applications and administrative
    updates regarding spectrum lessees and spectrum sublessees will need
    to be submitted by email, as directed in the separate public notice
    that will provide guidance to the public on the interim filing
    process. Accordingly, we waive the requirements of section 1.9060 of
    the Commission's rules, which cross-references sections 1.927 and
    1.929 of the Commission's rules, to permit parties to submit
    amendments to spectrum leasing notifications and applications and
    administrative updates concerning lessees or sublessees via an email
    filing box. We currently expect that ULS will be capable of
    accommodating the electronic filing of amendments in the near
    future, in which case we will terminate this waiver to the extent
    appropriate. We will provide notice to the public of the termination
    of the waiver.

7.  Granting waiver of the Commission rules as set forth above will
    permit the Bureau to implement interim acceptance and processing of
    spectrum leasing notifications and applications on a timely basis
    while the Commission obtains OMB approval for the revised Form 603
    and completes software changes to ULS. We believe that instituting
    an interim process upon the effective date of the new rules serves
    the public interest in facilitating the implementation of spectrum
    leasing pursuant to the Commission's *Secondary Markets Report and
    Order* at the earliest possible date. The Bureau will release a
    public notice once OMB approval has been received for the revised
    Form 603 and the ULS updates have been completed. This public notice
    will advise the public on what date they should begin to use the new
    Form 603 and the date on which the interim process and the
    associated waivers of rules will be terminated.

8.  Accordingly, IT IS ORDERED that, pursuant to Section 4(i) of the
    Communications Act of 1934, as amended, 47 U.S.C. § 154(i), section
    1.925 of the Commission's Rules, 47 C.F.R. § 1.925, and paragraph
    339 of the *Secondary Markets Report and Order*, the rules
    identified above are waived to the extent indicated and until such
    time as such waiver is terminated.

9.  This action is taken under delegated authority pursuant to sections
    0.131 and 0.331 of the Commission's Rules, 47 C.F.R. §§ 0.131,
    0.331, and paragraph 339 of the *Secondary Markets Report and
    Order*.

    FEDERAL COMMUNICATIONS COMMISSION

    John B. Muleta

    Chief

    Wireless Telecommunications Bureau

[^1]: In the Matter of Promoting Efficient Use of Spectrum Through
    Elimination of Barriers to the Development of Secondary Markets,
    *Report and Order and Further Notice of Proposed Rulemaking*, FCC
    03-113 (rel. Oct. 6, 2003) (*Secondary Markets Report and Order*);
    *Erratum*, DA 03-3780 (rel. Nov. 24, 2003).

[^2]: *See* 68 Fed. Reg. 66252 (Nov. 25, 2003).

[^3]: *See* "Effective Date of Certain Rules Adopted in the Secondary
    Markets Proceeding, WT Dkt. No. 00-230, Delayed Under February 2,
    2004," *Public Notice*, DA 04-75 (rel. Jan. 15, 2004). Sections
    1.913(a), 1.913(a)(3), 1.2002(d), 1.2003, 1.9003, 1.9020(e),
    1.9030(e), and 1.9035(e) of the Commission's rules contain
    information collections requirements that are not effective until
    approved by the Office of Management and Budget, and section
    1.948(j) of the Commission's rules is effective on April 5, 2004.

[^4]: The Form 603-T has been submitted to OMB for emergency approval.
    The interim filing process will be available promptly upon receipt
    of OMB's approval of the interim form. The Bureau will advise the
    public when the interim filing process is available.

[^5]: *Secondary Markets Report and Order*, ¶ 339.

[^6]: *See Secondary Markets Report and Order*, ¶¶ 137, 166; §§
    1.9030(c)(3), 1.9030(c)(4), and 1.9035(c) (new sections of the
    Commission's rules that pertain to spectrum leasing arrangements).