Goto Section: 90.693 | 90.701 | Table of Contents
FCC 90.699
Revised as of October 1, 2008
Goto Year:2007 |
2009
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.
Goto Section: 90.693 | 90.701
Goto Year: 2007 |
2009
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