§ 101.89   Negotiations.

   (a)  The negotiation is triggered by the fixed-satellite service (FSS)
   licensee, who must contact the fixed services (FS) licensee and request that
   negotiations begin.

   (b) Once negotiations have begun, an FS 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 FSS licensee has made a bona fide offer to relocate the FS
   licensee to comparable facilities in accordance with § 101.91(b);

   (2) If the FS 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) Negotiations will commence when the FSS licensee informs the FS licensee
   in writing of its desire to negotiate. Negotiations will be conducted with
   the goal of providing the FS 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, the FSS licensee is required to provide the
   FS licensee with an equivalent number of 4 kHz voice channels. If digital
   facilities are being replaced with digital, the FSS licensee must provide
   the FS licensee with equivalent data loading bits per second (bps). FSS
   licensees must provide FS licensees with enough throughput to satisfy the FS
   licensee's  system  use at the time of relocation, not match the total
   capacity of the FS system.

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

   (3) Operating costs. Operating costs are the cost to operate and maintain
   the FS system. FSS licensees must compensate FS licensees for any increased
   recurring costs associated with the replacement facilities (e.g., additional
   rental payments, increased utility fees) for five years after relocation.
   FSS licensees may satisfy this obligation by making a lump-sum payment based
   on present value using current interest rates. Additionally, the maintenance
   costs to the FS licensee must be equivalent to the 18 GHz system in order
   for the replacement system to be considered comparable.

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