Sec.  22.602   Transition of the 2110-2130 and 2160-2180 MHz channels to
emerging technologies.

   

   Link to an amendment published at  70 FR 19309 , Apr. 13, 2005.

   The microwave channels listed in Sec. 22.591 have been allocated for use
   by emerging technologies (ET) services. No new systems will be
   authorized under this part. The rules in this section provide for a
   transition period during which existing Paging and Radiotelephone
   Service (PARS) licensees using these channels may relocate operations
   to other media or to other fixed channels, including those in other
   microwave bands. For PARS licensees relocating operations to other
   microwave bands, authorization must be obtained under part 101 of this
   chapter.

   (a) Licensees proposing to implement ET services may negotiate with
   PARS licensees authorized to use these channels, for the purpose of
   agreeing to terms under which the PARS licensees would--

   (1) Relocate their operations to other fixed microwave bands or other
   media, or alternatively,

   (2) Accept a sharing arrangement with the ET licensee that may result
   in an otherwise impermissible level of interference to the PARS
   operations.

   (b) PARS operations on these channels will continue to be co-primary
   with other users of this spectrum until two years after the FCC
   commences acceptance of applications for ET services, and until one
   year after an ET licensee initiates negotiations for relocation of the
   fixed microwave licensee's operations.

   (c) Voluntary Negotiations. During the two year voluntary negotiation
   period, negotiations are strictly voluntary and are not defined by any
   parameters. However, if the parties have not reached an agreement
   within one year after the commencement of the voluntary period, the
   PARS licensee must allow the ET licensee (if it so chooses) to gain
   access to the existing facilities to be relocated so that an
   independent third party can examine the PARS licensee's 2 GHz system
   and prepare an estimate of the cost and the time needed to relocate
   the PARS licensee to comparable facilities. The ET licensee must pay
   for any such estimate.

   (d) Mandatory Negotiations. If a relocation agreement is not reached
   during the two year voluntary period, the ET licensee may initiate a
   mandatory negotiation period. This mandatory period is triggered at
   the option of the ET licensee, but ET licensees may not invoke their
   right to mandatory negotiation until the voluntary negotiation period
   has expired. Once mandatory negotiations have begun, a PARS 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
   PARS licensee to comparable facilities in accordance with Section
   101.75(b) of this chapter;

   (2) If the PARS 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. 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.

   (e) Involuntary period. After the periods specified in paragraph (b)
   of this section have expired, ET licensees may initiate involuntary
   relocation procedures under the Commission's rules. ET licensees are
   obligated to pay to relocate only the specific microwave links to
   which their systems pose an interference problem. Under involuntary
   relocation, a PARS licensee is required to relocate, provided that:

   (1) The ET applicant, provider, licensee or representative 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 PARS licensee that are directly attributable
   to an involuntary 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. ET licensees are not required to pay PARS
   licensees for internal resources devoted to the relocation process. ET
   licensees are not required to pay for transaction costs incurred by
   PARS licensees during the voluntary or mandatory periods once the
   involuntary period is initiated or for fees that cannot be
   legitimately tied to the provision of comparable facilities;

   (2) The ET applicant, provider, licensee or representative completes
   all activities necessary for implementing the replacement facilities,
   including engineering and cost analysis of the relocation procedure
   and, if radio facilities are involved, identifying and obtaining, on
   the incumbents behalf, new channels and frequency coordination; and,

   (3) The ET applicant, provider, licensee or representative builds the
   replacement system and tests it for comparability with the existing 2
   GHz system.

   (f) Comparable Facilities. The replacement system provided to an
   incumbent during an involuntary relocation must be at least equivalent
   to the existing PARS 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 ET licensee is required
   to provide the PARS licensee with an equivalent number of 4 kHz voice
   channels. If digital facilities are being replaced with digital, the
   ET licensee must provide the PARS licensee with equivalent data
   loading bits per second (bps). ET licensees must provide PARS
   licensees with enough throughput to satisfy the PARS licensee's system
   use at the time of relocation, not match the total capacity of the
   PARS system.

   (2) Reliability. System reliability is the degree to which information
   is transferred accurately within a system. ET licensees must provide
   PARS 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 PARS system. ET licensees must compensate PARS licensees
   for any increased recurring costs associated with the replacement
   facilities (e.g. additional rental payments, increased utility fees)
   for five years after relocation. ET 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
   PARS licensee must be equivalent to the 2 GHz system in order for the
   replacement system to be considered comparable.

   (g) The PARS 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.

   (h) The Commission's Twelve-Month Trial Period. If, within one year
   after the relocation to new facilities, the PARS licensee demonstrates
   that the new facilities are not comparable to the former facilities,
   the ET applicant, provider, licensee or representative must remedy the
   defects or pay to relocate the PARS licensee to one of the following:
   its former or equivalent 2 GHz channels, another comparable frequency
   band, a land-line system, or any other facility that satisfies the
   requirements specified in paragraph (f) of this section. This trial
   period commences on the date that the PARS licensee begins full
   operation of the replacement link. If the PARS licensee has retained
   its 2 GHz authorization during the trial period, it must return the
   license to the Commission at the end of the twelve months.

   (i) After April 25, 1996, all major modifications and extensions to
   existing PARS systems operating on channels in the 2110-2130 and
   2160-2180 MHz bands will be authorized on a secondary basis to future
   ET operations. All other modifications will render the modified PARS
   license secondary to future ET operations unless the incumbent
   affirmatively justifies primary status and the incumbent PARS licensee
   establishes that the modification would not add to the relocation
   costs of ET licensees. Incumbent PARS licensees will maintain primary
   status for the following technical changes:

   (1) Decreases in power;

   (2) Minor changes (increases or decreases) in antenna height;

   (3) Minor location changes (up to two seconds);

   (4) Any data correction which does not involve a change in the
   location of an existing facility;

   (5) Reductions in authorized bandwidth;

   (6) Minor changes (increases or decreases) in structure height;

   (7) Changes (increases or decreases) in ground elevation that do not
   affect centerline height;

   (8) Minor equipment changes.

   (j) Sunset. PARS licensees will maintain primary status in the
   2110-2130 and 2160-2180 MHz bands unless and until an ET licensee
   requires use of the spectrum. ET licensees are not required to pay
   relocation costs after the relocation rules sunset (i.e. ten years
   after the voluntary period begins for the first ET licensees in the
   service). Once the relocation rules sunset, an ET licensee may require
   the incumbent to cease operations, provided that the ET licensee
   intends to turn on a system within interference range of the
   incumbent, as determined by TIA Bulletin 10-F or any standard
   successor. ET licensee notification to the affected PARS licensee must
   be in writing and must provide the incumbent with no less than six
   months to vacate the spectrum. After the six-month notice period has
   expired, the PARS licensee must turn its license back into the
   Commission, unless the parties have entered into an agreement which
   allows the PARS licensee to continue to operate on a mutually agreed
   upon basis. If the parties cannot agree on a schedule or an
   alternative arrangement, requests for extension will be accepted and
   reviewed on a case-by-case basis. The Commission will grant such
   extensions only if the incumbent can demonstrate that:

   (1) It cannot relocate within the six-month period (e.g., because no
   alternative spectrum or other reasonable option is available), and;

   (2) The public interest would be harmed if the incumbent is forced to
   terminate operations (e.g., if public safety communications services
   would be disrupted).

   [ 61 FR 29689 , June 12, 1996]