Sec. 74.986  Involuntary ITFS station modifications.

    (a) Parties specified in paragraph (b) of this section may, subject 
to Commission approval, involuntary modify the facilities of an existing 
ITFS licensee in the following situations:
    (1) If the initiating party is prevented from invoking the 0 dB 
interference protection standard (see Sec. 21.902(f)(2) of this chapter 
and Sec. 74.903(a)(2) of this part) for projecting its impact on an 
existing ITFS licensee because of that licensee's pre-May 26, 1983, 
facilities, the applicant, permittee or licensee may modify the 
facilities of the pre-existing ITFS station with equipment adequate to 
perform at that level of interference;
    (2) If the initiating party is prevented from operating at a higher 
transmitter output power or EIRP because such power level will cause 
harmful interference to an ITFS station and modifying the ITFS station 
will avoid such harmful interference;
    (3) If the initiating party is prevented from installing a signal 
booster because such installation will cause harmful interference to an 
ITFS station and modifying the ITFS station will avoid harmful 
interference;
    (4) If an ITFS licensee uses equipment incapable of meeting the 
aural power standard specified in Sec. 74.935(d) and that equipment 
becomes a source of harmful adjacent-channel interference, and other 
equipment would avoid such harmful intereference.
    (5) If an ITFS licensee uses equipment incapable of meeting the 
transmitter tolerance standard specified in Sec. 74.961 of this part and 
that equipment becomes a source of harmful co-channel interference, and 
other equipment would avoid the harmful interference;
    (6) If an ITFS licensee uses equipment incapable of meeting the out-
of-band emissions standard specified in Sec. 74.936 of this part and 
that equipment becomes a source of harmful adjacent-channel 
interference, and other equipment would avoid the harmful interference; 
and
    (7) If harmful adjacent-channel interference may be avoided by 
colocation of an ITFS facility with its own facilities.

[[Page 473]]

    (b) Involuntary modification may be sought by an MDS, MMDS or ITFS 
licensee, conditional licensee, permittee or applicant. Opposed 
applicants do not have authority to seek involuntary colocation. An 
opposed application is one that faces a competing application(s) or 
petition(s) to deny. Applicants will be required to confirm their 
unopposed status after the period for competing applications and 
petitions to deny has passed. If an initiating application is opposed, 
the companion ITFS modification application will be returned. It may be 
refiled when the initial application is again unopposed.
    (c) The application for involuntary modification must be prepared, 
signed and filed by the initiating party. The applicant must submit FCC 
Form 330 but need not fill out section II (Legal Qualifications), and 
the application must include a cover letter clearly indicating that the 
modification is involuntary and identifying the parties involved. A copy 
of the application must be served on the affected ITFS party on or 
before the day of filing. The ITFS party to be modified will have a 60-
day period in which to oppose the modification application; the 
opposition should state objections to the modification with specificity, 
including engineering and other challenges. If the modification includes 
colocation, the opponent should address the desirability of the present 
site compared to the proposed new site.
    (d) The party initiating the modification will be responsible for 
all costs connected with the modification, including purchasing, testing 
and installing new equipment, labor costs, reconfiguration of existing 
equipment, administrative costs, legal and engineering expenses 
necessary to prepare and file the modification application, and other 
reasonable documented costs. The initiating party must secure a bond or 
establish an escrow account to cover reasonable incremental increase in 
ongoing expenses that will fall upon the modified ITFS entity and to 
cover expenses that would inure to the modified ITFS entity in the event 
the initiating party becomes bankrupt. In establishing a bond or escrow 
amount, such factors as projected electricity or maintenance expenses, 
or relocation expenses must be taken into account, as relevant in each 
case.
    (e) The involuntarily modified facilities must be operational before 
the initiating party will be permitted to begin its new or modified 
operations. The modification must not disrupt the ITFS licensee's 
provision of service, and the ITFS licensee has the right to inspect the 
construction or installation work.

[ 56 FR 57820 , Nov. 14, 1991]