Sec.  101.91   Involuntary relocation procedures.

   (a) If no agreement is reached during the negotiations period, an FSS
   licensee may initiate relocation procedures under the Commission's rules.
   FSS licensees are obligated to pay to relocate only the specific microwave
   links from which their systems may receive interference. Under these
   procedures, the FS licensee is required to relocate, provided that the FSS
   licensee:

   (1) Guarantees payment of relocation costs, including all engineering,
   equipment, site and FCC fees, as well as any legitimate and prudent
   transaction expenses incurred by the FS licensee that are directly
   attributable to the 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.
   FSS licensees are not required to pay FS licensees for internal resources
   devoted to the relocation process. FSS licensees are not required to pay for
   transaction costs incurred by FS licensees during the negotiations once the
   negotiation is initiated, or for fees that cannot be legitimately tied to
   the provision of comparable facilities;

   (2) 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 frequencies and frequency
   coordination; and

   (3) Builds the replacement system and tests it for comparability with the
   existing 18 GHz system.

   (b) Comparable facilities. The replacement system provided to an incumbent
   during a relocation must be at least equivalent to the existing FS system
   with respect to the following three factors:

   (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.

   (c) The FS 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. The FS licensee may
   take up to 12 months to make such adjustments and perform such testing.

   (d) If the FS licensee demonstrates to the Commission that the new
   facilities are not comparable to the former facilities, the Commission may
   require the FSS licensee to further modify or replace the FS licensee's
   equipment.

   [ 65 FR 54173 , Sept. 7, 2000, as amended at  66 FR 63516 , Dec. 7, 2001]