Spectrum Manager Leasing Arrangements; Correction, 22296-22297 [2017-09756]

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• FEDERAL COMMUNICATIONS COMMISSION

[Federal Register Volume 82, Number 92 (Monday, May 15, 2017)]
[Rules and Regulations]
[Pages 22296-22297]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-09756]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 1

[DA 17-417]


Spectrum Manager Leasing Arrangements; Correction

AGENCY: Federal Communications Commission.

ACTION: Final rule; correcting amendment.

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SUMMARY: The Wireless Telecommunications Bureau (Bureau) of the Federal 
Communications Commission (FCC) adopted and released an Order on May 3, 
2017, correcting certain rules in part 1 of the FCC's rules. In 
particular, the FCC replaced certain inadvertently deleted paragraphs 
from a section of the Commission's rules.

DATES: Effective May 15, 2017.

FOR FURTHER INFORMATION CONTACT:  Melissa Conway, 
Melissa.Conway@fcc.gov, of the Wireless Telecommunications Bureau, 
Mobility Division, (202) 418-2887.

SUPPLEMENTARY INFORMATION: This document makes the following 
corrections to section 1.9020 of the Commission's rules.
    1. By this Order, the Bureau corrects and republishes section 
1.9020(e) \1\ of the Commission's rules in its entirety, in order to 
remedy an error in an earlier publication of the rule in the Code of 
Federal Regulations (CFR).
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    \1\ 47 CFR 1.9020(e).
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    2. Section 1.9020 of the Commission's rules addresses spectrum 
manager leasing arrangements.\2\ In revising the rule in the 2015 
Competitive Bidding Rules R&O,\3\ the Commission used amending language 
that resulted in the inadvertent deletion of paragraphs (e)(1) and (2) 
when the revised rule was published in the CFR. As there was no 
discussion in the Competitive Bidding Rules R&O of eliminating those 
paragraphs, it is apparent that the deletion was not intentional. 
Rather, the Commission's clear intent was only to revise the 
introductory text of paragraph (e).\4\
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    \2\ Id.
    \3\ Updating Part 1 Competitive Bidding Rules et al., Report and 
Order, Order on Reconsideration of the First Report and Order, Third 
Order on Reconsideration of the Second Report and Order, Third 
Report and Order, 30 FCC Rcd 7493 (2015) (Competitive Bidding Rules 
R&O).
    \4\ The introductory text was revised again in Amendment of the 
Commission's Rules with Regard to Commercial Operations in the 3550-
3650 MHz Band, Order on Reconsideration and Second Report and Order, 
31 FCC Rcd 5011 (2016).
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    3. On March 24, 2017, unaware of the earlier inadvertent deletion, 
the Commission released the Contraband Wireless Devices Report and 
Order,\5\ in which it adopted revisions to certain of the deleted 
paragraphs of section 1.9020(e).\6\ In order for the Commission to 
publish those rule changes in the Federal Register and make the 
necessary amendments to the CFR, we must first correct the earlier 
error and replace the inadvertently deleted paragraphs.
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    \5\ Promoting Technological Solutions to Combat Contraband 
Wireless Device Use in Correctional Facilities, GN Docket No. 13-
111, Report and Order and Further Notice of Proposed Rulemaking, FCC 
17-25, 2017 WL 1135543 (2017) (Contraband Wireless Devices Report 
and Order).
    \6\ See Contraband Wireless Devices Report and Order, Appx. A 
(revising the introductory language of paragraph (e)(2), 
redesignating paragraphs (e)(2)(ii) and (iii) as (e)(2)(iii) and 
(iv), respectively, and adding new paragraph (e)(2)(ii)).
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    4. Accordingly, by this Order, the Bureau restores the 
inadvertently deleted portions of section 1.9020(e) of the Commission's 
rules. This rule correction, which serves to effectuate the 
Commission's intent, reinstates the inadvertently deleted paragraphs of 
section 1.9020(e) and republishes section 1.9020(e) in its entirety for 
clarity. The corrected version of section 1.9020(e) is attached as 
Appendix A to the Order released by the Commission on May 3, 2017.\7\
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    \7\ Commission Rule; Spectrum Manager Leasing Arrangements, 
Order, DA 17-471 (WTB 2017).
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    5. The Bureau finds it appropriate to forego a notice-and-comment 
period prior to this Order taking effect, given the nature of this rule 
correction and the impact of the current error within the Commission's 
rules. The Administrative Procedure Act (APA) provides that notice 
procedures are not required where ``the agency for good cause finds 
(and incorporates the finding and a brief statement of reasons therefor 
in the rules issued) that notice and public procedure thereon are 
impracticable, unnecessary, or contrary to the public interest.'' \8\ 
We find that using the procedures of a notice-and-comment rulemaking to 
reinstate the inadvertently deleted paragraphs of section 1.9020(e) 
would be contrary to the public interest because it would delay the 
implementation of certain significant public safety initiatives adopted 
by the Commission and would be unlikely to effectuate the public 
interest benefits usually associated with the conduct of a notice-and-
comment proceeding.
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    \8\ 5 U.S.C. 553(b)(B).
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    6. Requiring notice and comment prior to the rule correction 
becoming effective would delay the implementation of certain rule 
amendments adopted in the Contraband Wireless Devices Report and Order, 
which are intended to expedite processing of spectrum lease 
applications or notifications for certain systems used to combat the 
use of contraband wireless devices in correctional facilities. We find 
that it would be contrary to the public interest to delay the 
significant public safety impact of these systems in order to provide 
notice and comment for this rule correction. We reach this conclusion 
specifically in light of the fact that the usual benefits of notice and 
comment appear to be absent here, given the Commission demonstrably did 
not intend to delete the longstanding paragraphs of section 1.9020(e) 
\9\ and, in the intervening period following the inadvertent deletion, 
the public appears to have been operating under the assumption that the 
process contained in the deleted paragraphs remained intact. Indeed, 
since the Competitive Bidding Rules R&O, which resulted in the 
deletion, the Bureau has continued to receive the notifications filed 
by licensees pursuant to the procedures and standards set forth in 
section 1.9020(e), including its inadvertently deleted paragraphs. 
Because a notice-and-comment procedure would be contrary to the public 
interest, the Bureau finds good cause to forego a notice-and-comment 
rulemaking for the purposes of this correction to section 1.9020(e).
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    \9\ Nothing in the Competitive Bidding Rules R&O mentions 
deleting the relevant paragraphs.
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    7. The APA requires publication of a substantive rule at least 30 
days before its effective date ``except as otherwise provided by the 
agency for good cause found and published with the rule.'' \10\
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    \10\ 5 U.S.C. 553(d)(3).
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    For the same reasons that we forego notice-and-comment procedures, 
we find good cause to make this correction to section 1.9020(e) 
effective immediately to remedy the error in the rule in the CFR.

List of Subjects in 47 CFR Part 1

    Administrative practice and procedures.


[[Page 22297]]


Federal Communications Commission.
Ne[scedil]e Guendelsberger,
Acting Chief, Wireless Telecommunications Bureau.
    Accordingly, 47 CFR part 1 is corrected by making the following 
correcting amendment:

PART 1--PRACTICE AND PROCEDURE

0
1. The authority citation for part 1 continues to read as follows:

    Authority: 15 U.S.C. 79 et seq.; 47 U.S.C. 151, 154(i), 154(j), 
155, 157, 160, 201, 225, 227, 303, 309, 310, 332, 1403, 1404, 1451, 
1452, and 1455.

0
2. In Sec.  1.9020, the introductory text of paragraph (e) is 
republished and paragraphs (e)(1) and (2) are added to read as follows:


Sec.  1.9020  Spectrum manager leasing arrangements.

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    (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 
Sec. Sec.  1.2110 and 1.2111, and Sec. Sec.  24.709, 24.714, and 24.839 
of this chapter) or restrictions in Sec.  1.9046 and Sec.  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 Sec.  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 Sec.  1.933(a)) once accepted, and is subject to 
reconsideration (see Sec. Sec.  1.106(f), 1.108, 1.113).
    (2) Immediate processing procedures. Notifications that meet the 
requirements of paragraph (e)(2)(i) 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 Sec.  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 Sec. Sec.  1.2110 and 1.2111, and 
Sec. Sec.  24.709, 24.714, and 24.839 of this chapter); and,
    (C) The spectrum leasing arrangement does not require a waiver of, 
or declaratory ruling pertaining to, any applicable Commission rules.
    (ii) 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.
    (iii) A notification filed pursuant to these immediate processing 
procedures will be placed on an informational public notice on a weekly 
basis (see Sec.  1.933(a)) once accepted, and is subject to 
reconsideration (see Sec. Sec.  1.106(f), 1.108, 1.113).
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[FR Doc. 2017-09756 Filed 5-12-17; 8:45 am]
BILLING CODE 6712-01-P