Sec.  90.699   Transition of the upper 200 channels in the 800 MHz band to EA
licensing.

   In order to facilitate provision of service throughout an EA, an EA licensee
   may  relocate  incumbent  licensees in its EA by providing “comparable
   facilities” on other frequencies in the 800 MHz band. Such relocation is
   subject to the following provisions:

   (a)  EA licensees may negotiate with incumbent licensees as defined in
    Sec. 90.693 operating on frequencies in Spectrum Blocks A, B, and C for the
   purpose of agreeing to terms under which the incumbents would relocate their
   operations to other frequencies in the 800 MHz band, or alternatively, would
   accept a sharing arrangement with the EA licensee that may result in an
   otherwise impermissible level of interference to the incumbent licensee's
   operations. EA licensees may also negotiate agreements for relocation of the
   incumbents'  facilities  within Spectrum Blocks A, B or C in which all
   interested parties agree to the relocation of the incumbent's facilities
   elsewhere  within  these  bands. “All interested parties” includes the
   incumbent  licensee,  the  EA  licensee  requesting and paying for the
   relocation, and any EA licensee of the spectrum to which the incumbent's
   facilities are to be relocated.

   (b) The relocation mechanism consists of two phases that must be completed
   before an EA licensee may proceed to request the involuntary relocation of
   an incumbent licensee.

   (1) Voluntary negotiations. There is a one year voluntary period during
   which an EA licensee and an incumbent may negotiate any mutually agreeable
   relocation agreement. The Commission will announce the commencement of the
   first phase voluntary period by Public Notice. EA licensees must notify
   incumbents operating on frequencies included in their spectrum block of
   their intention to relocate such incumbents within 90 days of the release of
   the Public Notice that commences the voluntary negotiation period. Failure
   on the part of the EA licensee to notify the incumbent licensee during this
   90 period of its intention to relocate the incumbent will result in the
   forfeiture of the EA licensee's right to request involuntary relocation of
   the incumbent at any time in the future.

   (2) Mandatory negotiations. If no agreement is reached by the end of the
   voluntary period, a one-year mandatory negotiation period will begin during
   which  both  the EA licensee and the incumbent must negotiate in “good
   faith.” Failure on the part of the EA licensee to negotiate in good faith
   during  this  mandatory period will result in the forfeiture of the EA
   licensee's right to request involuntary relocation of the incumbent at any
   time in the future.

   (c) Involuntary relocation procedures. If no agreement is reached during
   either the voluntary or mandatory negotiating periods, the EA licensee may
   request  involuntary  relocation  of the incumbent's system. In such a
   situation, the EA licensee must:

   (1)  Guarantee payment of relocation costs, including all engineering,
   equipment,  site  and  FCC fees, as well as any legitimate and prudent
   transaction expenses incurred by the incumbent licensee that are directly
   attributable to an involuntary relocation, subject to a cap of two percent
   of the hard costs involved. Hard costs are defined as the actual costs
   associated  with providing a replacement system, such as equipment and
   engineering  expenses.  EA licensees are not required to pay incumbent
   licensees for internal resources devoted to the relocation process. EA
   licensees  are  not  required to pay for transaction costs incurred by
   incumbent licensees during the voluntary or mandatory periods once the
   involuntary period is initiated, or for fees that cannot be legitimately
   tied to the provision of comparable facilities;

   (2) Complete all activities necessary for implementing the replacement
   facilities,  including engineering and cost analysis of the relocation
   procedure and, if radio facilities are used, identifying and obtaining, on
   the incumbents' behalf, new frequencies and frequency coordination; and

   (3) Build the replacement system and test it for comparability with the
   existing 800 MHz system.

   (d) Comparable facilities. The replacement system provided to an incumbent
   during an involuntary relocation must be at least equivalent to the existing
   800 MHz system with respect to the following four factors:

   (1) System. System is defined functionally from the end user's point of view
   ( i.e., a system is comprised of base station facilities that operate on an
   integrated basis to provide service to a common end user, and all mobile
   units  associated  with  those  base  stations).  A system may include
   multiple-licensed facilities that share a common switch or are otherwise
   operated as a unitary system, provided that the end user has the ability to
   access all such facilities. A system may cover more than one EA if its
   existing geographic coverage extends beyond the EA borders.

   (2) Capacity. To meet the comparable facilities requirement, an EA licensee
   must relocate the incumbent to facilities that provide equivalent channel
   capacity. We define channel capacity as the same number of channels with the
   same bandwidth that is currently available to the end user. For example, if
   an  incumbent's  system  consists  of  five  50 kHz (two 25 kHz paired
   frequencies) channels, the replacement system must also have five 50 kHz
   channels. If a different channel configuration is used, it must have the
   same overall capacity as the original configuration. Comparable channel
   capacity requires equivalent signaling capability, baud rate, and access
   time.  In  addition,  the  geographic coverage of the channels must be
   coextensive with that of the original system.

   (3) Quality of service. Comparable facilities must provide the same quality
   of service as the facilities being replaced. Quality of service is defined
   to mean that the end user enjoys the same level of interference protection
   on the new system as on the old system. In addition, where voice service is
   provided, the voice quality on the new system must be equal to the current
   system. Finally, reliability of service is considered to be integral to
   defining quality of service. Reliability is the degree to which information
   is transferred accurately within the system. Reliability is a function of
   equipment failures ( e.g., transmitters, feed lines, antennas, receivers,
   battery back-up power, etc.) and the availability of the frequency channel
   due to propagation characteristics ( e.g ., frequency, terrain, atmospheric
   conditions, radio-frequency noise, etc.) For digital data systems, this will
   be measured by the percent of time the bit error rate exceeds the desired
   value. For analog or digital voice transmissions, this will be measured by
   the  percent  of  time  that audio signal quality meets an established
   threshold. If analog voice system is replaced with a digital voice system
   the resulting frequency response, harmonic distortion, signal-to-noise
   ratio, and reliability will be considered.

   (4)  Operating  costs. Operating costs are those costs that affect the
   delivery of services to the end user. If the EA licensee provides facilities
   that entail higher operating cost than the incumbent's previous system, and
   the cost increase is a direct result of the relocation, the EA licensee must
   compensate the incumbent for the difference. Costs associated with the
   relocation process can fall into several categories. First, the incumbent
   must be compensated for any increased recurring costs associated with the
   replacement  facilitates ( e.g., additional rental payments, increased
   utility  fees). Second, increased maintenance costs must be taken into
   consideration when determining whether operating costs are comparable. For
   example, maintenance costs associated with analog systems may be higher than
   the costs of digital equipment because manufacturers are producing mostly
   digital equipment and analog replacement parts can be difficult to find. An
   EA licensee's obligation to pay increased operating costs will end five
   years after relocation has occurred.

   (e) If an EA licensee cannot provide comparable facilities to an incumbent
   licensee as defined in this section, the incumbent licensee may continue to
   operate its system on a primary basis in accordance with the provisions of
   this rule part.

   (f)  Cost-sharing  plan for 800 MHz SMR EA licensees. EA licensees are
   required to relocate the existing 800 MHz SMR licensee in these bands if
   interference  to the existing incumbent operations would occur. All EA
   licensees who benefit from the spectrum clearing by other EA licensees must
   contribute, on a pro rata basis to such relocation costs. EA licensees may
   satisfy this requirement by entering into private cost-sharing agreements or
   agreeing to terms other than those specified in this section. However, EA
   licensees are required to reimburse other EA licensees that incur relocation
   costs and are not parties to the alternative agreement as defined in this
   section.

   (1) Pro rata formula. EA licensees who benefit from the relocation of the
   incumbent must share the relocation costs on a pro rata basis. For purposes
   of determining whether an EA licensee benefits from the relocation of an
   incumbent, benefitted will be defined as any EA licensee that:

   (i) Notifies incumbents operating on frequencies included in their spectrum
   block of their intention to relocate such incumbents within 90 days of the
   release  of the Public Notice that commences the voluntary negotiation
   period; or

   (ii) Fails to notify incumbents operating on frequencies included in their
   spectrum block of their intention to relocate such incumbents within 90 days
   of the release of the Public Notice that commences the voluntary negotiation
   period, but subsequently decides to use the frequencies included in their
   spectrum  block. EA licensees who do not participate in the relocation
   process will be prohibited from invoking mandatory negotiations or any of
   the provisions of the Commission's mandatory relocation guidelines. EA
   licensees who do not provide notice to the incumbent, but subsequently
   decide to use the frequencies in their EA will be required to reimburse,
   outside  of the Commission's mandatory relocation guidelines, those EA
   licensees who have established a reimbursement right pursuant to paragraph
   (f)(3) of this section.

   (2) Triggering a reimbursement obligation. An EA licensees reimbursement
   obligation is triggered by:

   (i) Notification ( i.e., files a copy of the relocation notice and proof of
   the incumbent's receipt of the notice to the Commission within ten days of
   receipt), to the incumbent within 90 days of the release of the Public
   Notice commencing the voluntary negotiation period of its intention to
   relocate the incumbent; or

   (ii) An EA licensee who does not provide notification within 90 days of the
   release of the Public Notice commencing the voluntary negotiation period,
   but subsequently decides to use the channels that were relocated by other EA
   licensees.

   (3)  Triggering a reimbursement right. In order for the EA licensee to
   trigger a reimbursement right, the EA licensee must notify ( i.e., files a
   copy of the relocation notice and proof of the incumbent's receipt of the
   notice to the Commission within ten days of receipt), the incumbent of its
   intention to relocate the incumbent within 90 days of the release of the
   Public Notice commencing the voluntary negotiation period, and subsequently
   negotiate and sign a relocation agreement with the incumbent. An EA licensee
   who relocates a channel outside of its licensed EA ( i.e., one that is in
   another frequency block or outside of its market area), is entitled to pro
   rata reimbursement from non-notifying EA licensees who subsequently exercise
   their right to the channels based on the following formula:
   [er31jy97.002.gif]

   Ci  equals the amount of reimbursement

   Tc  equals the actual cost of relocating the incumbent

   TCh  equals the total number of channels that are being relocated

   Chj  equals the number of channels that each respective EA licensee will
   benefit from

   (4) Payment issues. EA licensees who benefit from the relocation of the
   incumbent will be required to submit their pro rata share of the relocation
   expense to EA licensees who have triggered a reimbursement right and have
   incurred relocation costs as follows:

   (i) For an EA licensee who, within 90 days of the release of the Public
   Notice announcing the commencement of the voluntary negotiation period,
   provides notice of its intention to relocate the incumbent, but does not
   participate or incur relocation costs in the relocation process, will be
   required to reimburse those EA licensees who have triggered a reimbursement
   right and have incurred relocation costs during the relocation process, its
   pro rata share when the channels of the incumbent have been cleared ( i.e.,
   the incumbent has been fully relocated and the channels are free and clear).

   (ii) For an EA licensee who does not, within 90 days of the release of the
   Public Notice announcing the commencement of the voluntary negotiation
   period, provide notice to the incumbent of its intention to relocate and
   does  not  incur  relocation  costs during the relocation process, but
   subsequently decides to use the channels in its EA, will be required to
   submit its pro rata share payment to those EA licensees who have triggered a
   reimbursement right and have incurred relocation costs during the relocation
   process prior to commencing testing of its system.

   (5)  Sunset of reimbursement rights. EA licensees who do not trigger a
   reimbursement obligation as set forth in paragraph (f)(2) of this section,
   shall  not  be required to reimburse EA licensees who have triggered a
   reimbursement right as set forth in paragraph (f)(3) of this section ten
   (10) years after the voluntary negotiation period begins for EA licensees (
   i.e.,  ten  (10) years after the Commission releases the Public Notice
   commencing the voluntary negotiation period).

   (6) Resolution of disputes that arise during relocation. Disputes arising
   out  of  the  costs of relocation, such as disputes over the amount of
   reimbursement required, will be encouraged to use expedited ADR procedures.
   ADR  procedures  provide  several  alternative methods such as binding
   arbitration, mediation, or other ADR techniques.

   (7) Administration of the cost-sharing plan. We will allow for an industry
   supported, not-for-profit clearinghouse to be established for purposes of
   administering the cost-sharing plan adopted for the 800 MHz SMR relocation
   procedures.

   [ 62 FR 41217 , July 31, 1997]

Subpart T—Regulations Governing Licensing and Use of Frequencies in the 220–222
MHz Band

   Source:    56 FR 19603 , Apr. 29, 1991, unless otherwise noted.