Goto Section: 101.85 | 101.91 | Table of Contents
FCC 101.89
Revised as of December 4, 2012
Goto Year:2011 |
2013
§ 101.89 Negotiations.
(a) The negotiation is triggered by the fixed-satellite service (FSS)
licensee, who must contact the fixed services (FS) licensee and request
that negotiations begin.
(b) Once negotiations have begun, an FS 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 FSS licensee has made a bona fide offer to relocate the
FS licensee to comparable facilities in accordance with § 101.91(b);
(2) If the FS 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) Negotiations will commence when the FSS licensee informs the FS
licensee in writing of its desire to negotiate. Negotiations will be
conducted with the goal of providing the FS 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, the FSS licensee is required
to provide the FS licensee with an equivalent number of 4 kHz voice
channels. If digital facilities are being replaced with digital, the
FSS licensee must provide the FS licensee with equivalent data loading
bits per second (bps). FSS licensees must provide FS licensees with
enough throughput to satisfy the FS licensee's system use at the time
of relocation, not match the total capacity of the FS system.
(2) Reliability. System reliability is the degree to which information
is transferred accurately within a system. FSS licensees must provide
FS licensees with reliability equal to the overall reliability of their
system. For digital data systems, reliability is measured by the
percent of time the bit error rate (BER) exceeds a desired value, and
for analog or digital voice transmissions, it is measured by the
percent of time that audio signal quality meets an established
threshold. If an analog voice system is replaced with a digital voice
system, only the resulting frequency response, harmonic distortion,
signal-to-noise ratio and its reliability will be considered in
determining comparable reliability.
(3) Operating costs. Operating costs are the cost to operate and
maintain the FS system. FSS licensees must compensate FS licensees for
any increased recurring costs associated with the replacement
facilities (e.g., additional rental payments, increased utility fees)
for five years after relocation. FSS licensees may satisfy this
obligation by making a lump-sum payment based on present value using
current interest rates. Additionally, the maintenance costs to the FS
licensee must be equivalent to the 18 GHz system in order for the
replacement system to be considered comparable.
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Goto Section: 101.85 | 101.91
Goto Year: 2011 |
2013
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