§  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
   § 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.