Sec.  101.73   Mandatory negotiations.

   (a) A mandatory negotiation period may be initiated at the option of the ET
   licensee. Relocation of FMS licensees by Mobile Satellite Service (MSS)
   operators (including MSS operators providing Ancillary Terrestrial Component
   (ATC) service) and AWS licensees in the 2110–2150 MHz and 2160–2200 MHz
   bands will be subject to mandatory negotiations only.

   (b) Once mandatory negotiations have begun, an FMS licensee may not refuse
   to negotiate and all parties are required to negotiate in good faith. Good
   faith requires each party to provide information to the other that is
   reasonably necessary to facilitate the relocation process. In evaluating
   claims that a party has not negotiated in good faith, the FCC will consider,
   inter alia, the following factors:

   (1) Whether the ET licensee has made a bona fide offer to relocate the FMS
   licensee to comparable facilities in accordance with Section 101.75(b);

   (2) If the FMS licensee has demanded a premium, the type of premium
   requested (e.g., whether the premium is directly related to relocation, such
   as system-wide relocations and analog-to-digital conversions, versus other
   types of premiums), and whether the value of the premium as compared to the
   cost of providing comparable facilities is disproportionate (i.e., whether
   there is a lack of proportion or relation between the two);

   (3) What steps the parties have taken to determine the actual cost of
   relocation to comparable facilities;

   (4) Whether either party has withheld information requested by the other
   party that is necessary to estimate relocation costs or to facilitate the
   relocation process.

   (c) Any party alleging a violation of our good faith requirement must attach
   an independent estimate of the relocation costs in question to any
   documentation filed with the Commission in support of its claim. An
   independent cost estimate must include a specification for the comparable
   facility and a statement of the costs associated with providing that
   facility to the incumbent licensee.

   (d) Provisions for Relocation of Fixed Microwave Licensees in the 2110–2150
   and 2160–2200 MHz bands. Except as otherwise provided in  Sec. 101.69(e)
   pertaining to FMS relocations by MSS/ATC operators, a separate mandatory
   negotiation period will commence for each FMS licensee when an ET licensee
   informs that FMS licensee in writing of its desire to negotiate. Mandatory
   negotiations will be conducted with the goal of providing the FMS licensee
   with comparable facilities defined as facilities possessing the following
   characteristics:

   (1) Throughput. Communications throughput is the amount of information
   transferred within a system in a given amount of time. If analog facilities
   are being replaced with analog, comparable facilities provide an equivalent
   number of 4 kHz voice channels. If digital facilities are being replaced
   with digital, comparable facilities provide equivalent data loading bits per
   second (bps).

   (2) Reliability. System reliability is the degree to which information is
   transferred accurately within a system. Comparable facilities provide
   reliability equal to the overall reliability of the FMS system. For digital
   systems, reliability is measured by the percent of time the bit error rate
   (BER) exceeds a desired value, and for analog or digital voice transmission,
   it is measured by the percent of time that audio signal quality meets an
   established threshold. If an analog system is replaced with a digital
   system, only the resulting frequency response, harmonic distortion,
   signal-to-noise and its reliability will be considered in determining
   comparable reliability.

   (3) Operating Costs. Operating costs are the cost to operate and maintain
   the FMS system. ET licensees would compensate FMS licensees for any
   increased recurring costs associated with the replacement facilities (e.g.,
   additional rental payments, and increased utility fees) for five years after
   relocation. ET licensees could satisfy this obligation by making a lump-sum
   payment based on present value using current interest rates. Additionally,
   the maintenance costs to the FMS licensee would be equivalent to the 2 GHz
   system in order for the replacement system to be comparable.

   [ 61 FR 29694 , June 12, 1996, as amended at  62 FR 12758 , Mar. 18, 1997;  65 FR 48182 , Aug. 7, 2000;  68 FR 3464 , Jan. 24, 2003;  68 FR 68253 , Dec. 8, 2003;
    69 FR 62622 , Oct. 27, 2004;  71 FR 29842 , May 24, 2006]