§  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
   § 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) [Reserved]

   (c) Relocation of fixed microwave licensees in the 2110–2130 MHz and
   2160–2180 MHz bands will be subject to mandatory negotiations only. A
   separate mandatory negotiation period will commence for each fixed
   microwave licensee when an ET licensee informs that fixed microwave
   licensee in writing of its desire to negotiate. Mandatory negotiation
   periods are defined as follows:

   (1) Non-public safety incumbents will have a two-year mandatory
   negotiation period; and

   (2) Public safety incumbents will have a three-year mandatory
   negotiation period.

   (d) The mandatory negotiation period is triggered at the option of the
   ET licensee. 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 end of the mandatory negotiation
   period, 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) [Reserved]

   (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 MHz 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. , for the
   2110–2130 MHz and 2160–2180 MHz bands, ten years after the first ET
   license is issued in the respective band). 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 TSB 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).

   (k) Reimbursement and relocation expenses in the 2110–2130 MHz and
   2160–2180 MHz bands. Whenever an ET licensee in the 2110–2130 MHz and
   2160–2180 MHz band relocates a paired PARS link with one path in the
   2110–2130 MHz band and the paired path in the 2160–2180 MHz band, the
   ET license will be entitled to reimbursement pursuant to the procedures
   described in § § 27.1160 through 27.1174 of this chapter.

   [ 61 FR 29689 , June 12, 1996, as amended at  70 FR 19309 , Apr. 13, 2005;
    71 FR 29834 , May 24, 2006]