Title 47—Telecommunication--Volume 1
PART 1—PRACTICE AND PROCEDURE
§ 1.6002   Definitions.
Terms not specifically defined in this section or elsewhere in this subpart have the meanings defined in this part and the Communications Act of 1934, 47 U.S.C. 151 et seq. Terms used in this subpart have the following meanings:
(a) Action or to act on a siting application means a siting authority's grant of a siting application or issuance of a written decision denying a siting application.
(b) Antenna, consistent with § 1.1320(d), means an apparatus designed for the purpose of emitting radiofrequency (RF) radiation, to be operated or operating from a fixed location pursuant to Commission authorization, for the provision of personal wireless service and any commingled information services. For purposes of this definition, the term antenna does not include an unintentional radiator, mobile station, or device authorized under part 15 of this chapter.
(c) Antenna equipment, consistent with § 1.1320(d), means equipment, switches, wiring, cabling, power sources, shelters or cabinets associated with an antenna, located at the same fixed location as the antenna, and, when collocated on a structure, is mounted or installed at the same time as such antenna.
(d) Antenna facility means an antenna and associated antenna equipment.
(e) Applicant means a person or entity that submits a siting application and the agents, employees, and contractors of such person or entity.
(f) Authorization means any approval that a siting authority must issue under applicable law prior to the deployment of personal wireless service facilities, including, but not limited to, zoning approval and building permit.
(g) Collocation, consistent with § 1.1320(d) and the Nationwide Programmatic Agreement (NPA) for the Collocation of Wireless Antennas, appendix B of this part, section I.B, means—
(1) Mounting or installing an antenna facility on a pre-existing structure; and/or
(2) Modifying a structure for the purpose of mounting or installing an antenna facility on that structure.
(3) The definition of “collocation” in § 1.6100(b)(2) applies to the term as used in that section.
(h) Deployment means placement, construction, or modification of a personal wireless service facility.
(i) Facility or personal wireless service facility means an antenna facility or a structure that is used for the provision of personal wireless service, whether such service is provided on a stand-alone basis or commingled with other wireless communications services.
(j) Siting application or application means a written submission to a siting authority requesting authorization for the deployment of a personal wireless service facility at a specified location.
(k) Siting authority means a State government, local government, or instrumentality of a State government or local government, including any official or organizational unit thereof, whose authorization is necessary prior to the deployment of personal wireless service facilities.
(l) Small wireless facilities are facilities that meet each of the following conditions:
(1) The facilities—
(i) Are mounted on structures 50 feet or less in height including their antennas as defined in § 1.1320(d); or
(ii) Are mounted on structures no more than 10 percent taller than other adjacent structures; or
(iii) Do not extend existing structures on which they are located to a height of more than 50 feet or by more than 10 percent, whichever is greater;
(2) Each antenna associated with the deployment, excluding associated antenna equipment (as defined in the definition of antenna in § 1.1320(d)), is no more than three cubic feet in volume;
(3) All other wireless equipment associated with the structure, including the wireless equipment associated with the antenna and any pre-existing associated equipment on the structure, is no more than 28 cubic feet in volume;
(4) The facilities do not require antenna structure registration under part 17 of this chapter;
(5) The facilities are not located on Tribal lands, as defined under 36 CFR 800.16(x); and
(6) The facilities do not result in human exposure to radiofrequency radiation in excess of the applicable safety standards specified in § 1.1307(b).
(m) Structure means a pole, tower, base station, or other building, whether or not it has an existing antenna facility, that is used or to be used for the provision of personal wireless service (whether on its own or comingled with other types of services).
§ 1.6003   Reasonable periods of time to act on siting applications.
(a) Timely action required. A siting authority that fails to act on a siting application on or before the shot clock date for the application, as defined in paragraph (e) of this section, is presumed not to have acted within a reasonable period of time.
(b) Shot clock period. The shot clock period for a siting application is the sum of—
(1) The number of days of the presumptively reasonable period of time for the pertinent type of application, pursuant to paragraph (c) of this section; plus
(2) The number of days of the tolling period, if any, pursuant to paragraph (d) of this section.
(c) Presumptively reasonable periods of time —(1) Review periods for individual applications. The following are the presumptively reasonable periods of time for action on applications seeking authorization for deployments in the categories set forth in paragraphs (c)(1)(i) through (iv) of this section:
(i) Review of an application to collocate a Small Wireless Facility using an existing structure: 60 days.
(ii) Review of an application to collocate a facility other than a Small Wireless Facility using an existing structure: 90 days.
(iii) Review of an application to deploy a Small Wireless Facility using a new structure: 90 days.
(iv) Review of an application to deploy a facility other than a Small Wireless Facility using a new structure: 150 days.
(2) Batching. (i) If a single application seeks authorization for multiple deployments, all of which fall within a category set forth in either paragraph (c)(1)(i) or (iii) of this section, then the presumptively reasonable period of time for the application as a whole is equal to that for a single deployment within that category.
(ii) If a single application seeks authorization for multiple deployments, the components of which are a mix of deployments that fall within paragraph (c)(1)(i) of this section and deployments that fall within paragraph (c)(1)(iii) of this section, then the presumptively reasonable period of time for the application as a whole is 90 days.
(iii) Siting authorities may not refuse to accept applications under paragraphs (c)(2)(i) and (ii) of this section.
(d) Tolling period. Unless a written agreement between the applicant and the siting authority provides otherwise, the tolling period for an application (if any) is as set forth in paragraphs (d)(1) through (3) of this section.
(1) For an initial application to deploy Small Wireless Facilities, if the siting authority notifies the applicant on or before the 10th day after submission that the application is materially incomplete, and clearly and specifically identifies the missing documents or information and the specific rule or regulation creating the obligation to submit such documents or information, the shot clock date calculation shall restart at zero on the date on which the applicant submits all the documents and information identified by the siting authority to render the application complete.
(2) For all other initial applications, the tolling period shall be the number of days from—
(i) The day after the date when the siting authority notifies the applicant in writing that the application is materially incomplete and clearly and specifically identifies the missing documents or information that the applicant must submit to render the application complete and the specific rule or regulation creating this obligation; until
(ii) The date when the applicant submits all the documents and information identified by the siting authority to render the application complete;
(iii) But only if the notice pursuant to paragraph (d)(2)(i) of this section is effectuated on or before the 30th day after the date when the application was submitted; or
(3) For resubmitted applications following a notice of deficiency, the tolling period shall be the number of days from—
(i) The day after the date when the siting authority notifies the applicant in writing that the applicant's supplemental submission was not sufficient to render the application complete and clearly and specifically identifies the missing documents or information that need to be submitted based on the siting authority's original request under paragraph (d)(1) or (2) of this section; until
(ii) The date when the applicant submits all the documents and information identified by the siting authority to render the application complete;
(iii) But only if the notice pursuant to paragraph (d)(3)(i) of this section is effectuated on or before the 10th day after the date when the applicant makes a supplemental submission in response to the siting authority's request under paragraph (d)(1) or (2) of this section.
(e) Shot clock date. The shot clock date for a siting application is determined by counting forward, beginning on the day after the date when the application was submitted, by the number of calendar days of the shot clock period identified pursuant to paragraph (b) of this section and including any pre-application period asserted by the siting authority; provided, that if the date calculated in this manner is a “holiday” as defined in § 1.4(e)(1) or a legal holiday within the relevant State or local jurisdiction, the shot clock date is the next business day after such date. The term “business day” means any day as defined in § 1.4(e)(2) and any day that is not a legal holiday as defined by the State or local jurisdiction.
§ 1.6100   Wireless Facility Modifications.
(a) [Reserved]
(b) Definitions. Terms used in this section have the following meanings.
(1) Base station. A structure or equipment at a fixed location that enables Commission-licensed or authorized wireless communications between user equipment and a communications network. The term does not encompass a tower as defined in this subpart or any equipment associated with a tower.
(i) The term includes, but is not limited to, equipment associated with wireless communications services such as private, broadcast, and public safety services, as well as unlicensed wireless services and fixed wireless services such as microwave backhaul.
(ii) The term includes, but is not limited to, radio transceivers, antennas, coaxial or fiber-optic cable, regular and backup power supplies, and comparable equipment, regardless of technological configuration (including Distributed Antenna Systems and small-cell networks).
(iii) The term includes any structure other than a tower that, at the time the relevant application is filed with the State or local government under this section, supports or houses equipment described in paragraphs (b)(1)(i) through (ii) of this section that has been reviewed and approved under the applicable zoning or siting process, or under another State or local regulatory review process, even if the structure was not built for the sole or primary purpose of providing such support.
(iv) The term does not include any structure that, at the time the relevant application is filed with the State or local government under this section, does not support or house equipment described in paragraphs (b)(1)(i)-(ii) of this section.
(2) Collocation. The mounting or installation of transmission equipment on an eligible support structure for the purpose of transmitting and/or receiving radio frequency signals for communications purposes.
(3) Eligible facilities request. Any request for modification of an existing tower or base station that does not substantially change the physical dimensions of such tower or base station, involving:
(i) Collocation of new transmission equipment;
(ii) Removal of transmission equipment; or
(iii) Replacement of transmission equipment.
(4) Eligible support structure. Any tower or base station as defined in this section, provided that it is existing at the time the relevant application is filed with the State or local government under this section.
(5) Existing. A constructed tower or base station is existing for purposes of this section if it has been reviewed and approved under the applicable zoning or siting process, or under another State or local regulatory review process, provided that a tower that has not been reviewed and approved because it was not in a zoned area when it was built, but was lawfully constructed, is existing for purposes of this definition.
(6) Site. For towers other than towers in the public rights-of-way, the current boundaries of the leased or owned property surrounding the tower and any access or utility easements currently related to the site, and, for other eligible support structures, further restricted to that area in proximity to the structure and to other transmission equipment already deployed on the ground. The current boundaries of a site are the boundaries that existed as of the date that the original support structure or a modification to that structure was last reviewed and approved by a State or local government, if the approval of the modification occurred prior to the Spectrum Act or otherwise outside of the section 6409(a) process.
(7) Substantial change. A modification substantially changes the physical dimensions of an eligible support structure if it meets any of the following criteria:
(i) For towers other than towers in the public rights-of-way, it increases the height of the tower by more than 10% or by the height of one additional antenna array with separation from the nearest existing antenna not to exceed twenty feet, whichever is greater; for other eligible support structures, it increases the height of the structure by more than 10% or more than ten feet, whichever is greater;
(A) Changes in height should be measured from the original support structure in cases where deployments are or will be separated horizontally, such as on buildings' rooftops; in other circumstances, changes in height should be measured from the dimensions of the tower or base station, inclusive of originally approved appurtenances and any modifications that were approved prior to the passage of the Spectrum Act.
(ii) For towers other than towers in the public rights-of-way, it involves adding an appurtenance to the body of the tower that would protrude from the edge of the tower more than twenty feet, or more than the width of the tower structure at the level of the appurtenance, whichever is greater; for other eligible support structures, it involves adding an appurtenance to the body of the structure that would protrude from the edge of the structure by more than six feet;
(iii) For any eligible support structure, it involves installation of more than the standard number of new equipment cabinets for the technology involved, but not to exceed four cabinets; or, for towers in the public rights-of-way and base stations, it involves installation of any new equipment cabinets on the ground if there are no pre-existing ground cabinets associated with the structure, or else involves installation of ground cabinets that are more than 10% larger in height or overall volume than any other ground cabinets associated with the structure;
(iv) It entails any excavation or deployment outside of the current site, except that, for towers other than towers in the public rights-of-way, it entails any excavation or deployment of transmission equipment outside of the current site by more than 30 feet in any direction. The site boundary from which the 30 feet is measured excludes any access or utility easements currently related to the site;
(v) It would defeat the concealment elements of the eligible support structure; or
(vi) It does not comply with conditions associated with the siting approval of the construction or modification of the eligible support structure or base station equipment, provided however that this limitation does not apply to any modification that is non-compliant only in a manner that would not exceed the thresholds identified in § 1.40001(b)(7)(i) through (iv).
(8) Transmission equipment. Equipment that facilitates transmission for any Commission-licensed or authorized wireless communication service, including, but not limited to, radio transceivers, antennas, coaxial or fiber-optic cable, and regular and backup power supply. The term includes equipment associated with wireless communications services including, but not limited to, private, broadcast, and public safety services, as well as unlicensed wireless services and fixed wireless services such as microwave backhaul.
(9) Tower. Any structure built for the sole or primary purpose of supporting any Commission-licensed or authorized antennas and their associated facilities, including structures that are constructed for wireless communications services including, but not limited to, private, broadcast, and public safety services, as well as unlicensed wireless services and fixed wireless services such as microwave backhaul, and the associated site.
(c) Review of applications. A State or local government may not deny and shall approve any eligible facilities request for modification of an eligible support structure that does not substantially change the physical dimensions of such structure.
(1) Documentation requirement for review. When an applicant asserts in writing that a request for modification is covered by this section, a State or local government may require the applicant to provide documentation or information only to the extent reasonably related to determining whether the request meets the requirements of this section. A State or local government may not require an applicant to submit any other documentation, including but not limited to documentation intended to illustrate the need for such wireless facilities or to justify the business decision to modify such wireless facilities.
(2) Timeframe for review. Within 60 days of the date on which an applicant submits a request seeking approval under this section, the State or local government shall approve the application unless it determines that the application is not covered by this section.
(3) Tolling of the timeframe for review. The 60-day period begins to run when the application is filed, and may be tolled only by mutual agreement or in cases where the reviewing State or local government determines that the application is incomplete. The timeframe for review is not tolled by a moratorium on the review of applications.
(i) To toll the timeframe for incompleteness, the reviewing State or local government must provide written notice to the applicant within 30 days of receipt of the application, clearly and specifically delineating all missing documents or information. Such delineated information is limited to documents or information meeting the standard under paragraph (c)(1) of this section.
(ii) The timeframe for review begins running again when the applicant makes a supplemental submission in response to the State or local government's notice of incompleteness.
(iii) Following a supplemental submission, the State or local government will have 10 days to notify the applicant that the supplemental submission did not provide the information identified in the original notice delineating missing information. The timeframe is tolled in the case of second or subsequent notices pursuant to the procedures identified in this paragraph (c)(3). Second or subsequent notices of incompleteness may not specify missing documents or information that were not delineated in the original notice of incompleteness.
(4) Failure to act. In the event the reviewing State or local government fails to approve or deny a request seeking approval under this section within the timeframe for review (accounting for any tolling), the request shall be deemed granted. The deemed grant does not become effective until the applicant notifies the applicable reviewing authority in writing after the review period has expired (accounting for any tolling) that the application has been deemed granted.
(5) Remedies. Applicants and reviewing authorities may bring claims related to Section 6409(a) to any court of competent jurisdiction.
§ 1.7000   Purpose.
The purposes of this subpart are to set out the terms by which certain commercial and government-controlled entities report data to the Commission concerning:
(a) The provision of wired and wireless local telephone services and interconnected Voice over internet Protocol services;
(b) The deployment of advanced telecommunications capability, as defined in 47 U.S.C. 1302, and services that are competitive with advanced telecommunications capability; and
(c) The availability and quality of service of broadband internet access service.
§ 1.7001   Scope and content of filed reports.
(a) Definitions. Terms used in this subpart have the following meanings:
(1) Broadband connection. A wired line, wireless channel, or satellite service that terminates at an end user location or mobile device and enables the end user to receive information from and/or send information to the internet at information transfer rates exceeding 200 kilobits per second (kbps) in at least one direction.
(2) Facilities-based provider. An entity is a facilities-based provider of a service if it supplies such service using facilities that satisfy any of the following criteria:
(i) Physical facilities that the entity owns and that terminate at the end-user premises;
(ii) Facilities that the entity has obtained the right to use from other entities, such as dark fiber or satellite transponder capacity as part of its own network, or has obtained;
(iii) Unbundled network element (UNE) loops, special access lines, or other leased facilities that the entity uses to complete terminations to the end-user premises;
(iv) Wireless spectrum for which the entity holds a license or that the entity manages or has obtained the right to use via a spectrum leasing arrangement or comparable arrangement pursuant to subpart X of this Part (§§ 1.9001-1.9080); or
(v) Unlicensed spectrum.
(3) End user. A residential, business, institutional, or government entity that subscribes to a service, uses that service for its own purposes, and does not resell that service to other entities.
(4) Local telephone service. Telephone exchange or exchange access service (as defined in 47 U.S.C. 153(20 and (54)) provided by a common carrier or its affiliate (as defined in 47 U.S.C. 153(2)).
(5) Mobile telephony service. Mobile telephony (as defined in § 20.15 of this chapter) provided to end users by a commercial mobile radio service (CMRS) provider.
(6) Broadband internet access service. Has the meaning given the term in § 8.1(b) of this chapter.
(7) Broadband map. The map created by the Commission under 47 U.S.C. 642(c)(1)(A).
(8) Cell edge probability. The likelihood that the minimum threshold download and upload speeds with respect to broadband internet access service will be met or exceeded at a distance from a base station that is intended to indicate the ultimate edge of the coverage area of a cell.
(9) Cell loading. The percentage of the available air interface resources of a base station that are used by consumers with respect to broadband internet access service.
(10) Clutter. A natural or man-made surface feature that affects the propagation of a signal from a base station.
(11) Fabric. The Broadband Serviceable Location Fabric established under 47 U.S.C. 642(b)(1)(B).
(12) FCC Form 477. Form 477 of the Commission relating to local telephone competition and broadband reporting.
(13) Indian Tribe. Has the meaning given the term “Indian tribe” in section 4 of the Indian Self-Determination and Education Assistance Act (25 U.S.C. 5304).
(14) Mobility Fund Phase II. The second phase of the proceeding to provide universal service support from the Mobility Fund (WC Docket No. 10-90; WT Docket No. 10-208).
(15) Propagation model. A mathematical formulation for the characterization of radio wave propagation as a function of frequency, distance, and other conditions.
(16) Provider. A facilities-based provider of fixed or mobile broadband internet access service.
(17) Quality of service. With respect to broadband internet access service, the download and upload speeds, and latency if applicable, with respect to that service, as determined by, and to the extent otherwise collected by, the Commission.
(18) Shapefile. A digital storage format containing geospatial or location-based data and attribute information regarding the availability of broadband internet access service and that can be viewed, edited, and mapped in geographic information system software.
(19) Standard broadband installation. The initiation by a provider of fixed broadband internet access service in an area in which the provider has not previously offered that service, with no charges or delays attributable to the extension of the network of the provider, and includes the initiation of fixed broadband internet access service through routine installation that can be completed not later than 10 business days after the date on which the service request is submitted.
(20) H3 standardized geospatial indexing system. A system developed by Uber Technologies, Inc., that overlays the Earth with hexagonal cells of different sizes at various resolutions. The smallest hexagonal cells are at resolution 15, in which the average hexagonal cell has an area of approximately 0.9 square meters, and the largest are at resolution 0, in which the average hexagonal cell has an area of approximately 4.25 million square kilometers. Hexagonal cells across different resolutions are referred to as a “hex-n” cell, where n is the resolution ( e.g., “hex-15” for the smallest size hexagonal cell). The H3 standardized geospatial indexing system employs a nested cell structure wherein a lower resolution hexagonal cell (the “parent”) contains approximately seven hexagonal cells at the next highest resolution (its “children”). That is, a hex-1 cell is the “parent” of seven hex-2 cells, each hex-2 cell is the parent of seven hex-3 cells, and so on.
(b) The following entities shall file with the Commission a completed FCC Form 477, in accordance with the Commission's rules and the instructions to the FCC Form 477:
(1) Facilities-based providers of broadband service;
(2) Providers of local telephone service;
(3) Facilities-based providers of mobile telephony service; and
(4) Providers of Interconnected Voice over internet Protocol (VoIP) service (as defined in § 9.3 of this chapter) to end users.
(c) Respondents identified in paragraph (b) of this section shall include in each report a certification signed by an appropriate official of the respondent (as specified in the instructions to FCC Form 477) and shall report the title of their certifying official.
(d) Disclosure of data contained in FCC Form 477 will be addressed as follows:
(1) Emergency operations contact information contained in FCC Form 477 is information that should not be routinely available for public inspection pursuant to section 0.457 of this chapter, in addition to other information that should not be routinely available for public inspection pursuant to § 0.457.
(2)(i) Respondents may request that provider-specific subscription information in FCC Form 477 filings be treated as confidential and be withheld from public inspection by so indicating on Form 477 at the time that they submit such data.
(ii) The Commission will release the following information in FCC Form 477 filings to the public, and respondents may not request confidential treatment of such information:
(A) Provider-specific mobile deployment data;
(B) Data regarding minimum advertised or expected speed for mobile broadband services; and
(C) Location information that is necessary to permit accurate broadband mapping, including crowdsourcing or challenge processes.
(3) Respondents seeking confidential treatment of any other data contained in FCC Form 477 must submit a request that the data be treated as confidential with the submission of their Form 477 filing, along with their reasons for withholding the information from the public, pursuant to § 0.459 of this chapter.
(4) The Commission shall make all decisions regarding non-disclosure of provider-specific information, except that the Chiefs of the Office of International Affairs, Space Bureau, Wireless Telecommunications Bureau, Wireline Competition Bureau, or Office of Economics and Analytics may release provider-specific information to:
(i) A state commission, provided that the state commission has protections in place that would preclude disclosure of any confidential information,
(ii) “Eligible entities,” as those entities are defined in the Broadband Data Improvement Act, in an aggregated format and pursuant to confidentiality conditions prescribed by the Commission, and
(iii) Others, to the extent that access to such data can be accomplished in a manner that addresses concerns about the competitive sensitivity of the data and precludes public disclosure of any confidential information.
(e) Respondents identified in paragraph (b) of this section shall file a revised version of FCC Form 477 if and when they discover a significant error in their filed FCC Form 477. For counts, a difference amounting to 5 percent of the filed number is considered significant. For percentages, a difference of 5 percentage points is considered significant.
(f) Failure to file the FCC Form 477 in accordance with the Commission's rules and the instructions to the Form 477 may lead to enforcement action pursuant to the Act and any other applicable law.
§ 1.7002   Frequency of reports.
Entities subject to the provisions of § 1.7001 shall file reports semi-annually. Reports shall be filed each year on or before March 1st (reporting data required on FCC Form 477 as of December 31 of the prior year) and September 1st (reporting data required on FCC Form 477 as of June 30 of the current year). Entities becoming subject to the provisions of § 1.7001 for the first time within a calendar year shall file data for the reporting period in which they become eligible and semi-annually thereafter.
§ 1.7003   Authority to update FCC Form 477.
The Office of International Affairs, Space Bureau, Wireless Telecommunications Bureau, Wireline Competition Bureau, and Office of Economics and Analytics may update the specific content of data to be submitted on FCC Form 477 as necessary to reflect changes over time in transmission technologies, spectrum usage, Geographical Information Systems (GIS) and other data storage and processing functionalities, and other related matters; and may implement any technical improvements or other clarifications to the filing mechanism and forms.
§ 1.7004   Scope, content, and frequency of Broadband Data Collection filings.
(a) All providers shall make biannual filings with the Commission in the Broadband Data Collection portal in accordance with this subpart.
(b) Broadband Data Collection filings shall be made each year on or before March 1 (reporting data as of December 31 of the prior year) and September 1 (reporting data as of June 30 of the current year). Providers becoming subject to the provisions of this section for the first time shall file data initially for the reporting period in which they become eligible.
(c) Providers shall include in their filings data relating to the availability and quality of service of their broadband internet access service in accordance with this subpart.
(1) Each provider of terrestrial fixed or satellite broadband internet access service shall submit polygon shapefiles or a list of addresses or locations, and each provider of fixed wireless broadband internet access service shall submit propagation maps and model details that reflect the speeds and latency of its service or a list of addresses or locations, that document the areas where the provider has actually built out its broadband network infrastructure, such that the provider is able to provide service, and where the provider is capable of performing a standard broadband installation. Each provider's submission shall include the details of how it generated its polygon shapefiles, propagation maps and model details, or list of addresses or locations. 

In addition, fixed broadband internet service providers shall indicate, for each polygon shapefile or location they submit in the Broadband Data Collection, whether the reported service is available to residential customers and/or business customers.
(i) Each provider of fixed broadband internet access service shall report the maximum advertised download and upload speeds associated with its broadband internet access service available in an area. However, for service offered at speeds below 25 Mbps downstream/3 Mbps upstream, providers shall report the maximum advertised download and upload speeds associated with the service using two speed tiers: One for speeds greater than 200 kbps in at least one direction and less than 10 Mbps downstream/1 Mbps upstream, and another for speeds greater than or equal to 10 Mbps downstream/1 Mbps upstream and less than 25 Mbps downstream/3 Mbps upstream.
(ii) Each provider of fixed broadband internet access service shall indicate in its Broadband Data Collection filing whether the network round-trip latency associated with each maximum speed combination reported in a particular geographic area is less than or equal to 100 milliseconds (ms), based on the 95th percentile of measurements.
(iii) Terrestrial fixed providers using certain wireline technologies may not report coverage that exceeds a defined maximum distance from an aggregation point, including the drop distance, or that exceeds 500 feet from a deployed line or distribution network infrastructure to the parcel boundary of a served location.
(A) Terrestrial fixed providers using Digital Subscriber Line technology shall not report coverage that exceeds 6,600 route feet from the digital subscriber line access multiplexer to the customer premises for speeds offered at or above 25 Mbps downstream, 3 Mbps upstream. Providers that offer Digital Subscriber Line service in areas at speeds less than 25 Mbps downstream, 3 Mbps upstream shall not be subject to a maximum buffer requirement for such areas.
(B) Terrestrial fixed providers using Fiber to the Premises technology shall not report coverage that exceeds 196,000 route feet from the optical line termination point to the optical network termination point.
(C) Terrestrial fixed providers using Hybrid Fiber Coaxial Cable technology shall not report coverage that exceeds 12,000 route feet from the aggregation point to the customer premises.
(D) Locations can be reported as served beyond the maximum distances to the extent that:
( 1 ) A provider has a current subscriber at a location beyond the bounds of the applicable maximum distance;
( 2 ) A provider previously had a broadband subscriber, using the same technology, at a location beyond the bounds of the maximum distance;
( 3 ) A provider is receiving or has received universal service support to provide broadband service in a particular geographic area—or has other Federal, state, or local obligations to make service available in the area—and the provider has begun to make service available in that area; or
( 4 ) A provider receives a waiver to report coverage beyond the maximum distances.
(iv) Fixed wireless service providers that submit coverage maps shall submit propagation maps and propagation model details based on the following parameters:
(A) A cell edge probability of not less than 75% of receiving the maximum advertised download and upload speeds;
(B) A cell loading factor of not less than 50%; and
(C) Receiver heights within a range of four to seven meters.
(2) Fixed wireless service providers that submit coverage maps shall provide the following information with their propagation maps and model details:
(i) The name of the radio network planning tool(s) used, along with information including:
(A) The version number of the planning tool;
(B) The name of the planning tool's developer;
(C) The granularity of the model ( e.g., 3-arc-second square points); and
(D) Affirmation that the coverage model has been validated and calibrated at least one time using on the ground testing and/or other real-world measurements completed by the provider or its vendor.
(ii) The following base station information:
(A) Frequency band(s) used to provide the service being mapped;
(B) Information about whether and how carrier aggregation is used;
(C) The radio technologies used on each frequency band ( e.g., 802.11ac-derived orthogonal frequency division multiplexing modulation (OFDM), proprietary OFDM, long-term evolution (LTE)); and
(D) The elevation above ground for each base station.
(E) The geographic coordinates.
(iii) The following terrain and clutter information:
(A) The name and vintage of the datasets used;
(B) The resolution of clutter data;
(C) A list of clutter categories used with a description of each; and
(D) The link budget and a description of the other parameters used in the propagation model, including predicted signal strength.
(iv) Information on the height and power values used for receivers/customer premises equipment (CPE) antennas in their modeling (height must be within a range of four to seven meters).
(3) Mobile providers must submit coverage maps based on the following specified parameters:
(i) For 3G services—a minimum expected user download speed of 200 kbps and user upload speed of 50 kbps at the cell edge; for 4G LTE services—a minimum expected user download speed of 5 Mbps and user upload speed of 1 Mbps at the cell edge; for 5G-NR services—a minimum expected user download speed of 7 Mbps and user upload speed of 1 Mbps, and a minimum expected user download speed of 35 Mbps and user upload speed of 3 Mbps at the cell edge.
(ii) For each of the mobile broadband technologies, 3G, 4G LTE, and 5G-NR, and for mobile voice services, the provider's coverage maps must reflect coverage areas where users should expect to receive the minimum required download and upload speeds with cell edge coverage probability of not less than 90% and a cell loading of not less than 50%.
(iii) For each of the mobile broadband technologies, 3G, 4G LTE, and 5G-NR, and for mobile voice services, the provider's coverage maps must account for terrain and clutter and use terrain and clutter data with a resolution of 100 meters or better. Each coverage map must have a resolution of 100 meters or better.
(iv) For each of the mobile broadband technologies, 3G, 4G LTE, and 5G-NR, and for mobile voice services, the provider's coverage maps must be submitted in vector format.
(v) For each 4G LTE or 5G-NR propagation map that a provider submits, the provider also must submit a second set of maps showing Reference Signal Received Power (RSRP) signal levels in dBm, as would be measured at the industry standard of 1.5 meters above ground level (AGL), from each active cell site. A second set of maps showing Received Signal Strength Indicator (RSSI) signal levels for each 3G propagation map a provider submits is only required in areas where 3G is the only technology the provider offers. The RSSI and RSRP values should be provided in 10 dB increments or finer beginning with a maximum value of −50 dBm and continuing to −120 dBm.
(4) Mobile providers must disclose the following information regarding their radio network planning tools:
(i) The name of the planning tool;
(ii) The version number used to produce the map;
(iii) The name of the developer of the planning tool;
(iv) Affirmation that the coverage model has been validated and calibrated at least one time using drive test and/or other real-world measurements completed by the provider or its vendors, to include a brief summary of the process and date of calibration; and
(v) The propagation model or models used. If multiple models are used, the provider should include a brief description of the circumstances under which each model is deployed ( e.g., model X is used in urban areas, while model Y is used in rural areas) and include any sites where conditions deviate; and
(vi) The granularity of the models used ( e.g., 3-arc-second square points, bin sizes, and other parameters).
(5) Propagation maps submitted by providers must depict outdoor coverage, to include both on-street or pedestrian stationary usage, and in-vehicle mobile usage.
(6) Mobile providers must disclose all applicable link-budgets used to design their networks and provide service at the defined speeds, and all parameters and parameter values included in those link budgets, including the following information:
(i) A description of how the provider developed the link budget(s) and the rationale for using specific values in the link budget(s); and
(ii) The name of the creator, developer or supplier, as well as the vintage of the terrain and clutter datasets used, the specific resolution of the data, and a list of clutter categories used, a description of each clutter category, and a description of the propagation loss due to clutter for each.
(7) For each of the categories of data providers must disclose to the Commission, providers must submit reasonable parameter values and propagation models consistent with how they model their services when designing their networks. In no case may any provider omit link budget parameters or otherwise fail to account for constraints on their coverage projections.
(d) Providers shall include in each Broadband Data Collection filing a certification signed by a corporate officer of the provider that the officer has examined the information contained in the submission and that, to the best of the officer's actual knowledge, information, and belief, all statements of fact contained in the submission are true and correct. All providers also shall submit a certification of the accuracy of its submissions by a qualified engineer. The engineering certification shall state that the certified professional engineer or corporate engineering officer is employed by the provider and has direct knowledge of, or responsibility for, the generation of the provider's Broadband Data Collection filing. If a corporate officer is also an engineer and has the requisite knowledge required under the Broadband DATA Act, a provider may submit a single certification that fulfills both requirements. The certified professional engineer or corporate engineering officer shall certify that he or she has examined the information contained in the submission and that, to the best of the engineer's actual knowledge, information, and belief, all statements of fact contained in the submission are true and correct, and in accordance with the service provider's ordinary course of network design and engineering.
§ 1.7005   Disclosure of data in the Fabric and Broadband Data Collection filings.
(a) The Commission shall protect the security, privacy, and confidentiality of non-public or competitively sensitive information submitted by entities or individuals, including information contained in the Fabric, the dataset supporting the Fabric, and availability data submitted pursuant to § 1.7004, by:
(1) Withholding from public inspection all data required to be kept confidential pursuant to § 0.457 of this chapter and all personally identifiable information submitted in connection with the information contained in the Fabric, the dataset supporting the Fabric, and availability data submitted pursuant to § 1.7004; and
(2) Subject to contractual or license restrictions, making public all other information received about the status of broadband internet access service availability at specific locations, including geographic coordinates and street addresses, whether a provider has reported availability at a location, and whether an entity or individual has disputed a report of broadband internet access service availability at such location.
(b) Providers may request that provider-specific subscription information in Digital Opportunity Data Act filings be treated as confidential and be withheld from public inspection by so indicating on the filing at the time that they submit such data.
(c) Providers seeking confidential treatment of any other data contained in their Broadband Data Collection filings must submit a request that the data be treated as confidential with the submission of their filing, along with their reasons for withholding the information from the public, pursuant to § 0.459 of this chapter.
(d) The Commission shall make all decisions regarding non-disclosure of provider-specific information.
(e) The Commission shall release the following information in Broadband Data Collection filings to the public, and providers may not request confidential treatment of such information:
(1) Provider-specific mobile deployment data;
(2) Data regarding minimum advertised or expected speed for mobile broadband internet access services; and
(3) Location information that is necessary to permit accurate broadband mapping, including as part of the crowdsourcing or challenge processes.
§ 1.7006   Data verification.
(a) Audits. The Office of Economics and Analytics, in coordination with the Wireless Telecommunications Bureau, Wireline Competition Bureau, and Space Bureau, shall conduct regular audits of the information submitted by providers in their Broadband Data Collection filings. The audits:
(1) May be random, as determined by the Office of Economics and Analytics; or
(2) Can be required in cases where there may be patterns of filing incorrect information, as determined by the Office of Economics and Analytics.
(b) Crowdsourcing process. Entities or individuals may submit in the Commission's online portal specific information regarding the deployment and availability of broadband internet access service so that it may be used to verify and supplement information submitted by providers for potential inclusion in the coverage maps.
(1) Crowdsourced data filers shall provide:
(i) Contact information of the filer ( e.g., name, address, phone number, and email);
(ii) The location that is the subject of the filing, including the street address and/or coordinates (latitude and longitude) of the location;
(iii) The name of the provider;
(iv) Any relevant details disputing the deployment and availability of broadband internet access service at the location; and
(v) A certification that to the best of the filer's actual knowledge, information, and belief, all statements in the filing are true and correct.
(2) On-the-ground crowdsourced data must include the metrics and meet the testing parameters described in paragraphs (c)(1)(i) and (ii) of this section, except that the data may include any combination of download speed and upload speed rather than both.
(3) The online portal shall notify a provider of a crowdsourced data filing against it, but a provider is not required to respond to a crowdsourced data filing.
(4) If, as a result of crowdsourced data and/or other available data, the Commission determines that a provider's coverage information is likely not accurate, then the provider shall be subject to a verification inquiry consistent with the mobile verification process described in paragraph (c) of this section.
(5) All information submitted as part of the crowdsourcing process shall be made public via the Commission's website, with the exception of personally identifiable information and any data required to be confidential under § 0.457 of this chapter.
(c) Mobile service verification process for mobile providers. Mobile service providers must submit either infrastructure information or on-the-ground test data in response to a request by Commission staff as part of its inquiry to independently verify the accuracy of the mobile provider's coverage propagation models and maps. In addition to submitting either on-the-ground data or infrastructure data, a provider may also submit data collected from transmitter monitoring software. The Office of Economics and Analytics and the Wireless Telecommunications Bureau may require the submission of additional data when necessary to complete a verification inquiry. A provider must submit its data, in the case of both infrastructure information and on-the-ground data, within 60 days of receiving a Commission staff request. Regarding on-the-ground data, a provider must submit evidence of network performance based on a sample of on-the-ground tests that is statistically appropriate for the area tested. A provider must verify coverage of a sampled area using the H3 geospatial indexing system at resolution 8. The on-the-ground tests will be evaluated to confirm, using a one-sided 95% statistical confidence interval, that the cell coverage is 90% or higher. In submitting data in response to a verification request, a provider must record at least two tests within each of the randomly selected hexagons where the time of the tests are at least four hours apart, irrespective of date, unless, for any sampled hexagon, the provider has and submits alongside its speed tests actual cell loading data for the cell(s) covering the hexagon sufficient to establish that median loading, measured in 15-minute intervals, did not exceed the modeled loading factor for the one-week period prior to the verification inquiry, in which case the provider is required to submit only a single test for the sampled hexagon. We will treat any tests within the sampled accessible point-hex that are outside the coverage area as valid in the case where tests were not recorded within the coverage area. If the required sampled point-hex continue to have missing tests, we will also consider tests that fall slightly outside the required point-hex but within the typical Global Positioning System (GPS) average user range error as valid when no tests are recorded within the point-hex. If the sampled point-hex still has missing tests, we would set those missing required speed tests as negative tests when performing the final adjudication. For in-vehicle mobile tests, providers must conduct tests with the antenna located inside the vehicle.
(1) When a mobile service provider chooses to demonstrate mobile broadband coverage availability by submitting on-the-ground data, the mobile service provider must provide valid on-the-ground tests within a Commission-identified statistically valid and unbiased sample of its network.
(i) On-the-ground test data must meet the following testing parameters:
(A) A minimum test length of 5 seconds and a maximum test length of 30 seconds. These test length parameters apply individually to download speed, upload speed, and round-trip latency measurements, and do not include ramp up time. The minimum test duration requirement will be relaxed once a download or upload test measurement has transferred at least 1,000 megabytes of data;
(B) Reporting test measurement results that have been averaged over the duration of the test ( i.e., total bits received divided by total test time); and
(C) Conducted outdoors between the hours of 6:00 a.m. and 10:00 p.m. local time; and
(ii) On-the-ground test data must include the following metrics for each test:
(A) Testing app name and version;
(B) Timestamp and duration of each test metric;
(C) Geographic coordinates ( i.e., latitude/longitude) measured at the start and end of each test metric measured with typical GPS Standard Positioning Service accuracy or better, along with location accuracy;
(D) Consumer-grade device type(s), brand/model, and operating system used for the test;
(E) Name and identity of the service provider being tested;
(F) Location of test server ( e.g., hostname or IP address);
(G) Signal strength, signal quality, unique identifier, and radiofrequency metrics of each serving cell, where available;
(H) Download speed;
(I) Upload speed;
(J) Round-trip latency;
(K) Whether the test was taken in an in-vehicle mobile or outdoor, pedestrian stationary environment;
(L) For an in-vehicle test, the speed the vehicle was traveling when the test was taken, where available;
(M) An indication of whether the test failed to establish a connection with a mobile network at the time and place it was initiated;
(N) The network technology ( e.g., 4G LTE (Long Term Evolution), 5G-NR (New Radio)) and spectrum bands used for the test; and
(O) All other metrics required per the most recent specification for mobile test data adopted by Office of Economics and Analytics and the Wireless Telecommunications Bureau in accordance with 5 U.S.C. 553.
(2) When a mobile service provider chooses to demonstrate mobile broadband coverage availability by submitting infrastructure data, the mobile service provider must submit such data for all cell sites and antennas that serve or interfere with the targeted area.
(i) Infrastructure data must include the following information for each cell site that the provider uses to provide service for the area subject to the verification inquiry:
(A) The latitude and longitude of the cell site measured with typical GPS Standard Positioning Service accuracy or better;
(B) The cell and site ID number for each cell site;
(C) The ground elevation above mean sea level (AMSL) of the site (in meters);
(D) Frequency band(s) used to provide service for each site being mapped including channel bandwidth (in megahertz);
(E) Radio technologies used on each band for each site;
(F) Capacity (megabits per second (Mbps)) and type of backhaul used at each cell site;
(G) Number of sectors at each cell site;
(H) Effective Isotropic Radiated Power (EIRP, in decibel-milliwatts (dBm)) of the sector at the time the mobile provider creates its map of the coverage data;
(I) Geographic coordinates of each transmitter site measured with typical GPS Standard Positioning Service accuracy or better;
(J) Per site classification ( e.g., urban, suburban, or rural);
(K) Elevation above ground level for each base station antenna and other transmit antenna specifications ( i.e., the make and model, beamwidth (in degrees), radiation pattern, and orientation (azimuth and any electrical and/or mechanical down-tilt in degrees) at each cell site);
(L) Operate transmit power of the radio equipment at each cell site;
(M) Throughput and associated required signal strength and signal-to-noise ratio;
(N) Cell loading distribution;
(O) Areas enabled with carrier aggregation and a list of band combinations; and
(P) Any additional parameters and fields that are listed in the most-recent specifications for wireless infrastructure data released by the Office of Economics and Analytics and the Wireless Telecommunications Bureau in accordance with 5 U.S.C. 553.
(ii) [Reserved]
(d) Fixed service challenge process. State, local, and Tribal governmental entities, consumers, and other entities or individuals may submit data in an online portal to challenge the accuracy of the coverage maps at a particular location, any information submitted by a provider regarding the availability of broadband internet access service, or the Fabric.
(1) Challengers must provide in their submissions:
(i) Name and contact information ( e.g., address, phone number, email);
(ii) The street address or geographic coordinates (latitude/longitude) of the location(s) at which broadband internet access service coverage is being challenged;
(iii) Name of provider whose reported coverage information is being challenged;
(iv) Category of dispute, selected from pre-established options on the portal;
(v) For consumers challenging availability data or the coverage maps, evidence and details of a request for service (or attempted request for service), including the date, method, and content of the request and details of the response from the provider, or evidence showing no availability at the disputed location ( e.g., screen shot, emails);
(vi) For government or other entities, evidence and details about the dispute, including: (A) The challenger's methodology, (B) the basis for determinations underlying the challenge, and (C) communications with provider, if any, and outcome;
(vii) For challengers disputing locations in the Broadband Location Fabric, details and evidence about the disputed location;
(viii) For customer or potential customer availability or coverage map challengers, a representation that the challenger resides or does business at the location of the dispute or is authorized to request service there; and
(ix) A certification from an individual or an authorized officer or signatory of a challenger that the person examined the information contained in the challenge and that, to the best of the person's actual knowledge, information, and belief, all statements of fact contained in the challenge are true and correct.
(2) The online portal shall alert a provider if there has been a challenge with all required elements submitted against it.
(3) For availability and coverage map challenges, within 60 days of receiving an alert, a provider shall reply in the portal by:
(i) Accepting the allegation(s) raised by the challenger, in which case the provider shall submit a correction for the challenged location in the online portal within 30 days of its portal reply; or
(ii) Denying the allegation(s) raised by the challenger, in which the case the provider shall provide evidence, in the online portal and to the challenger, that the provider serves (or could and is willing to serve) the challenged location. If the provider denies the allegation(s) raised by the challenger, then the provider and the challenger shall have 60 days after the provider submits its reply to attempt to resolve the challenge.
(4) A provider's failure to respond to a challenge to its reported coverage data within the applicable timeframes shall result in a finding against the provider, resulting in mandatory corrections to the provider's Broadband Data Collection information to conform to the challenge. Providers shall submit any such corrections within 30 days of the missed reply deadline or the Commission will make the corrections on its own and incorporate such change into the coverage maps.
(5) Once a challenge containing all the required elements is submitted in the online portal, the location shall be identified on the coverage maps as “in dispute/pending resolution.”
(6) If the parties are unable to reach consensus within 60 days after submission of the provider's reply in the portal, then the affected provider shall report the status of efforts to resolve the challenge in the online portal. After the affected provider reports on the status of these efforts (including any amended report submitted prior to the 60-day deadline), the Commission shall have 90 days to review the evidence and make a determination, either:
(i) In favor of the challenger, in which case the provider shall update its Broadband Data Collection information within 30 days of the decision; or
(ii) In favor of the provider, in which case the location will no longer be subject to the “in dispute/pending resolution” designation on the coverage maps.
(7) In consumer challenges to availability and coverage map data, a consumer's challenge must make an initial showing, by a preponderance of the evidence, that a provider's data are inaccurate; a provider must then provide evidence showing, by a preponderance of the evidence, that its reported data are accurate.
(8) In challenges to availability and coverage data by governmental (State, local, Tribal), or other entities, the challenger must make a detailed, clear and methodologically sound showing, by clear and convincing evidence, that a provider's data are inaccurate.
(9) For challenges to the Fabric, after a challenge has been filed containing the required information in paragraph (d)(1) of this section, the provider will receive a notice of the challenge from the online portal and can respond to the challenge in the online portal, but is not required to do so, and the Commission shall seek to resolve such challenges within 60 days of receiving the challenge filing in the online portal.
(10) Government entities or other entities may file challenges at multiple locations in a single challenge, but each challenge must contain all of the requirements set forth in (d)(1) of this section.
(11) The Commission shall make public information about the location that is the subject of the challenge (including the street address and/or coordinates (latitude and longitude)), the name of the provider, and any relevant details concerning the basis for the challenge.
(e) Mobile service challenge process for consumers. Consumers may submit data to challenge the accuracy of mobile broadband coverage maps. Consumers may challenge mobile coverage data based on lack of service or on poor service quality such as slow delivered user speed.
(1) Consumer challengers must provide in their submissions:
(i) Name, email address, and mobile phone number of the device on which the speed test was conducted;
(ii) Speed test data. Consumers must use a speed test app that has been designated by the Office of Engineering and Technology, in consultation with the Office of Economics and Analytics and the Wireless Telecommunications Bureau, for use in the challenge process. Consumer challenges must include on-the-ground test data that meets the requirements in paragraphs (c)(1)(i) and (ii) of this section, and must also report the timestamp that test measurement data were transmitted to the app developer's servers, as well as the source IP address and port of the device, as measured by the server;
(iii) A certification that the challenger is a subscriber or authorized user of the provider being challenged;
(iv) A certification that the speed test measurements were taken outdoors; and
(v) A certification that, to the best of the person's actual knowledge, information, and belief, the handset and the speed test application are in ordinary working order and all statements of fact contained in the submission are true and correct.
(2) Consumer speed tests will be used to create a cognizable challenge based on the following criteria:
(i) The smallest challengeable hexagonal cell is a hexagon at resolution 8 from the H3 standardized geospatial indexing system.
(ii) The download and upload components of a speed test will be evaluated separately.
(iii) A “positive” component is one that records speeds meeting or exceeding the minimum speeds that the mobile service provider reports as available where the test occurred ( e.g., a positive download component would show speeds of at least 5 Mbps for 4G LTE, and a positive upload component would show speeds of at least 1 Mbps for 4G LTE). A “negative” component is one that records speeds that fail to meet the minimum speeds that the mobile service provider reports as available where the test occurred.
(iv) A point-hex shall be defined as one of the seven hex-9s from the H3 standardized geospatial indexing system nested within a hex-8.
(v) A point-hex shall be defined as accessible where at least 50% of the area of the point-hex overlaps with the provider's reported coverage data and the point-hex overlaps with any primary, secondary, or local road in the U.S. Census Bureau's TIGER/Line Shapefiles.
(vi) A hex-8 from the H3 standardized geospatial indexing system shall be classified as challenged if the following three thresholds are met in the hex-8 for either the download or upload components.
(A) Geographic threshold. When there are at least four accessible point-hexes within the hex-8, each must contain two of the same test components (download or upload), one of which is a negative test. The threshold must be met for one component entirely, meaning that a challenge may contain either two upload components per point-hex, one of which is negative, or two download components per point-hex, one of which is negative. The minimum number of point-hexes in which tests must be recorded must be equal to the number of accessible point-hexes or four, whichever number is lower. If there are no accessible point-hexes within a hex-8, the geographic threshold shall not need to be met;
(B) Temporal threshold. A hex-8 cell must include a set of two negative test components of the same type with a time-of-day difference of at least four hours from another set of two negative test components of the same type, regardless of the date of the tests; and
(C) Testing threshold. At least five speed test components of the same type within a hex-8 cell are negative when a challenger has submitted 20 or fewer test components of that type.
( 1 ) When challengers have submitted more than 20 test components of the same type, the following minimum percentage of the total number of test components of that type in the cell must be negative:
( i ) When challengers have submitted 21-29 test components, at least 24% must be negative;
( ii ) When challengers have submitted 30-45 test components, at least 22% must be negative;
( iii ) When challengers have submitted 46-60 test components, at least 20% must be negative;
( iv ) When challengers have submitted 61-70 test components, at least 18% must be negative;
( v ) When challengers have submitted 71-99 test components, at least 17% must be negative; and
( vi ) When challengers have submitted 100 or more test components, at least 16% must be negative.
( 2 ) In a hex-8 with four or more accessible point-hexes, if the number of test components of the same type in one point-hex represent more than 50% of the total test components of that type in the hex-8 but still satisfies the geographic threshold, the components in that point-hex will count only towards 50% of the threshold. In a hex-8 where there are only three accessible point-hexes, if the number of test components of the same type in one point-hex represent more than 75% of the total test components of that type in the hex-8 but still satisfies the geographic threshold, the components in that point-hex will count only towards 75% of the threshold.
( 3 ) Once the percentage of negative components of the same type recorded meets the minimum negative percentage required (or for a sample of fewer than 21 components, once there are at least five negative component submitted), no additional tests are required so long as both the geographic and temporal thresholds for a hex-8 have been met.
(vii) A larger, “parent” hexagon (at resolutions 7 or 6) shall be considered challenged if at least four of the child hexagons within such a “parent” hexagon are considered challenged.
(viii) Mobile service providers shall be notified of all cognizable challenges to their mobile broadband coverage maps at the end of each month. Challengers shall be notified when a mobile provider responds to the challenge. Mobile service providers and challengers both shall be notified monthly of the status of challenged areas and parties will be able to see a map of the challenged area and a notification about whether or not a challenge has been successfully rebutted, whether a challenge was successful, and if a challenged area was restored based on insufficient evidence to sustain a challenge.
(3) For areas with a cognizable challenge, providers either must submit a rebuttal to the challenge within a 60-day period of being notified of the challenge or concede and have the challenged area identified on the mobile coverage map as an area that lacks sufficient service.
(4) To dispute a challenge, a mobile service provider must submit on-the-ground test data that meets the requirements in paragraphs (c)(1)(i) and (ii) of this section, (for in-vehicle mobile tests, providers must conduct tests with the antenna located inside the vehicle), or infrastructure data that meets the requirements in paragraph (c)(2)(i) of this section to verify its coverage map(s) in the challenged area. To the extent that a mobile service provider believes it would be helpful to the Commission in resolving a challenge, it may choose to submit other data in addition to the data initially required, including but not limited to either infrastructure or on-the-ground testing (to the extent such data are not the primary option chosen by the provider) or other types of data such as data collected from network transmitter monitoring systems or software, or spectrum band-specific coverage maps. Such other data must be submitted at the same time as the primary on-the-ground testing or infrastructure rebuttal data submitted by the provider. If needed to ensure an adequate review, the Office of Economics and Analytics may also require that the provider submit other data in addition to the data initially submitted, including but not limited to either infrastructure or on-the-ground testing data (to the extent not the option initially chosen by the provider) or data collected from network transmitter monitoring systems or software (to the extent available in the provider's network). If a mobile provider is not able to demonstrate sufficient coverage in a challenged hexagon, the mobile provider must revise its coverage maps to reflect the lack of coverage in such areas.
(i) A “positive” component is one that records speeds meeting or exceeding the minimum speeds that the mobile service provider reports as available where the test occurred ( e.g., a positive download component would show speeds of at least 5 Mbps for 4G LTE, and a positive upload component would show speeds of at least 1 Mbps for 4G LTE). A “negative” component is one that records speeds that fail to meet the minimum speeds that the mobile service provider reports as available where the test occurred.
(ii) A point-hex shall be defined as one of the seven nested hexagons at resolution 9 from the H3 standardized geospatial indexing system of a resolution 8 hexagon.
(iii) A point-hex shall be defined as accessible where at least 50% of the area of the point-hex overlaps with the provider's reported coverage data and the point-hex overlaps with any primary, secondary, or local road in the U.S. Census Bureau's TIGER/Line Shapefiles.
(iv) A mobile service provider that chooses to rebut a challenge to their mobile broadband coverage maps with on-the-ground speed test data must confirm that a challenged area has sufficient coverage using speed tests that were conducted during the 12 months prior to submitting a rebuttal. A provider may confirm coverage in any hex-8 cell within the challenged area. This includes any hex-8 cell that is challenged, and also any non-challenged hex-8 cell that is a child of a challenged hex-7 or hex-6 cell. Confirming non-challenged hex-8 cells can be used to confirm the challenged hex-7 or hex-6 cell. To confirm a hex-8 cell, a provider must submit on-the ground speed test data that meets the following criteria for both upload and download components:
(A) Geographic threshold. Two download components, at least one of which is a positive test, and two upload components, at least one of which is a positive test, are recorded within a minimum number of point-hexes within the challenged area, where the minimum number of point-hexes in which tests must be recorded must be equal to the number of accessible point-hexes or four, whichever number is lower. If there are no accessible point-hexes within a hex-8, the geographic threshold shall not need to be met.
(B) Temporal threshold. A hex-8 cell will need to include a set of five positive test components of the same type with a time-of-day difference of at least four hours from another set of five positive test components of the same type, regardless of the date of the test.
(C) Testing threshold. At least 17 positive test components of the same type within a hex-8 cell in the challenged area when the provider has submitted 20 or fewer test components of that type. When the provider has submitted more than 20 test components of the same type, a certain minimum percentage of the total number of test components of that type in the cell must be positive:
( 1 ) When a provider has submitted 21-34 test components, at least 82% must be positive;
( 2 ) When a provider has submitted 35-49 test components, at least 84% must be positive;
( 3 ) When a provider has submitted 50-70 test components, at least 86% must be positive;
( 4 ) When a provider has submitted 71-99 test components, at least 87% must be positive;
( 5 ) When a provider has submitted 100 or more test components, at least 88% must be positive; and
( 6 ) In a hex-8 with four or more accessible point-hexes, if the number of test components of the same type in one point-hex represent more than 50% of the total test components of that type in the hex-8 but still satisfies the geographic threshold, the components in that point-hex will count only toward 50% of the threshold. In a hex-8 where there are only three accessible point-hexes, if the number of test components of the same type in one point-hex represent more than 75% of the total test components of that type in the hex-8 but still satisfies the geographic threshold, the components in that point-hex will count only toward 75% of the threshold.
(D) Use of FCC Speed Test App or other software. Using a mobile device running either a Commission-developed app ( e.g., the FCC Speed Test app), another speed test app approved by OET to submit challenges, or other software provided that the software adopts the test methodology and collects the metrics that approved apps must perform for consumer challenges and that government and third-party entity challenger speed test data must contain (for in-vehicle mobile tests, providers must conduct tests with the antenna located inside the vehicle):
( 1 ) Providers must submit a complete description of the methodologies used to collect their data; and
( 2 ) Providers must substantiate their data through the certification of a qualified engineer or official.
(E) Use of an appropriate device. Using a device that is able to interface with drive test software and/or runs on the Android operating system.
(v) A mobile service provider that chooses to rebut a challenge to their mobile broadband coverage maps with infrastructure data on their own may only do so in order to identify invalid, or non-representative, speed tests within the challenger speed test data. The mobile service provider must submit the same data as required when a mobile provider submits infrastructure information in response to a Commission verification request, including information on the cell sites and antennas used to provide service in the challenged area. A provider may submit only infrastructure data to rebut a challenge if:
(A) Extenuating circumstances at the time and location of a given test ( e.g., maintenance or temporary outage at the cell site) caused service to be abnormal. In such cases, a provider must submit coverage or footprint data for the site or sectors that were affected and information about the outage, such as bands affected, duration, and whether the outage was reported to the FCC's Network Outage Reporting System (NORS), along with a certification about the submission's accuracy;
(B) The mobile device(s) with which the challenger(s) conducted their speed tests are not capable of using or connecting to the radio technology or spectrum band(s) that the provider models for service in the challenged area. In such cases, a provider must submit band-specific coverage footprints and information about which specific device(s) lack the technology or band;
(C) The challenge speed tests were taken during an uncommon special event ( e.g., professional sporting event) that increased traffic on the network;
(D)( 1 ) The challenge speed tests were taken during a period where cell loading was abnormally higher than the modeled cell loading factor. In such cases, providers must submit cell loading data that both:
( i ) Establish that the cell loading for the primary cell(s) at the time of the test was abnormally higher than modeled; and
( ii ) Include cell loading data for a one-week period before and/or after the provider was notified of the challenge showing as a baseline that the median loading for the primary cell(s) was not greater than the modeled value.
( 2 ) If a high number of challenges show persistent over-loading, staff may initiate a verification inquiry to investigate whether mobile providers have submitted coverage maps based on an accurate assumption of cell loading in a particular area;
(E) The mobile device(s) with which the challenger(s) conducted their speed tests used a data plan that could result in slower service. In such cases, a provider must submit information about which specific device(s) used in the testing were using such a data plan and information showing that the provider's network did, in fact, slow the device at the time of the test; or
(F) The mobile device(s) with which the challenger(s) conducted their speed tests was either roaming or was used by the customer of a mobile virtual network operator. In such circumstances, providers must identify which specific device(s) used in the testing were either roaming at the time or used by the customer of a mobile virtual network operator based upon their records.
(vi) If the Commission determines, based on the infrastructure data submitted by providers, that challenge speed tests are invalid, such challenge speed tests shall be ruled void, and the Commission shall recalculate the challenged hexagons after removing any invalidated challenger speed tests and consider any challenged hexagons that no longer meet the challenge creation threshold to be restored to their status before the challenge was submitted.
(5) Commission staff will resolve the challenge within 90 days following the 60th day after which the provider is notified of the challenge ( i.e., the deadline for submitting challenge rebuttal data), except that, should the Office of Economics and Analytics (OEA) request supplemental information from a provider after receiving the provider's initial challenge response, the Commission will resolve the challenge within 90 days following the 60th day after which staff request such supplemental data ( i.e., 90 days after the deadline for when the supplemental data is due to OEA).
(6) If a mobile service provider that has failed to rebut a challenge subsequently takes remedial action to improve coverage at the location of the challenge, the provider must notify the Commission of the actions it has taken to improve its coverage and provide either on-the-ground test data or infrastructure data to verify its improved coverage.
(7) After a challenged provider submits all responses and Commission staff determines the result of a challenge and any subsequent rebuttal has been determined:
(i) In such cases where a mobile service provider successfully rebuts a challenge, the area confirmed to have coverage shall be ineligible for challenge until the next biannual broadband availability data filing six months after the later of either the end of the 60-day response period or the resolution of the challenge.
(ii) A challenged area may be restored to an unchallenged state, if, as a result of data submitted by the provider, there is no longer sufficient evidence to sustain the challenge to that area, but the provider's data fall short of confirming the area. A restored hexagon would be subject to challenge at any time in the future as challengers submit new speed test data.
(iii) In cases where a mobile service provider concedes or loses a challenge, the provider must file, within 30 days, geospatial data depicting the challenged area that has been shown to lack sufficient service. Such data will constitute a correction layer to the provider's original propagation model-based coverage map, and Commission staff will use this layer to update the broadband coverage map. In addition, to the extent that a provider does not later improve coverage for the relevant technology in an area where it conceded or lost a challenge, it must include this correction layer in its subsequent filings to indicate the areas shown to lack service.
(8) Commission staff are permitted to consider other relevant data to support a mobile service provider's rebuttal of challenges, including on-the-ground data or infrastructure data (to the extent such data are not the primary rebuttal option submitted by the mobile service provider). The Office of Economics and Analytics will review such data when voluntarily submitted by providers in response to challenges, and if it concludes that any of the data sources are sufficiently reliable, it will specify appropriate standards and specifications for each type of data and will issue a public notice adding the data source to the alternatives available to providers to rebut a consumer challenge.
(f) Mobile service challenge process for State, local, and Tribal governmental entities; and other entities or individuals. State, local, and Tribal governmental entities and other entities or individuals may submit data to challenge accuracy of mobile broadband coverage maps. They may challenge mobile coverage data based on lack of service or poor service quality such as slow delivered user speed.
(1) State, local, and Tribal governmental entities and other entity or individual challengers must provide in their submissions:
(i) Government and other entity challengers may use their own software and hardware to collect data for the challenge process. When they submit their data the data must meet the requirements in paragraphs (c)(1)(i) and (ii) of this section, except that government and other entity challengers may submit the International Mobile Equipment Identity (IMEI) of the device used to conduct a speed test for use in the challenge process instead of the timestamp that test measurement data were transmitted to the app developer's servers, as well as the source IP address and port of the device, as measured by the server;
(ii) A complete description of the methodology(ies) used to collect their data;
(iii) Challengers must substantiate their data through the certification of a qualified engineer or official; and
(iv) If the test was taken in an in-vehicle mobile environment, whether the test was conducted with the antenna outside of the vehicle.
(2) Challengers must conduct speed tests using a device advertised by the challenged service provider as compatible with its network and must take all speed tests outdoors. Challengers must also use a device that is able to interface with drive test software and/or runs on the Android operating system.
(3) For a challenge to be considered a cognizable challenge, thus requiring a mobile service provider response, the challenge must meet the same thresholds specified in paragraph (e)(2) of this section.
(4) For areas with a cognizable challenge, providers either must submit a rebuttal to the challenge within a 60-day period of being notified of the challenge or concede and have the challenged area identified on the mobile coverage map as an area that lacks sufficient service.
(5) To dispute a challenge, a mobile service provider must submit on-the-ground test data or infrastructure data to verify its coverage map(s) in the challenged area based on the methodology set forth in paragraph (e)(4) of this section. To the extent that a service provider believes it would be helpful to the Commission in resolving a challenge, it may choose to submit other data in addition to the data initially required, including but not limited to either infrastructure or on-the-ground testing (to the extent such data are not the primary option chosen by the provider) or other types of data such as data collected from network transmitter monitoring systems or software or spectrum band-specific coverage maps. Such other data must be submitted at the same time as the primary on-the-ground testing or infrastructure rebuttal data submitted by the provider. If needed to ensure an adequate review, the Office of Economics and Analytics may also require that the provider submit other data in addition to the data initially submitted, including but not limited to either infrastructure or on-the-ground testing data (to the extent not the option initially chosen by the provider) or data collected from network transmitter monitoring systems or software (to the extent available in the provider's network).
(6) Commission staff will resolve the challenge within 90 days following the 60th day after which the provider is notified of the challenge ( i.e., the deadline for submitting challenge rebuttal data), except that, should the OEA request supplemental information from a provider after receiving the provider's initial challenge response, the Commission will resolve the challenge within 90 days following the 60th day after which staff request such supplemental data ( i.e., 90 days after the deadline for when the supplemental data is due to OEA).
(7) If a provider that has failed to rebut a challenge subsequently takes remedial action to improve coverage at the location of the challenge, the provider must notify the Commission of the actions it has taken to improve its coverage and provide either on-the-ground test data or infrastructure data to verify its improved coverage.
(8) In cases where a mobile service provider concedes or loses a challenge, the provider must file, within 30 days, geospatial data depicting the challenged area that has been shown to lack service. Such data will constitute a correction layer to the provider's original propagation model-based coverage map, and Commission staff will use this layer to update the broadband coverage map. In addition, to the extent that a provider does not later improve coverage for the relevant technology in an area where it conceded or lost a challenge, it must include this correction layer in its subsequent Broadband Data Collection filings to indicate the areas shown to lack service.
§ 1.7007   Establishing the Fabric.
(a) The Commission shall create the Fabric, a common dataset of all locations in the United States where fixed broadband internet access service can be installed. The Fabric shall:
(1) Contain geocoded information for each location where fixed broadband internet access service can be installed;
(2) Serve as the foundation upon which all data relating to the availability of fixed broadband internet access service collected pursuant to the Broadband Data Collection shall be overlaid;
(3) Be compatible with commonly used Geographical Information Systems (GIS) software; and
(4) Be updated every 6 months by the Commission.
(b) The Commission shall prioritize implementing the Fabric for rural and insular areas of the United States.
§ 1.7008   Creation of broadband internet access service coverage maps.
(a) After consultation with the Federal Geographic Data Committee, the Commission shall use the availability and quality of service data submitted by providers in the Broadband Data Collection to create:
(1) The Broadband Map, which shall depict areas of the country that remain unserved by providers and depict the extent of availability of broadband internet access service;
(2) A map that depicts the availability of fixed broadband internet access service; and
(3) A map that depicts the availability of mobile broadband internet access service.
(b) The Commission shall use the maps created in paragraph (a) of this section to determine areas where broadband internet access service is and is not available and when making any funding award for broadband internet access service deployment for residential and mobile customers.
(c) Based on the most recent Broadband Data Collection information collected from providers, the Commission shall update the maps created in paragraph (a) of this section at least biannually using the data collected from providers.
(d)(1) The Commission shall collect verified data for use in the coverage maps from:
(i) State, local, and Tribal entities primarily responsible for mapping or tracking broadband internet access service coverage in their areas;
(ii) Third parties, if the Commission determines it is in the public interest to use their data in the development of the coverage maps or the verification of data submitted by providers; and
(iii) Other Federal agencies.
(2) To the extent government entities or third parties choose to file verified data, they must follow the same filing process as providers submitting their broadband internet access service data in the data portal. Government entities and third parties that file on-the-ground test data must submit such data using the same metrics and testing parameters the Commission requires of mobile service providers when responding to a Commission request to verify mobile providers' broadband network coverage with on-the-ground data ( see § 1.7006(c)(1)).
(3) Providers shall review the verified data submitted by governments and third parties in the online portal, work with the submitter to resolve any coverage discrepancies, make any corrections they deem necessary based on such review, and submit any updated data to the Commission within 60 days of the date that the provider is notified that the data has been submitted in the online portal by the government entity or third party.
§ 1.7009   Enforcement.
(a) It shall be unlawful for an entity or individual to willfully and knowingly, or recklessly, submit information or data as part of the Broadband Data Collection that is materially inaccurate or incomplete with respect to the availability or the quality of broadband internet access service. Such action may lead to enforcement action and/or penalties as set forth in the Communications Act and other applicable laws.
(b) Failure to make the Broadband Data Collection filing in accordance with the Commission's rules and the instructions to the Broadband Data Collection may lead to enforcement action pursuant to the Communications Act of 1934, as amended, and any other applicable law.
(c) For purposes of this section, “materially inaccurate or incomplete” means a submission that contains omissions or incomplete or inaccurate information that the Commission finds has a substantial impact on its collection and use of the data collected in order to comply with the requirements of 47 U.S.C. 641-646.
(d) Providers must file corrected data when they discover inaccuracy, omission, or significant reporting error in the original data that they submitted, whether through self-discovery, the crowdsource process, the challenge process, the Commission verification process, or otherwise.
(1) Providers must file corrections within 30 days of their discovery of incorrect or incomplete data; and
(2) The corrected filings must be accompanied by the same types of certifications that accompany the original filings.
§ 1.7010   Authority to update the Broadband Data Collection.
The Office of International Affairs, Space Bureau, Wireless Telecommunications Bureau, Wireline Competition Bureau, and Office of Economics and Analytics may update the specific format of data to be submitted pursuant to the Broadband Data Collection to reflect changes over time in Geographical Information Systems (GIS) and other data storage and processing functionalities and may implement any technical improvements or other clarifications to the filing mechanism and forms.
§ 1.8001   FCC Registration Number (FRN).
(a) The FCC Registration Number (FRN) is a 10-digit unique identifying number that is assigned to entities doing business with the Commission.
(b) The FRN is obtained through the Commission Registration System (CORES) over the Internet at the CORES link at www.fcc.gov or by filing FCC Form 160.
§ 1.8002   Obtaining an FRN.
(a) The FRN must be obtained by anyone doing business with the Commission, see 31 U.S.C. 7701(c)(2), including but not limited to:
(1) Anyone required to pay statutory charges under subpart G of this part;
(2) Anyone applying for a license, including someone who is exempt from paying statutory charges under subpart G of this part, see §§ 1.1114 and 1.1162;
(3) Anyone participating in a spectrum auction;
(4) Anyone holding or obtaining a spectrum auction license or loan;
(5) Anyone paying statutory charges on behalf of another entity or person; and
(6) Any applicant or service provider participating in the Schools and Libraries Universal Service Support Program, part 54, subpart F, of this chapter.
(b)(1) When registering for an FRN through the CORES, an entity's name, entity type, contact name and title, address, valid email address, and taxpayer identifying number (TIN) must be provided. For individuals, the TIN is the social security number (SSN).
(2) Information listed in paragraph (b)(1) of this section must be kept current by registrants either by updating the information on-line at the CORES link at www.fcc.gov or by filing FCC Form 161 (CORES Update/Change Form).
(c) A business may obtain as many FRNs as it deems appropriate for its business operations. Each subsidiary with a different TIN must obtain a separate FRN. Multiple FRNs shall not be obtained to evade payment of fees or other regulatory responsibilities.
(d) An FRN may be assigned by the Commission, which will promptly notify the entity of the assigned FRN.
§ 1.8003   Providing the FRN in Commission filings.
The FRN must be provided with any filings requiring the payment of statutory charges under subpart G of this part, anyone applying for a license (whether or not a fee is required), including someone who is exempt from paying statutory charges under subpart G of this part, anyone participating in a spectrum auction, making up-front payments or deposits in a spectrum auction, anyone making a payment on an auction loan, anyone making a contribution to the Universal Service Fund, any applicant or service provider participating in the Schools and Libraries Universal Service Support Program, and anyone paying a forfeiture or other payment. A list of applications and other instances where the FRN is required will be posted on our Internet site and linked to the CORES page.
§ 1.8004   Penalty for Failure to Provide the FRN.
(a) Electronic filing systems for filings that require the FRN will not accept a filing without the appropriate FRN. If a party seeks to make an electronic filing and does not have an FRN, the system will direct the party to the CORES website to obtain an FRN.
(b) Except as provided in paragraph (d) of this section or in other Commission rules, filings subject to the FRN requirement and submitted without an FRN will be returned or dismissed.
(c) Where the Commission has not established a filing deadline for an application, a missing or invalid FRN on such an application may be corrected and the application resubmitted. Except as provided in paragraph (d) of this section or in other Commission rules, the date that the resubmitted application is received by the Commission with a valid FRN will be considered the official filing date.
(d) Except for the filing of tariff publications ( see 47 CFR 61.1(b)) or as provided in other Commission rules, where the Commission has established a filing deadline for an application and that application may be filed on paper, a missing or invalid FRN on such an application may be corrected with ten (10) business days of notification to the filer by the Commission staff and, in the event of such timely correction, the original date of filing will be retained as the official filing date.
§ 1.9001   Purpose and scope.
(a) The purpose of this subpart is to implement policies and rules pertaining to spectrum leasing arrangements between licensees in the services identified in this subpart and spectrum lessees. This subpart also implements policies for private commons arrangements. The policies and rules in this subpart also implicate other Commission rule parts, including parts 1, 2, 20, 22, 24, 25, 27, 30, 80, 90, 95, and 101 of title 47, chapter I of the Code of Federal Regulations.
(b) Licensees holding exclusive use rights are permitted to engage in spectrum leasing whether their operations are characterized as commercial, common carrier, private, or non-common carrier.
§ 1.9003   Definitions.
Contraband Interdiction System. Contraband Interdiction System is a system that transmits radio communication signals comprised of one or more stations used only in a correctional facility exclusively to prevent transmissions to or from contraband wireless devices within the boundaries of the facility and/or to obtain identifying information from such contraband wireless devices.
Contraband wireless device. A contraband wireless device is any wireless device, including the physical hardware or part of a device, such as a subscriber identification module (SIM), that is used within a correctional facility in violation of federal, state, or local law, or a correctional facility rule, regulation, or policy.
Correctional facility. A correctional facility is any facility operated or overseen by federal, state, or local authorities that houses or holds criminally charged or convicted inmates for any period of time, including privately owned and operated correctional facilities that operate through contracts with federal, state, or local jurisdictions.
De facto transfer leasing arrangement. A spectrum leasing arrangement in which a licensee retains de jure control of its license while transferring de facto control of the leased spectrum to a spectrum lessee, pursuant to the spectrum leasing rules set forth in this subpart.
FCC Form 608. FCC Form 608 is the form to be used by licensees and spectrum lessees that enter into spectrum leasing arrangements pursuant to the rules set forth in this subpart. Parties are required to submit this form electronically when entering into spectrum leasing arrangements under this subpart, except that licensees falling within the provisions of § 1.913(d), may file the form either electronically or manually.
Long-term de facto transfer leasing arrangement. A long-term de facto transfer leasing arrangement is a de facto transfer leasing arrangement that has an individual term, or series of combined terms, of more than one year.
Private commons. A “private commons” arrangement is an arrangement, distinct from a spectrum leasing arrangement but permitted in the same services for which spectrum leasing arrangements are allowed, in which a licensee or spectrum lessee makes certain spectrum usage rights under a particular license authorization available to a class of third-party users employing advanced communications technologies that involve peer-to-peer (device-to-device) communications and that do not involve use of the licensee's or spectrum lessee's end-to-end physical network infrastructure (e.g., base stations, mobile stations, or other related elements).
Short-term de facto transfer leasing arrangement. A short-term de facto transfer leasing arrangement is a de facto transfer leasing arrangement that has an individual or combined term of not longer than one year.
Spectrum leasing application. The application submitted to the Commission by a licensee and a spectrum lessee seeking approval of a de facto transfer leasing arrangement.
Spectrum leasing arrangement. An arrangement between a licensed entity and a third-party entity in which the licensee leases certain of its spectrum usage rights in the licensed spectrum to the third-party entity, the spectrum lessee, pursuant to the rules set forth in this subpart. The arrangement may involve the leasing of any amount of licensed spectrum, in any geographic area or site encompassed by the license, for any period of time during the term of the license authorization. Two different types of spectrum leasing arrangements, spectrum manager leasing arrangements and de facto transfer leasing arrangements, are permitted under this subpart.
Spectrum leasing notification. The required notification submitted by a licensee to the Commission regarding a spectrum manager leasing arrangement.
Spectrum lessee. Any third-party entity that leases, pursuant to the spectrum leasing rules set forth in this subpart, certain spectrum usage rights held by a licensee. This term includes reference to third-party entities that lease spectrum usage rights as spectrum sublessees under spectrum subleasing arrangements.
Spectrum manager leasing arrangement. A spectrum leasing arrangement in which a licensee retains both de jure control of its license and de facto control of the leased spectrum that it leases to a spectrum lessee, pursuant to the spectrum leasing rules set forth in this subpart.
§ 1.9005   Included services.
The spectrum leasing policies and rules of this subpart apply to the following services, which include Wireless Radio Services in which commercial or private licensees hold exclusive use rights and the Ancillary Terrestrial Component (ATC) of a Mobile Satellite Service:
(a) The Paging and Radiotelephone Service (part 22 of this chapter);
(b) The Rural Radiotelephone Service (part 22 of this chapter);
(c) The Air-Ground Radiotelephone Service (part 22 of this chapter);
(d) The Cellular Radiotelephone Service (part 22 of this chapter);
(e) The Offshore Radiotelephone Service (part 22 of this chapter);
(f) The narrowband Personal Communications Service (part 24 of this chapter);
(g) The broadband Personal Communications Service (part 24 of this chapter);
(h) The Broadband Radio Service (part 27 of this chapter);
(i) The Educational Broadband Service (part 27 of this chapter);
(j) The Wireless Communications Service in the 698-746 MHz band (part 27 of this chapter);
(k) The Wireless Communications Service in the 746-758 MHz, 775-788 MHz, and 805-806 MHz bands (part 27 of this chapter);
(l) The Wireless Communications Service in the 1390-1392 MHz band (part 27 of this chapter);
(m) The Wireless Communications Service in the paired 1392-1395 MHz and 1432-1435 MHz bands (part 27 of this chapter);
(n) The Wireless Communications Service in the 1670-1675 MHz band (part 27 of this chapter);
(o) The Wireless Communications Service in the 2305-2320 and 2345-2360 MHz bands (part 27 of this chapter);
(p) The Citizens Broadband Radio Service in the 3550-3650 MHz band (part 96 of this chapter).
(q) The Advanced Wireless Services (part 27 of this chapter);
(r) The VHF Public Coast Station service (part 80 of this chapter);
(s) The Automated Maritime Telecommunications Systems service (part 80 of this chapter);
(t) The Public Safety Radio Services (part 90 of this chapter);
(u) The 220 MHz Service (excluding public safety licensees) (part 90 of this chapter);
(v) The Specialized Mobile Radio Service in the 800 MHz and 900 MHz bands (including exclusive use SMR licenses in the General Category channels) (part 90 of this chapter);
(w) The Location and Monitoring Service (LMS) with regard to licenses for multilateration LMS systems (part 90 of this chapter);
(x) Paging operations under part 90 of this chapter;
(y) The Business and Industrial/Land Transportation (B/ILT) channels (part 90 of this chapter) (including all B/ILT channels above 512 MHz and those in the 470-512 MHz band where a licensee has achieved exclusivity, but excluding B/ILT channels in the 470-512 MHz band where a licensee has not achieved exclusivity and those channels below 470 MHz, including those licensed pursuant to 47 CFR 90.187(b)(2)(v));
(z) The 218-219 MHz band (part 95 of this chapter);
(aa) The Local Multipoint Distribution Service (part 101 of this chapter);
(bb) The 24 GHz Band (part 101 of this chapter);
(cc) The 39 GHz Band (part 101 of this chapter);
(dd) The Multiple Address Systems band (part 101 of this chapter);
(ee) The Local Television Transmission Service (part 101 of this chapter);
(ff) The Private-Operational Fixed Point-to-Point Microwave Service (part 101 of this chapter);
(gg) The Common Carrier Fixed Point-to-Point Microwave Service (part 101 of this chapter);
(hh) The Multipoint Video Distribution and Data Service (part 101 of this chapter);
(ii) The 700 MHz Guard Bands Service (part 27 of this chapter);
(jj) The ATC of a Mobile Satellite Service (part 25 of this chapter);
(kk) The 600 MHz band (part 27 of this chapter);
(ll) The Upper Microwave Flexible Use Service (part 30 of this chapter);
(mm) The 3.7 GHz Service in the 3.7-3.98 GHz band;
(nn) The 900 MHz Broadband Service (part 27 of this chapter); and
(oo) [Reserved]
(pp) The 3.45 GHz Service in the 3.45-3.55 GHz band (part 27 of this chapter).
§ 1.9010De factocontrol standard for spectrum leasing arrangements.
(a) Under the rules established for spectrum leasing arrangements in this subpart, the following standard is applied for purposes of determining whether a licensee retains de facto control under section 310(d) of the Communications Act with regard to spectrum that it leases to a spectrum lessee.
(b) A licensee will be deemed to have retained de facto control of leased spectrum if it enters into a spectrum leasing arrangement and acts as a spectrum manager with regard to portions of the licensed spectrum that it leases to a spectrum lessee, provided the licensee satisfies the following two conditions:
(1) Licensee responsibility for lessee compliance with Commission policies and rules. The licensee must remain fully responsible for ensuring the spectrum lessee's compliance with the Communications Act and all applicable policies and rules directly related to the use of the leased spectrum.
(i) Through contractual provisions and actual oversight and enforcement of such provisions, the licensee must act in a manner sufficient to ensure that the spectrum lessee operates in conformance with applicable technical and use rules governing the license authorization.
(ii) The licensee must maintain a reasonable degree of actual working knowledge about the spectrum lessee's activities and facilities that affect its ongoing compliance with the Commission's policies and rules. These responsibilities include: Coordinating operations and modifications of the spectrum lessee's system to ensure compliance with Commission rules regarding non-interference with co-channel and adjacent channel licensees (and any authorized spectrum user); making all determinations as to whether an application is required for any individual spectrum lessee stations (e.g., those that require frequency coordination, submission of an Environmental Assessment under § 1.1307 of subpart I of this part, those that require international or Interdepartment Radio Advisory Committee (IRAC) coordination, those that affect radio frequency quiet zones described in § 1.924 of subpart F of this part, or those that require notification to the Federal Aviation Administration under part 17 of this chapter); and, ensuring that the spectrum lessee complies with the Commission's safety guidelines relating to human exposure to radiofrequency (RF) radiation (e.g., § 1.1307(b) and related rules of subpart I of this part). The licensee is responsible for resolving all interference-related matters, including conflicts between its spectrum lessee and any other spectrum lessee or licensee (or authorized spectrum user). The licensee may use agents (e.g., counsel, engineering consultants) when carrying out these responsibilities, so long as the licensee exercises effective control over its agents' actions.
(iii) The licensee must be able to inspect the spectrum lessee's operations and must retain the right to terminate the spectrum leasing arrangement in the event the spectrum lessee fails to comply with the terms of the arrangement and/or applicable Commission requirements. If the licensee or the Commission determines that there is any violation of the Commission's rules or that the spectrum lessee's system is causing harmful interference, the licensee must immediately take steps to remedy the violation, resolve the interference, suspend or terminate the operation of the system, or take other measures to prevent further harmful interference until the situation can be remedied. If the spectrum lessee refuses to resolve the interference, remedy the violation, or suspend or terminate operations, either at the direction of the licensee or by order of the Commission, the licensee must use all reasonable legal means necessary to enforce compliance.
(2) Licensee responsibility for interactions with the Commission, including all filings, required under the license authorization and applicable service rules directly related to the leased spectrum. The licensee remains responsible for the following interactions with the Commission:
(i) The licensee must file the necessary notification with the Commission, as required under § 1.9020(e).
(ii) The licensee is responsible for making all required filings (e.g., applications, notifications, correspondence) associated with the license authorization that are directly affected by the spectrum lessee's use of the licensed spectrum. The licensee may use agents (e.g., counsel, engineering consultants) to complete these filings, so long as the licensee exercises effective control over its agents' actions and complies with any signature requirements for such filings.
§ 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 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 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 of paragraphs (d)(2)(ii) and (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, rural service provider, 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 of this chapter) 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 this chapter) of the licensee such that the licensee would lose its eligibility as a designated entity or entrepreneur.
(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 § 9.10 of this chapter), the licensee retains the obligations with respect to leased spectrum. However, if the spectrum lessee is a Contraband Interdiction System (CIS) provider, as defined in § 1.9003, then the CIS provider is responsible for compliance with § 9.10(r) regarding E911 transmission obligations.
(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 under the lease. Unless the license covering the spectrum to be leased is held pursuant to the Commission's designated entity rules and continues to be subject to unjust enrichment requirements and/or transfer restrictions ( see §§ 1.2110 and 1.2111, and §§ 24.709, 24.714, and 24.839 of this chapter) or restrictions in § 1.9046 and § 96.32 of this chapter, the spectrum manager lease notification will be processed pursuant to either 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. If the license covering the spectrum to be leased is held pursuant to the Commission's designated entity rules, the spectrum manager lease will require Commission acceptance of the spectrum manager lease notification prior to the commencement of operations under the lease.
(1) General notification procedures. Notifications of spectrum manager leasing arrangements will be processed pursuant to the general notification procedures set forth in this paragraph (e)(1) 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, and notifications for Contraband Interdiction Systems as defined in § 1.9003 that meet the requirements of paragraph (e)(2)(ii) 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);
(C) The spectrum leasing arrangement does not require a waiver of, or declaratory ruling pertaining to, any applicable Commission rules; and
(D) The application does not involve a transaction in the Enhanced Competition Incentive Program (see subpart EE of this part).
(ii) A lessee of spectrum used in a Contraband Interdiction System qualifies for these immediate processing procedures if the notification is sufficiently complete and contains 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 must not require a waiver of, or declaratory ruling pertaining to, any applicable Commission rules.
(iii) 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.
(iv) 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.
(n) Community notification requirement for certain contraband interdiction systems. 10 days prior to deploying a Contraband Interdiction System that prevents communications to or from mobile devices, a lessee must notify the community in which the correctional facility is located. The notification must include a description of what the system is intended to do, the date the system is scheduled to begin operating, and the location of the correctional facility. Notification must be tailored to reach the community immediately adjacent to the correctional facility, including through local television, radio, Internet news sources, or community groups, as may be appropriate. No notification is required, however, for brief tests of a system prior to deployment.
§ 1.9030   Long-termde factotransfer 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 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(c) 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(a)). 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 § 9.10 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. If the spectrum lessee is a Contraband Interdiction System (CIS) provider, as defined in § 1.9003, then the CIS provider is responsible for compliance with § 9.10(r) regarding E911 transmission 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, and applications for Contraband Interdiction Systems as defined in § 1.9003 that meet the requirements of paragraph (e)(2)(ii) 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);
(C) The spectrum leasing arrangement does not require a waiver of, or declaratory ruling pertaining to, any applicable Commission rules; and
(D) The application does not involve a transaction in the Enhanced Competition Incentive Program (see subpart EE of this part).
(ii) A lessee of spectrum used in a Contraband Interdiction System qualifies for these immediate approval procedures if the application is sufficiently complete and contains all necessary information and certifications (including those relating to eligibility, basic qualifications, and foreign ownership) required for applications processed under the general application procedures set forth in paragraph (e)(1)(i) of this section, and must not require a waiver of, or declaratory ruling pertaining to, any applicable Commission rules.
(iii) 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.
(iv) 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.
(m) Community notification requirement for certain contraband interdiction systems. 10 days prior to deploying a Contraband Interdiction System that prevents communications to or from mobile devices, a lessee must notify the community in which the correctional facility is located. The notification must include a description of what the system is intended to do, the date the system is scheduled to begin operating, and the location of the correctional facility. Notification must be tailored to reach the community immediately adjacent to the correctional facility, including through local television, radio, Internet news sources, or community groups, as may be appropriate. No notification is required, however, for brief tests of a system prior to deployment.
§ 1.9035   Short-termde factotransfer 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 § 9.10 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. However, if the spectrum lessee is a Contraband Interdiction System (CIS) provider, as defined in § 1.9003, then the CIS provider is responsible for compliance with § 9.10(r) regarding E911 transmission obligations.
(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).
(o) Community notification requirement for certain contraband interdiction systems. 10 days prior to deploying a Contraband Interdiction System that prevents communications to or from mobile devices, a lessee must notify the community in which the correctional facility is located. The notification must include a description of what the system is intended to do, the date the system is scheduled to begin operating, and the location of the correctional facility. Notification must be tailored to reach the community immediately adjacent to the correctional facility, including through local television, radio, Internet news sources, or community groups, as may be appropriate. No notification is required, however, for brief tests of a system prior to deployment.
§ 1.9040   Contractual requirements applicable to spectrum leasing arrangements.
(a) Agreements between licensees and spectrum lessees concerning spectrum leasing arrangements entered into pursuant to the rules of this subpart must contain the following provisions:
(1) The spectrum lessee must comply at all times with applicable rules set forth in this chapter and other applicable law, and the spectrum leasing arrangement may be revoked, cancelled, or terminated by the licensee or Commission if the spectrum lessee fails to comply with the applicable requirements;
(2) If the license is revoked, cancelled, terminated, or otherwise ceases to be in effect, the spectrum lessee has no continuing authority or right to use the leased spectrum unless otherwise authorized by the Commission;
(3) The spectrum leasing arrangement is not an assignment, sale, or transfer of the license itself;
(4) The spectrum leasing arrangement shall not be assigned to any entity that is ineligible or unqualified to enter into a spectrum leasing arrangement under the applicable rules as set forth in this subpart;
(5) The licensee shall not consent to an assignment of a spectrum leasing arrangement unless such assignment complies with applicable Commission rules and regulations.
(b) Agreements between licensees that hold licenses subject to the Commission's installment payment program ( see § 1.2110 of subpart Q of this part and related service-specific rules) and spectrum lesseeys must contain the following additional provisions:
(1) The express acknowledgement that the license remains subject to the Commission's priority lien and security interest in the license and related proceeds, consistent with the provisions set forth in § 1.9045; and
(2) The agreement that the spectrum lessee shall not hold itself out to the public as the holder of the license and shall not hold itself out as a licensee by virtue of its having entered into a spectrum leasing arrangement.
§ 1.9045   Requirements for spectrum leasing arrangements entered into by licensees participating in the installment payment program.
(a) If a licensee that holds a license subject to the Commission's installment payment program ( see § 1.2110 of subpart Q of this part and related service-specific rules) enters into a spectrum leasing arrangement pursuant to the rules in this subpart, the licensee remains fully and solely responsible for the outstanding debt amount owed to the Commission. Nothing in a spectrum leasing arrangement, or arising from a spectrum lessee's bankruptcy or receivership, can modify the licensee's sole responsibility for its obligation to repay its entire debt obligation under the installment payment program pursuant to applicable Commission rules and regulations and the associated note(s) and security agreement(s).
(b) If a licensee holds a license subject to the installment payment program rules ( see § 1.2110 and related service-specific rules), the licensee and any spectrum lessee must execute the Commission-approved financing documents. No licensee or potential spectrum lessee may file a spectrum leasing notification or application without having first executed such Commission-approved financing documentation. In addition, they must certify in the spectrum leasing notification or application that they have both executed such documentation.
§ 1.9046   Special provisions related to spectrum manager leasing in the Citizens Broadband Radio Service.
(a) Scope. Subject to § 96.32 of this chapter, a Priority Access Licensee, as defined in § 96.3 of this chapter, is permitted to engage in spectrum manager leasing for any portion of its spectrum or geographic area, outside of the PAL Protection Area, for any bandwidth or duration period of time within the terms of the license with any entity that has provided a certification to the Commission in accordance with this section or pursuant to the general notification procedures of § 1.9020(e).
(b) Certification. The lessee seeking to engage in spectrum manager leasing pursuant to this section must certify with the Commission that it meets the same eligibility and qualification requirements applicable to the licensee before entering into a spectrum manger leasing arrangement with a Priority Access Licensee, as defined in § 96.3 of this chapter and maintain the accuracy of such certifications.
(1) Priority Access Licensees, as defined in § 96.3 of this chapter, are deemed to meet the certification requirements.
(2) Entities may also certify by using the Universal Licensing System and FCC Form 608.
(c) Notifications regarding spectrum manager leasing arrangements. Prior to lessee operation, the licensee seeking to engage in spectrum manager leasing pursuant to § 1.9020(e) must submit notification of the leasing arrangement to the Spectrum Access System Administrator, as defined in § 96.3 of this chapter, by electronic filing. The notification shall include the following information:
(1) Lessee contact information including name, address, telephone number, fax number, email address;
(2) Lessee FCC Registration Number (FRN);
(3) Name of Real Party in Interest and related FCC Registration Number (FRN);
(4) The specific spectrum leased (in terms of amount of bandwidth and geographic area involved) including the call sign(s) affected by the lease; and
(5) The duration of the lease.
(d) Expiration, extension, or termination of a spectrum leasing arrangement. (1) Absent Commission termination or except as provided in paragraph (d)(2) or (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 for an additional period not to exceed the term of the Priority Access License, as defined in § 96.3 of this chapter, provided that the licensee notifies the Spectrum Access System Administrator, as defined in § 96.3 of this chapter, of the extension in advance of operation under the extended term and does so pursuant to the notification procedures in this section.
(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 Spectrum Access System Administrator, 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 Spectrum Access System Administrator as promptly as practicable.
(e) The Commission will place information concerning the commencement, an extension or an early termination of a spectrum leasing arrangement on public notice.
§ 1.9047   Special provisions relating to spectrum leasing arrangements involving terrestrial spectrum rights for supplemental coverage from space.
(a) Supplemental coverage from space. For purposes of this section, supplemental coverage from space (SCS) has the same meaning as in § 25.103 of this chapter.
(b) Geographically independent area (GIA). For purposes of this section, geographically independent area (GIA) has the same meaning as in § 25.103 of this chapter.
(c) Part 25 SCS Entry Criteria. For purposes of this section, part 25 SCS Entry Criteria refers to the requirements outlined in § 25.125(a) and (b) of this chapter.
(d) Scope. Under this section, a licensee may enter into a spectrum manager ( see § 1.9020) or de facto transfer (see §§ 1.9030 and 1.9035) leasing or subleasing arrangement with a spectrum lessee in only the bands identified in § 2.106(d)(33)(i) of this chapter for the purpose of meeting the part 25 SCS Entry Criteria.
(1) The licensee seeking to engage in spectrum leasing under this section may do so under the following parameters:
(i) A single licensee that holds all co-channel licenses on the relevant band in a GIA may enter into a leasing arrangement with one or more satellite operators.
(ii) If there are multiple co-channel licensees that collectively hold all co-channel licenses in a particular band throughout one of six GIAs, the licensees may enter into spectrum leasing arrangements only under one of the following conditions:
(A) One licensee holding a license in the GIA must enter into an individual spectrum leasing arrangement with each of the other co-channel licensees in that GIA. The licensee may then enter into a leasing arrangement with one satellite operator; or
(B) One satellite operator may enter into individual leasing arrangements with each of the relevant co-channel licensees that together hold all co-channel licenses on the relevant band in the GIA.
(2) The spectrum lessee or sublessee seeking to engage in spectrum leasing under this section must provide within the FCC Form 608:
(i) A certification that the parties are entering into the leasing arrangement for the purpose of fulfilling the part 25 Entry Criteria;
(ii) A description of which method, single or multiple terrestrial licensee, the parties are utilizing to meet the part 25 Entry Criteria; and
(iii) If the parties are utilizing the spectrum leasing arrangement outlined in paragraph (d)(1)(ii) of this section, the parties must:
(A) Describe the nature of the leasing arrangement(s); and
(B) Demonstrate how the entirety of the GIA is covered by the lease arrangement(s).
(e) FirstNet. In order for the First Responder Network Authority (FirstNet), as defined in 47 U.S.C. 1424, to fulfill the part 25 SCS Entry Criteria, FirstNet must file an FCC Form 601 in the Universal Licensing System (ULS) that:
(1) Describes the manner in which FirstNet has conveyed to its satellite partner an authorization to utilize the 758-769/788-799 MHz band or portions of the band;
(2) Identifies and describes the geographic area(s) and nature of the proposed SCS operations; and
(3) Demonstrates how, under the agreement, the rights and responsibilities of the satellite operator partner are substantively the same as those of a lessee under this part.
(f) Subleasing. Notwithstanding the provisions of §§ 1.9020(l) and 1.9030(k), an SCS spectrum lessee may sublease spectrum usage rights subject to the following condition.
(1) Satellite operators may not enter into a spectrum subleasing arrangement where there are multiple terrestrial licensees jointly leasing their co-channel rights in a given GIA pursuant to paragraph (d)(1)(ii) of this section.
(2) [Reserved]
(g) Construction/performance requirements. Notwithstanding the provisions of §§ 1.9020(d)(5)(i) and 1.9030(d)(5)(i), a licensee may not attribute to itself the build-out or performance activities of its SCS spectrum lessee(s) for purposes of complying with any applicable performance or build-out requirement.
§ 1.9048   Special provisions relating to spectrum leasing arrangements involving licensees in the Public Safety Radio Services.
Licensees in the Public Safety Radio Services (see part 90, subpart B, and § 90.311(a)(1)(i) of this chapter) may enter into spectrum leasing arrangements with other public safety entities eligible for such a license authorization as well as with entities providing communications in support of public safety operations (see § 90.523(b) of this chapter).
§ 1.9049   Special provisions relating to spectrum leasing arrangements involving the ancillary terrestrial component of Mobile Satellite Services.
(a) A license issued under part 25 of the Commission's rules that provides authority for an ATC will be considered to provide “exclusive use rights” for purpose of this subpart of the rules.
(b) For the purpose of this subpart, a Mobile Satellite Service licensee with an ATC authorization may enter into a spectrum manager leasing arrangement with a spectrum lessee ( see § 1.9020). Notwithstanding the provisions of §§ 1.9030 and 1.9035, a MSS licensee is not permitted to enter into a de facto transfer leasing arrangement with a spectrum lessee.
(c) For purposes of § 1.9020(d)(8), the Mobile Satellite Service licensee's obligation, if any, concerning the E911 requirements in § 9.10 of this chapter, will, with respect to an ATC, be specified in the licensing document for the ATC.
(d) The following provision shall apply, in lieu of § 1.9020(m), with respect to spectrum leasing of an ATC:
(1) Although the term of a spectrum manager leasing arrangement may not be longer than the term of the ATC license, a licensee and spectrum lessee that have entered into an arrangement, the term of which continues to the end of the current term of the license may, contingent on the Commission's grant of a modification or renewal of the license to extend the license term, extend the spectrum leasing arrangement into the new license term. The Commission must be notified of the extension of the spectrum leasing arrangement at the same time that the licensee submits the application seeking an extended license term. In the event the parties to the arrangement agree to extend it into the new license term, the spectrum lessee may continue to operate consistent with the terms and conditions of the expired license, without further action by the Commission, until such time as the Commission makes a final determination with respect to the extension or renewal of the license.
(2) Reserved.
§ 1.9050   Who may sign spectrum leasing notifications and applications.
Under the rules set forth in this subpart, certain notifications and applications to the Commission must be filed by licensees and spectrum lessees that enter into spectrum leasing arrangements. In addition, the rules require that certain notifications and applications be filed by the licensee and/or the spectrum lessee after they have entered into such arrangements. Whether the signature of the licensee, the spectrum lessee, or both, is required will depend on the particular notification or application involved, and whether the leasing arrangement concerns a spectrum manager leasing arrangement or a de facto transfer leasing arrangement.
(a) Except as provided in paragraph (b) of this section, the notifications, applications, amendments, and related statements of fact required by the Commission (including certifications) must be signed as follows (either electronically or manually, see paragraph (d) of this section):
(1) By the licensee or spectrum lessee, if an individual;
(2) By one of the partners if the licensee or lessee is a partnership;
(3) By an officer, director, or duly authorized employee, if the licensee or lessee is a corporation; or
(4) By a member who is an officer, if the licensee or lessee is an unincorporated association.
(b) Notifications, applications, amendments, and related statements of fact required by the Commission may be signed by the licensee or spectrum lessee's attorney in case of the licensee's or lessee's physical disability or absence from the United States. The attorney shall, when applicable, separately set forth the reason why the application is not signed by the licensee or lessee. In addition, if any matter is stated on the basis of the attorney's belief only (rather than knowledge), the attorney shall separately set forth the reasons for believing that such statements are true. Only the original of notifications, applications, amendments, and related statements of fact need be signed.
(c) Notifications, applications, amendments, and related statements of fact need not be signed under oath. Willful false statements made therein, however, are punishable by fine and imprisonment ( see 18 U.S.C. section 1001), and by appropriate administrative sanctions, including revocation of license pursuant to section 312(a)(1) of the Communications Act of 1934 or revocation of the spectrum leasing arrangement.
(d) “Signed,” as used in this section, means, for manually filed notifications and applications only, an original hand-written signature or, for electronically filed notifications and applications only, an electronic signature. An electronic signature shall consist of the name of the licensee or spectrum lessee transmitted electronically via ULS and entered on the application as a signature.
§ 1.9055   Assignment of file numbers to spectrum leasing notifications and applications.
Spectrum leasing notifications or applications submitted pursuant to the rules of this subpart are assigned file numbers and service codes in order to facilitate processing in the manner in which applications in subpart F are assigned file numbers ( see § 1.926 of subpart F of this part).
§ 1.9060   Amendments, waivers, and dismissals affecting spectrum leasing notifications and applications.
(a) Notifications and applications regarding spectrum leasing arrangements may be amended in accordance with the policies, procedures, and standards applicable to applications as set forth in subpart F of this part ( see §§ 1.927 and 1.929 of subpart F of this part).
(b) The Commission may waive specific requirements of the rules affecting spectrum leasing arrangements and the use of leased spectrum, on its own motion or upon request, in accordance with the policies, procedures, and standards set forth in subpart F of this part ( see § 1.925 of subpart F of this part).
(c) Notifications and pending applications regarding spectrum leasing arrangements may be dismissed in accordance with the policies, procedures, and standards applicable to applications as set forth in subpart F of this part ( see § 1.935 of subpart F of this part).
§ 1.9080   Private commons.
(a) Overview. A “private commons” arrangement is an arrangement, distinct from a spectrum leasing arrangement but permitted in the same services for which spectrum leasing arrangements are allowed, in which a licensee or spectrum lessee makes certain spectrum usage rights under a particular license authorization available to a class of third-party users employing advanced communications technologies that involve peer-to-peer (device-to-device) communications and that do not involve use of the licensee's or spectrum lessee's end-to-end physical network infrastructure (e.g., base stations, mobile stations, or other related elements). In a private commons arrangement, the licensee or spectrum lessee authorizes users of certain communications devices employing particular technical parameters, as specified by the licensee or spectrum lessee, to operate under the license authorization. A private commons arrangement differs from a spectrum leasing arrangement in that, unlike spectrum leasing arrangements, a private commons arrangement does not involve individually negotiated spectrum access rights with entities that seek to provide network-based services to end-users. A private commons arrangement does not affect unlicensed operations in a particular licensed band to the extent that they are permitted pursuant to part 15.
(b) Licensee/spectrum lessee responsibilities. As the manager of any private commons, the licensee or spectrum lessee:
(1) Establishes the technical and operating terms and conditions of use by users of the private commons, including those relating to the types of communications devices that may be used within the private commons, consistent with the terms and conditions of the underlying license authorization;
(2) Retains de facto control of the use of spectrum by users within the private commons, including maintaining reasonable oversight over the users' use of the spectrum in the private commons so as to ensure that the use of the spectrum, and communications equipment employed, comply with all applicable technical and service rules (including requirements relating to radiofrequency radiation) and maintaining the ability to ensure such compliance; and,
(3) Retains direct responsibility for ensuring that the users of the private commons, and the equipment employed, comply with all applicable technical and service rules, including requirements relating to radiofrequency radiation and requirements relating to interference.
(c) Notification requirements. Prior to permitting users to commence operations within a private commons, the licensee or spectrum lessee must notify the Commission, using FCC Form 608, that it is establishing a private commons arrangement. This notification must include information that describes: the location(s) or coverage area(s) of the private commons under the license authorization; the term of the arrangement; the general terms and conditions for users that would be gaining spectrum access to the private commons; the technical requirements and equipment that the licensee or spectrum lessee has approved for use within the private commons; and, the types of communications uses that are to be allowed within the private commons.
§ 1.10000   What is the purpose of the requirements related to the International Communications Filing System?
(a) These rules are issued under the Communications Act of 1934, as amended, 47 U.S.C. 151 et seq., and the Submarine Cable Landing License Act, 47 U.S.C. 34-39.
(b) This subpart describes procedures for electronic filing of International and Satellite Services applications using the International Communications Filing System.
(c) More licensing and application descriptions and directions, including but not limited to specifying which International and Satellite service applications must be filed electronically, are in parts 1, 25, 63, and 64 of this chapter.
§ 1.10001   Definitions.
All other applications. We consider all other applications officially filed once you file the application in the International Communications Filing System (ICFS) and applicable filing fees are received and approved by the FCC, unless the application is determined to be fee-exempt. We determine your official filing date based on one of the following situations:
(1)(i) You file your Satellite Space Station Application or your Application for Earth Stations to Access a Non-U.S. Satellite Not Currently Authorized to provide the Proposed Service in the Proposed Frequencies in the United States in ICFS.
(ii) Your official filing date is the date and time (to the millisecond) you file your application and receive a confirmation of filing and submission ID.
(2) You file all other applications in ICFS and then do one of the following:
(i)(A) Pay by online Automatic Clearing House (ACH) payment, online Visa, MasterCard, American Express, or Discover credit card payment, or wire transfer payment denominated in U.S. dollars and drawn on a United States financial institution and made payable to the Federal Communications Commission (through ICFS)
(B) Your official filing date is the date your online payment is approved. (Note: You will receive a remittance ID and an authorization number if your transaction is successful).
(ii)(A) Determine your application type is fee-exempt or your application qualifies for exemption to charges as provided in this part
(B) Your official filing date is the date you file in ICFS and receive a confirmation of filing and submission ID.
Application. A request for an earth or space station radio station license, an international cable landing license, or an international service authorization, or a request to amend a pending application or to modify or renew licenses or authorizations. The term also includes the other requests that may be filed in ICFS such as transfers of control and assignments of license applications, earth station registrations, and foreign carrier affiliation notifications.
Authorizations. Generally, a written document or oral statement issued by us giving authority to operate or provide service.
International Communications Filing System. The International Communications Filing System (ICFS) is a database, application filing system, and processing system for all International and Satellite services. ICFS supports electronic filing of many applications and related documents in the Space Bureau and Office of International Affairs, and provides public access to this information.
International services. All international services authorized under this part and parts 63 and 64 of this chapter.
Satellite services. All satellite services authorized under part 25 of this chapter.
Satellite Space Station Applications (other than DBS and DARS) and Applications for Earth Stations to Access a Non-U.S. Satellite Not Currently Authorized to Provide the Proposed Service in the Proposed Frequencies in the United States. We consider a Satellite Space Station application (other than DBS and DARS) and an Application for an Earth Station to Access a Non-U.S. Satellite Not Currently Authorized to Provide the Proposed Service in the Proposed Frequencies in the United States officially filed the moment you file them through ICFS. The system tracks the date and time of filing (to the millisecond). For purposes of the queue discussed in § 25.158 of this chapter, we will base the order of the applications in the queue on the date and time the applications are filed, rather than the “Official Filing Date” as defined here.
Submission ID. The Submission ID is the confirmation number you receive from ICFS once you have successfully filed your application. It is also the number we use to match your filing to your payment.
Us. In this subpart, “us” refers to the Commission.
We. In this subpart, “we” refers to the Commission.
You. In this subpart, “you” refers to applicants, licensees, your representatives, or other entities authorized to provide services.
§ 1.10002   What happens if the rules conflict?
The rules concerning parts 1, 25, 63 and 64 of this chapter govern over the electronic filing in this subpart.
§ 1.10003   When can I start operating?
You can begin operating your facility or providing services once we grant your application to do so, under the conditions set forth in your license or authorization.
§ 1.10004   What am I allowed to do if I am approved?
If you are approved and receive a license or authorization, you must operate in accordance with, and not beyond, your terms of approval.
§ 1.10005   What is ICFS?
(a) The International Communications Filing System (ICFS) is a database, application filing system, and processing system for all International and Satellite Services. ICFS supports electronic filing of many applications and related documents in the Space Bureau and Office of International Affairs, and provides public access to this information.
(b) We maintain applications, notifications, correspondence, and other materials filed electronically with the Space Bureau and Office of International Affairs in IICFS.
§ 1.10006   Is electronic filing mandatory?
Electronic filing is mandatory for all applications for international and satellite services for which an International Communications Filing System (ICFS) form is available. Applications for which an electronic form is not available must be filed through the Electronic Comment Filing System (ECFS) in PDF format until new forms are introduced. See §§ 63.20 and 63.53 of this chapter. As each new ICFS form becomes available for electronic filing, the Commission will issue a public notice announcing the availability of the new form and the effective date of mandatory filing for this particular type of filing. As each new form becomes effective, manual filings will not be accepted by the Commission and the filings will be returned to the applicant without processing. Mandatory electronic filing requirements for applications for international and satellite services are set forth in this part and parts 25, 63, and 64 of this chapter. A list of forms that are available for electronic filing can be found on the ICFS homepage. For information on electronic filing requirements, see §§ 1.1000 through 1.10018 and the ICFS homepage at https://licensing.fcc.gov/icfs.
§ 1.10007   What applications can I file electronically?
(a) For a complete list of applications or notifications that must be filed electronically, log in to the ICFS website at http://licensing.fcc.gov/icfs.
(b) Many applications require exhibits or attachments. If attachments are required, you must attach documentation to your electronic application before filing. We accept attachments in the following formats: Word, Adobe Acrobat, Excel and Text.
(c) For paper filing rules and procedures, see parts 1, 25, 63 or 64.
§ 1.10008   What are ICFS file numbers?
(a) We assign file numbers to electronic applications in order to facilitate processing.
(b) We only assign file numbers for administrative convenience; they do not mean that an application is acceptable for filing.
(c) For a description of file number information, see The International Bureau Filing System File Number Format Public Notice, DA-04-568 (released February 27, 2004).