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

   The 2110–2130 and 2160–2180 MHz microwave channels formerly listed in
    Sec. 22.591 have been re-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, as amended at  70 FR 19309 , Apr. 13, 2005]