§ 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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