Sec.  78.40   Transition of the 1990–2025 MHz band from the Cable Television Relay
Service to emerging technologies.

   (a) New Entrants are collectively defined as those licensees proposing to
   use emerging technologies to implement Mobile Satellite Services in the
   2000–2020 MHz band (MSS licensees), those licensees authorized after July 1,
   2004 to implement new Fixed and Mobile services in the 1990–1995 MHz band,
   and those licensees authorized after September 9, 2004 in the 1995–2000 MHz
   and 2020–2025 MHz bands. New entrants may negotiate with Cable Television
   Relay Service licensees operating on a primary basis and fixed service
   licensees operating on a primary basis in the 1990–2025 MHz band (Existing
   Licensees) for the purpose of agreeing to terms under which the Existing
   Licensees would relocate their operations to the 2025–2110 MHz band, to
   other authorized bands, or to other media; or, alternatively, would accept a
   sharing arrangement with the New Entrants that may result in an otherwise
   impermissible level of interference to the Existing Licensee's operations.
   New licensees in the 1995–2000 MHz and 2020–2025 MHz bands are subject to
   the specific relocation procedures adopted in WT Docket 04–356.

   (b) Existing Licensees in the 1990–2025 MHz band allocated for licensed
   emerging technology services will maintain primary status in the band until
   a New Entrant completes relocation of the Existing Licensee's operations or
   the Existing Licensee indicates to a New Entrant that it declines to be
   relocated.

   (c) The Commission will amend the operating license of the Existing Licensee
   to secondary status only if the following requirements are met:

   (1) The service applicant, provider, licensee, or representative using an
   emerging technology guarantees payment of all relocation costs, including
   all engineering, equipment, site and FCC fees, as well as any reasonable
   additional costs that the relocated Existing Licensee might incur as a
   result of operation in another authorized band or migration to another
   medium;

   (2) The New Entrant completes 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 microwave or Cable Television
   Relay Service frequencies and frequency coordination.

   (3)  The  New  Entrant  builds the replacement system and tests it for
   comparability with the existing system.

   (d) The Existing Licensee is not required to relocate until the alternative
   facilities are available to it for a reasonable time to make adjustments,
   determine comparability, and ensure a seamless handoff.

   (e) If, within one year after the relocation to new facilities the Existing
   Licensee demonstrates that the new facilities are not comparable to the
   former facilities, the New Entrant must remedy the defect.

   (f) Subject to the terms of this paragraph (f), the relocation of Existing
   Licensees will be carried out by MSS licensees in the following manner:

   (1) Existing Licensees and MSS licensees may negotiate individually or
   collectively for relocation of Existing Licensees to one of the channel
   plans specified in  Sec. 74.602(a)(3) of this part. Parties may not decline to
   negotiate, though Existing Licensees may decline to be relocated.

   (i) MSS licensees must relocate all Existing Licensees in Nielsen Designated
   Market Areas (DMAs) 1–30, as such DMAs existed on September 6, 2000, prior
   to  beginning operations, except those Existing Licensees that decline
   relocation. Such relocation negotiations shall be conducted as “mandatory
   negotiations,” as that term is used in  Sec. 101.73 of this chapter. If these
   parties  are unable to reach a negotiated agreement, MSS Licensees may
   involuntarily relocate such Existing Licensees after December 8, 2004.

   (ii) [Reserved]

   (iii) On the date that the first MSS licensee begins operations in the
   2000–2020 MHz band, a one-year mandatory negotiation period begins between
   MSS licensees and Existing Licensees in DMAs 31–210, as such DMAs existed on
   September 6, 2000. After the end of the mandatory negotiation period, MSS
   licensees may involuntary relocate any Existing Licensees with which they
   have been unable to reach a negotiated agreement. As described elsewhere in
   this paragraph (f), MSS Licensees are obligated to relocate these Existing
   Licensees within the specified three- and five-year time periods.

   (2) Before negotiating with MSS licensees, Existing Licensees in Nielsen
   Designated Market Areas where there is a BAS frequency coordinator must
   coordinate  and select a band plan for the market area. If an Existing
   Licensee wishes to operate in the 2025–2110 MHz band using the channel plan
   specified in  Sec. 78.18(a)(6)(i) of this part, then all licensees within that
   Existing Licensee's market must agree to such operation and all must operate
   on a secondary basis to any licensee operating on the channel plan specified
   in  Sec. 78.18(a)(6)(ii). All negotiations must produce solutions that adhere to
   the market area's band plan.

   (3)–(4) [Reserved]

   (5) As of the date the first MSS Licensee begins operations in the 1990–2025
   MHz band, MSS Licensees must relocate Existing Licensees in DMAs 31–100, as
   they  existed  as of September 6, 2000, within three years, and in the
   remaining DMAs, as they existed as of September 6, 2000, within five years.

   (6) On December 9, 2013, all Existing Licensees will become secondary in the
   1990–2025  MHz band. Upon written demand by any MSS Licensee, Existing
   Licensees must cease operations in the 1990–2025 MHz band within six months.

   [ 65 FR 48181 , Aug. 7, 2000, as amended at  67 FR 53756 , Aug. 19, 2002;  68 FR 68253 , Dec. 8, 2003;  69 FR 62622 , Oct. 27, 2004;  69 FR 67836 , Nov. 22, 2004]

Subpart C—General Operating Requirements