§  1.9010    De facto control 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.

   [ 68 FR 66277 , Nov. 25, 2003, as amended at  69 FR 77551 , Dec. 27, 2004]

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