§  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 § 74.602(a)(3) of this part. Parties may not decline
   to negotiate, though Existing Licensees may decline to be relocated.

   (i) MSS licensees may relocate all Existing Licensees in Nielsen
   Designated Market Areas (DMAs) 1-30, as such DMAs existed on September
   6, 2000, except those Existing Licensees that decline relocation. Such
   relocation negotiations shall be conducted as "mandatory negotiations,"
   as that term is used in § 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 § 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 § 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;  74 FR 29613 , June 23, 2009]

Subpart C--General Operating Requirements