FCC moves ahead with leasing plan
Following through on action taken in May, on Oct. 7, the FCC issued a Report and Order to permit the secondary leasing of spectrum for Wireless Radio Services licensees holding “exclusive use” licenses as well as streamlined approval processes for transfer and assignment of licenses. In addition, the 198-page document also includes a Further Notice of Proposed Rulemaking to expand the ruling to other services, seeking comment on facilitating spectrum exchanges, maximizing benefits from new devices, and extending the new de facto control standard.
In a joint statement, FCC Chairman Michael Powell and Commissioner Kevin Martin, called the action “one of the most important spectrum decisions by this Commission in the last decade” and an abandonment of the 40-year old Intermountain Microwave standard.
The Intermountain standard required prior FCC approval for a license transfer any time a licensee transferred any sort of responsibilities associated with equipment, salaries, personnel, and other activities. Commissioners also hailed the ruling for having the potential to expand greater wireless development in rural America. Carriers with nationwide licenses could lease or sell spectrum to rural carriers, thereby promoting additional development of services in rural areas.
In a dissenting statement, Commissioner Michael Copps was concerned that the FCC is waiving its responsibility under section 310(d) of the Communications Act and needs to have Congress give legislative approval for a more flexible interpretation of existing regulation.
He also is concerned that the NRPM would apply the more liberal de facto transfer of control to questions of foreign ownership. While supporting the new Order, Commissioner Jonathan Adelstein is concerned about the request for comment on allowing public safety licensees to license spectrum.
Two different options for spectrum leasing have been implementing. The “spectrum manager” option enables licensees and “spectrum lessees” — basically, those leasing spectrum from the license holder — to enter into leasing arrangements without the need for FCC approval so long as the licensee retains de facto control of the leased spectrum.
The licensee would act as a spectrum manager and must retain both legal control of the license and de facto control of the spectrum, requiring it to maintain an active oversight role.
Notification of spectrum leases must be provided within 14 days of signing a lease and at least 21 days in advance of the lessees’ start of operations.
“De facto transfer” permits arrangements where the licensee transfers de facto control to the lessees with the approval of the FCC in a streamlined approval procedure.
The spectrum lessee would exercise de facto control of leased spectrum and all associated responsibilities with such control.
The licensee would retain legal control of the spectrum, but the lessee assumes general responsibility for working with the FCC, including making associated filings, and is held directly and primarily responsible for compliance with the Communications Act and all applicable FCC policies and rules.
De facto leasing can be conducted for either short-term (360 days or less) or long-term (over 360 days).
Streamlined approval for license assignments and transfers of control will expect petitions to deny and other comments to be due within 14 days of public notice.
Within 21 days of public notice, the Wireless Telecommunications Bureau will either approve the transfer or “offline” it for further examination.
The FCC is determined to implement similar streamlined approval procedures for all license assignments and transfers of control in the same wireless radio services covered by the newly adopted spectrum leasing policy.
The Further Notice of Proposed Rulemaking proposes several actions that the FCC could take to further enhance spectrum access and efficient spectrum use.
Comment is being sought on how to encourage the development of information and clearinghouse mechanisms for secondary spectrum market transactions between licensees and new users, further streamlining of applications processing, expanding leasing to additional services, and modifying or eliminating other regulations impeding leasing transactions.
Satellite services could be one area streamlined in the future. Satellite operators sought streamlined rules similar to wireless radio, but the FCC felt the current market for transponder leasing and access to unused spectrum through Special Temporary Authority was working well.