§  101.73   Mandatory negotiations.

   (a) A mandatory negotiation period may be initiated at the option of
   the ET licensee. Relocation of FMS licensees by Mobile Satellite
   Service (MSS) operators (including MSS operators providing Ancillary
   Terrestrial Component (ATC) service) and AWS licensees in the 2110-2150
   MHz and 2160-2200 MHz bands will be subject to mandatory negotiations
   only.

   (b) Once mandatory negotiations have begun, an FMS 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 ET licensee has made a bona fide offer to relocate the
   FMS licensee to comparable facilities in accordance with Section
   101.75(b);

   (2) If the FMS 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) Provisions for Relocation of Fixed Microwave Licensees in the
   2110-2150 and 2160-2200 MHz bands. Except as otherwise provided in
   § 101.69(e) pertaining to FMS relocations by MSS/ATC operators, a
   separate mandatory negotiation period will commence for each FMS
   licensee when an ET licensee informs that FMS licensee in writing of
   its desire to negotiate. Mandatory negotiations will be conducted with
   the goal of providing the FMS 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, comparable facilities
   provide an equivalent number of 4 kHz voice channels. If digital
   facilities are being replaced with digital, comparable facilities
   provide equivalent data loading bits per second (bps).

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

   (3) Operating Costs. Operating costs are the cost to operate and
   maintain the FMS system. ET licensees would compensate FMS licensees
   for any increased recurring costs associated with the replacement
   facilities ( e.g. , additional rental payments, and increased utility
   fees) for five years after relocation. ET licensees could satisfy this
   obligation by making a lump-sum payment based on present value using
   current interest rates. Additionally, the maintenance costs to the FMS
   licensee would be equivalent to the 2 GHz system in order for the
   replacement system to be comparable.

   [ 61 FR 29694 , June 12, 1996, as amended at  62 FR 12758 , Mar. 18, 1997;
    65 FR 48182 , Aug. 7, 2000;  68 FR 3464 , Jan. 24, 2003;  68 FR 68253 , Dec.
   8, 2003;  69 FR 62622 , Oct. 27, 2004;  71 FR 29842 , May 24, 2006]