This News Release: Text | Word97
Statements: Kennard | Ness | Tristani
Policy Statement: FCC 00-401 - Text | Word | Acrobat
Related NPRM: FCC 00-402 - Text | Word | Acrobat

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Federal Communications Commission
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This is an unofficial announcement of Commission action. Release of the full text of a Commission order constitutes official action. See MCI v. FCC. 515 F 2d 385 (D.C. Circ 1974).

November 9, 2000
David Fiske at 202-418-0513


Washington, DC - The Federal Communications Commission adopted a Policy Statement and Notice of Proposed Rulemaking (NPRM) today setting forth a framework to promote the development of more robust "secondary markets" in radio spectrum. Demand for spectrum has increased dramatically as a result of explosive growth in wireless communications technologies and user demand for wireless services. This demand threatens to outstrip supply and to impede the future growth of wireless services. An effectively functioning system of secondary markets will allow and encourage licensees to freely trade or lease their unused or unneeded spectrum capacity. Secondary market transactions could increase the amount of spectrum available to prospective users, uses, and new wireless technologies by making more effective use of spectrum that is currently assigned to existing licensees.

Summary of Policy Statement: The Policy Statement sets forth the Commission's principles for promoting the efficient use of radio spectrum by encouraging the development of secondary markets. A robust system of secondary markets will allow and encourage licensees to make all or portions of their spectrum usage rights available to other entities and uses. The goal of this effort is to promote the operation of competitive markets for the sale and lease of the right to use spectrum by licensees. This will facilitate both the transfer of spectrum usage rights for existing services to new, higher valued uses and the availability of unused and underutilized spectrum to those who would use it for providing service.

The Policy Statement articulates four guiding principles for this initiative:

1. Licensees should generally have clearly defined usage rights to their spectrum, including frequency bands, service areas, and license terms of sufficient length, with reasonable renewal expectancy, to encourage investment.

2. Licenses and spectrum usage rights should be easily transferable for lease or sale, divisible, or aggregatable.

3. Licensees/users should have flexibility in determining the services to be provided and the technology used for operation consistent with the other policies and rules governing the service.

4. Licensees/users have a fundamental obligation to protect against, and the right to be protected from, interference to the extent provided in the Commission's rules.

The Policy Statements identifies three key areas that the FCC will focus on in its efforts to foster the development of secondary markets:

1. Remove, relax or modify our rules and procedures to eliminate unnecessary barriers to the operation of secondary market processes and to promote flexibility and fungibility (exchangeable or substitutable) in the use of spectrum.

2. Encourage advances in equipment that will facilitate use of available spectrum for a broad range of services, e.g. software-defined radio and multi-band equipment.

3. Encourage mechanisms, including information sources, spectrum exchanges, and brokers, that bring together buyers and sellers and effect transfers of spectrum in a timely and cost effective manner.

Summary of Notice of Proposed Rulemaking: In today's NPRM, the Commission tentatively concludes that the wider use of spectrum rights leasing by existing Commission licensees of wireless radio spectrum will promote the public interest. Leasing of spectrum rights encompasses a continuum of arrangements that licensees might enter into with third parties, including other licensees. Such arrangements range from the leasing of excess capacity on licensees' existing systems to the leasing of portions or all of licensees' right to use licensed spectrum. The Commission states in this NPRM that wider use of spectrum rights leasing will increase the efficient use of spectrum and will enable more entities to gain access to the use of spectrum. Through leasing arrangements, additional spectrum usage rights can be made available for those existing services that are spectrum constrained. Further, leasing should facilitate the more rapid deployment of spectrum based services, including in underserved rural areas.

The Commission seeks comment on a basic proposal that applies to a large set of the Wireless Radio Services licenses, including both mobile and fixed services. Specifically, the Commission proposes that most wireless radio licensees with "exclusive" rights to their assigned spectrum have the flexibility to lease their spectrum usage rights to third party users without having to secure prior FCC approval. This proposal affects services such as cellular, Personal Communications Services (PCS), Specialized Mobile Radio (SMR), Local Multipoint Distribution Service (LMDS), fixed microwave, 24 GHz, and 39 GHz, among others.

A central feature of the proposed approach is that licensees at all times will retain ultimate responsibility and accountability for ensuring that their lessees comply with the requirements of the Communications Act, and any applicable Commission policies and rules. Under the proposal, all of the interference, frequency coordination, and other technical rules applicable to the licensee also apply to the entities leasing the spectrum usage rights. The NPRM also makes several proposals regarding how service rules applicable to licensees - such as eligibility rules, use restrictions, spectrum caps, unjust enrichment rules, and the requirements arising from the regulatory classification - should be applied so as to promote spectrum leasing without undermining the principles of our service rules.

In order to promote the wider use of spectrum leasing, the Commission proposes to apply a less restrictive transfer of control standard than the Intermountain Microwave standard for interpreting Section 310(d) in the context of these arrangements. The NPRM, however, does not propose to change the manner in which the Commission currently applies the Intermountain Microwave standard outside of the spectrum leasing context.

Finally, in the NPRM the Commission notes that the information currently gathered in the FCC's database, the Universal Licensing System, only contains limited data on spectrum use. Recognizing that secondary markets in spectrum usage rights can operate best when information regarding spectrum use in the marketplace is easily available, the Commission seeks comment on any steps it should take to facilitate the availability of such information.

Action by the Commission on November 9, 2000, by Policy Statement (FCC 00-401). Chairman Kennard, Commissioners Ness, Furchtgott-Roth and Powell, with Commissioner Tristani dissenting in part, and Commissioners Ness, Furchtgott-Roth and Tristani issuing statements.

Staff Contact: Lisa Gaisford at (202) 418-7280, e-mail:

Action by the Commission on November 9, 2000 by Notice of Proposed Rulemaking (FCC 00-402). Chairman Kennard, Commissioners Ness, Furchtgott-Roth, Powell and Tristani, with Commissioners Ness, Furchtgott-Roth and Tristani issuing statements.

Staff Contact: Paul Murray at (202) 418-7240; TTY at (202) 418-7233; e-mail:

WT Docket No. 00-230