Sec.  74.986   Involuntary ITFS station modifications.

   

   (a) Parties specified in paragraph (b) of this section may, subject to
   Commission approval, involuntarily 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.

   (8) There are no response station hubs licensed to or
   previously-proposed by any of the parties specified in paragraph (b)
   of this section, in the same system as the existing ITFS licensee of
   whose facilities involuntary modification is sought; however, in no
   event shall the Commission approve an involuntary retuning of an
   existing ITFS licensee's station to other frequencies, except as
   provided in Sec. 74.902(i) through (k).

   (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, as amended at  63 FR 65127 , Nov. 25, 1998]