§  90.677   Reconfiguration of the 806–824/851–869 MHz band in order to
separate cellular systems from non-cellular systems.

   In order to facilitate reconfiguration of the 806–824/851–869 MHz band
   (“800 MHz band”) to separate high-density cellular systems from
   non-cellular systems, Nextel Communications, Inc. (Nextel) may relocate
   incumbents within the 800 MHz band by providing “comparable
   facilities.” For the limited purpose of band reconfiguration, the
   provisions of § 90.157 shall not apply and inter-category sharing will
   be permitted under all circumstances. Such relocation is subject to the
   following provisions:

   (a) Within thirty days of Commission approval of the Transition
   Administrator, the Transition Administrator described in § 90.676 will
   provide the Commission with a schedule detailing when band
   reconfiguration shall commence for each NPSPAC Region. The plan should
   also detail—by NPSPAC Region—which relocation option each non-Nextel
   ESMR licensees has chosen. The Chief, Public Safety and Homeland
   Security Bureau will finalize and approve such a plan. The schedule
   shall provide for completion of band reconfiguration in no more than
   thirty-six months following release of a public notice announcing the
   start date of reconfiguration in the first NPSPAC region. Relocation
   will commence according to the schedule set by the Transition
   Administrator but all systems must have commenced reconfiguration
   within thirty months of release of a public notice announcing the start
   date of reconfiguration in the first NPSPAC region.

   (b) Voluntary negotiations . Thirty days before the start date for each
   NPSPAC region, the Chief, Public Safety and Homeland Security Bureau
   will issue a public notice initiating a three-month voluntary
   negotiation period. During this voluntary negotiation period, Nextel
   and all incumbents may negotiate any mutually agreeable relocation
   agreement. Nextel and relocating incumbents may agree to conduct
   face-to-face negotiations or either party may elect to communicate with
   the other party through the Transition Administrator.

   (c) Mandatory negotiations . If no agreement is reached by the end of
   the voluntary period, a three-month mandatory negotiation period will
   begin during which both Nextel and the incumbents must negotiate in
   “good faith.” Nextel and relocating incumbents may agree to conduct
   face-to-face negotiations or either party may elect to communicate with
   the other party through the Transition Administrator. All parties are
   charged with the obligation of utmost “good faith” in the negotiation
   process. Among the factors relevant to a “good-faith” determination
   are:

   (1) Whether the party responsible for paying the cost of band
   reconfiguration has made a bona fide offer to relocate the incumbent to
   comparable facilities;

   (2) The steps the parties have taken to determine the actual cost of
   relocation to comparable facilities; and

   (3) Whether either party has unreasonably withheld information,
   essential to the accurate estimation of relocation costs and
   procedures, requested by the other party. The Transition Administrator
   may schedule mandatory settlement negotiations and mediation sessions
   and the parties must conform to such schedules.

   (d) Transition Administrator. (1) The Transition Administrator, or
   other mediator, shall attempt to resolve disputes referred to it before
   the conclusion of the mandatory negotiation period as described in
   § 90.677(c) within thirty working days after the Transition
   Administrator has received a submission by one party and a response
   from the other party. Any party thereafter may seek expedited
   non-binding arbitration which must be completed within thirty days of
   the Transition Administrator's, or other mediator's recommended
   decision or advice. Should issues still remain unresolved after
   mediation or arbitration they shall be referred to the Chief, Public
   Safety and Homeland Security Bureau within ten days of the Transition
   Administrator's or other mediator's advice, or if arbitration has
   occurred, within ten days of the completion of arbitration. When
   referring an unresolved matter to the Chief, Public Safety and Homeland
   Security Bureau, the Transition Administrator shall forward the entire
   record on any disputed issues, including such dispositions thereof that
   the Transition Administrator has considered. Upon receipt of such
   record and advice, the Commission will decide the disputed issues based
   on the record submitted. The authority to make such decisions is
   delegated to the Chief, Public Safety and Homeland Security Bureau who
   may decide the disputed issue or designate it for an evidentiary
   hearing before an Administrative Law Judge. If the Chief, Public Safety
   and Homeland Security Bureau decides an issue, any party to the dispute
   wishing to appeal the decision may do so by filing with the Commission,
   within ten days of the effective date of the initial decision, a
   Petition for de novo review; whereupon the matter will be set for an
   evidentiary hearing before an Administrative Law Judge. Any disputes
   submitted to the Transition Administrator after the conclusion of the
   mandatory negotiation period as described in § 90.677(c) shall be
   resolved as described in § 90.677(d)(2).

   (2) If no agreement is reached during either the voluntary or mandatory
   negotiating periods, all disputed issues shall be referred to the
   Transition Administrator, or other mediator, who shall attempt to
   resolve them. If disputed issues remain thirty working days after the
   end of the mandatory negotiation period, the Transition Administrator
   shall forward the record to the Chief, Public Safety and Homeland
   Security Bureau, together with advice on how the matter(s) may be
   resolved. The Chief, Public Safety and Homeland Security Bureau is
   hereby delegated the authority to rule on disputed issues, de novo. If
   the Chief, Public Safety and Homeland Security Bureau decides an issue,
   any party to the dispute wishing to appeal the decision may do so by
   filing with the Commission, within ten days of the effective date of
   the initial decision, a Petition for de novo review; whereupon the
   matter will be set for an evidentiary hearing before an Administrative
   Law Judge.

   (e) Waiver Requests . Incumbents who wish not to relocate according to
   the schedule may petition the Commission for a waiver of the relocation
   obligation. Such a waiver would only be granted on a strict
   non-interference basis.

   (f) Comparable Facilities . The replacement system provided to an
   incumbent must be at least equivalent to the existing 800 MHz system
   with respect to the four factors described in § 90.699(d) part.

   (g) Information Exchange . Absent agreement between parties, the
   Transition Administrator will be responsible for determining the
   information that relocating incumbents must supply in support of a
   relocation agreement.

   (h) The relevant Regional Planning Committee shall be informed of any
   proposed changes to any NPSPAC channel.

   [ 69 FR 67849 , Nov. 22, 2004, as amended at  70 FR 76711 , Dec. 28, 2005;
    71 FR 52751 , Sept. 7, 2006;  71 FR 69038 , Nov. 29, 2006]

Policies Governing the Licensing and Use of EA-Based SMR Systems in the
809–824/851–869 MHz Band