FCC's New Procedures for Renewing Geographic Area Licenses Take Effect January 1, 2023

The FCC’s new rules and procedures for renewing geographic area wireless licenses will go into effect on January 1, 2023. These new rules and procedures will apply to covered geographic area licenses (as specified in Section 1.907 of the FCC’s rules) which must be renewed on or after January 1, 2023.

Under the new rules, a licensee will be required to either certify that it meets one of the renewal “safe harbors” (described below) or, if it cannot meet one of the safe harbors, to submit a detailed “renewal showing” that will be evaluated by the FCC on a case-by-case basis. If a licensee cannot meet the renewal standard under one of the safe harbors or the renewal showing, its licensed spectrum will automatically be returned to the FCC.

Renewal Safe Harbors

The new renewal safe harbors for geographic area licenses vary slightly depending on whether the license is for the provision of commercial services or for a private wireless system (such as a utility or public safety network). The FCC has also clarified that, for purposes of renewal, a licensee’s “use of facilities” includes operations by a lessee of the licensee’s spectrum under any spectrum leasing arrangement.

The specific renewal safe harbors are as follows:

• Commercial service license in its initial license term: The licensee must certify that (1) it has met its interim (if applicable) and final performance requirements; and (2) it continues to use its facilities to provide at least the level of service required by its performance requirements through the end of the license term.

• Commercial service license in any subsequent license term: The licensee must certify that it continues to use its facilities to provide at least the level of service required by its final performance requirement through the end of any subsequent license terms.

• Private system license in its initial term: The licensee must certify that (1) it has met its interim performance requirement (if applicable) and that, over the portion of the license term following its interim performance requirement, it continues to use its facilities to further its private business or public interest/public safety needs at or above the required interim performance level; and (2) it has met its final performance requirement and continues to use its facilities to provide at least the level of operation required by its final performance requirement through the end the end of the license term.

• Private system license in any subsequent license term: The licensee must certify that it continues to use its facilities to further the licensee’s private business or public interest/public safety needs at or above the level of service required to meet its final performance requirement through the end of any subsequent license terms.

• Partitioned or disaggregated license without a performance requirement: The licensee must certify that (1) it continues to use its facilities to provide service or to further the licensee’s private business or public interest/public safety needs; and (2) no permanent discontinuance of service occurred during the license term.

The FCC plans to have the safe harbor certification questions appear automatically when renewal applications are filed electronically through the Universal Licensing System (ULS), but if that capability is not available on January 1, 2023, licensees will be allowed to make those certifications in an attachment to their applications.

“Continues to Use its Facilities”

For renewal applications filed on or after January 1, 2023, the phrase “continues to use its facilities” means that that the licensee must certify that it has continuously provided service or operated at or above the required service level since the later of (1) September 28, 2020 (the date the FCC’s service continuity rules went into effect); or (2) the applicable interim or final performance benchmark date. If a licensee temporarily drops below the applicable performance requirement for fewer than 180 days during this time, its service or operations will still be considered “continuous” and the licensee may use the renewal safe harbor.

Renewal Showing

If a licensee cannot meet one of the renewal safe harbors described above, it will be required to provide a “renewal showing” that describes its provision of commercial service or how it has used the spectrum to meet its private, internal communications needs during the entire license period. The renewal showing must also specifically address (1) the level and quality of the service provided; (2) the date service commenced, whether service was ever interrupted, and the duration of any interruption or outage; (3) the extent to which service is provided to rural areas and/or to qualifying tribal land; and (4) any other factors associated with the level of operation or the level of service provided to the public. The FCC will evaluate each renewal showing on a case-by-case basis to determine whether renewal is warranted.

Additional Certifications

In addition to the renewal certifications or showing described above, a licensee filing a renewal application must also certify that no permanent discontinuance of service or operation occurred during the license term. For geographic licenses, permanent discontinuance is defined as 180 consecutive days during which a licensee does not operate or, in the case of commercial mobile radio service providers, does not provide service to at least one unaffiliated subscriber. Licensees should note that, under the recently revised discontinuance rules, the use of “channel keepers” (e.g., devices that transmit test signals, tones, color bars, or some combination of these) will not be considered operation or service.

Finally, a licensee applying for renewal must certify that it has substantially complied with the Communications Act of 1934 and all applicable FCC rules and policies, as well as with the terms of any waivers that may have been granted to the licensee.

If you have questions about the FCC’s license renewal procedures and requirements, please contact an attorney in our Broadband, Spectrum, and Communications Infrastructure practice group.