90.699—Transition of the upper 200 channels in the 800 MHz band to EA licensing.

In order to facilitate provision of service throughout an EA, an EA licensee may relocate incumbent licensees in its EA by providing “comparable facilities” on other frequencies in the 800 MHz band. Such relocation is subject to the following provisions:

(a) EA licensees may negotiate with incumbent licensees as defined in § 90.693 operating on frequencies in Spectrum Blocks A, B, and C for the purpose of agreeing to terms under which the incumbents would relocate their operations to other frequencies in the 800 MHz band, or alternatively, would accept a sharing arrangement with the EA licensee that may result in an otherwise impermissible level of interference to the incumbent licensee's operations. EA licensees may also negotiate agreements for relocation of the incumbents' facilities within Spectrum Blocks A, B or C in which all interested parties agree to the relocation of the incumbent's facilities elsewhere within these bands. “All interested parties” includes the incumbent licensee, the EA licensee requesting and paying for the relocation, and any EA licensee of the spectrum to which the incumbent's facilities are to be relocated.

(b) The relocation mechanism consists of two phases that must be completed before an EA licensee may proceed to request the involuntary relocation of an incumbent licensee.

(1) Voluntary negotiations. There is a one year voluntary period during which an EA licensee and an incumbent may negotiate any mutually agreeable relocation agreement. The Commission will announce the commencement of the first phase voluntary period by Public Notice. EA licensees must notify incumbents operating on frequencies included in their spectrum block of their intention to relocate such incumbents within 90 days of the release of the Public Notice that commences the voluntary negotiation period. Failure on the part of the EA licensee to notify the incumbent licensee during this 90 period of its intention to relocate the incumbent will result in the forfeiture of the EA licensee's right to request involuntary relocation of the incumbent at any time in the future.

(2) Mandatory negotiations. If no agreement is reached by the end of the voluntary period, a one-year mandatory negotiation period will begin during which both the EA licensee and the incumbent must negotiate in “good faith.” Failure on the part of the EA licensee to negotiate in good faith during this mandatory period will result in the forfeiture of the EA licensee's right to request involuntary relocation of the incumbent at any time in the future.

(c) Involuntary relocation procedures. If no agreement is reached during either the voluntary or mandatory negotiating periods, the EA licensee may request involuntary relocation of the incumbent's system. In such a situation, the EA licensee must:

(1) Guarantee payment of relocation costs, including all engineering, equipment, site and FCC fees, as well as any legitimate and prudent transaction expenses incurred by the incumbent 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. EA licensees are not required to pay incumbent licensees for internal resources devoted to the relocation process. EA licensees are not required to pay for transaction costs incurred by incumbent 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) Complete 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 frequencies and frequency coordination; and

(3) Build the replacement system and test it for comparability with the existing 800 MHz system.

(d) Comparable facilities. The replacement system provided to an incumbent during an involuntary relocation must be at least equivalent to the existing 800 MHz system with respect to the following four factors:

(1) System. System is defined functionally from the end user's point of view (i.e., a system is comprised of base station facilities that operate on an integrated basis to provide service to a common end user, and all mobile units associated with those base stations). A system may include multiple-licensed facilities that share a common switch or are otherwise operated as a unitary system, provided that the end user has the ability to access all such facilities. A system may cover more than one EA if its existing geographic coverage extends beyond the EA borders.

(2) Capacity. To meet the comparable facilities requirement, an EA licensee must relocate the incumbent to facilities that provide equivalent channel capacity. We define channel capacity as the same number of channels with the same bandwidth that is currently available to the end user. For example, if an incumbent's system consists of five 50 kHz (two 25 kHz paired frequencies) channels, the replacement system must also have five 50 kHz channels. If a different channel configuration is used, it must have the same overall capacity as the original configuration. Comparable channel capacity requires equivalent signaling capability, baud rate, and access time. In addition, the geographic coverage of the channels must be coextensive with that of the original system.

(3) Quality of service. Comparable facilities must provide the same quality of service as the facilities being replaced. Quality of service is defined to mean that the end user enjoys the same level of interference protection on the new system as on the old system. In addition, where voice service is provided, the voice quality on the new system must be equal to the current system. Finally, reliability of service is considered to be integral to defining quality of service. Reliability is the degree to which information is transferred accurately within the system. Reliability is a function of equipment failures (e.g., transmitters, feed lines, antennas, receivers, battery back-up power, etc.) and the availability of the frequency channel due to propagation characteristics (e.g., frequency, terrain, atmospheric conditions, radio-frequency noise, etc.) For digital data systems, this will be measured by the percent of time the bit error rate exceeds the desired value. For analog or digital voice transmissions, this will be measured by the percent of time that audio signal quality meets an established threshold. If analog voice system is replaced with a digital voice system the resulting frequency response, harmonic distortion, signal-to-noise ratio, and reliability will be considered.

(4) Operating costs. Operating costs are those costs that affect the delivery of services to the end user. If the EA licensee provides facilities that entail higher operating cost than the incumbent's previous system, and the cost increase is a direct result of the relocation, the EA licensee must compensate the incumbent for the difference. Costs associated with the relocation process can fall into several categories. First, the incumbent must be compensated for any increased recurring costs associated with the replacement facilitates (e.g., additional rental payments, increased utility fees). Second, increased maintenance costs must be taken into consideration when determining whether operating costs are comparable. For example, maintenance costs associated with analog systems may be higher than the costs of digital equipment because manufacturers are producing mostly digital equipment and analog replacement parts can be difficult to find. An EA licensee's obligation to pay increased operating costs will end five years after relocation has occurred.

(e) If an EA licensee cannot provide comparable facilities to an incumbent licensee as defined in this section, the incumbent licensee may continue to operate its system on a primary basis in accordance with the provisions of this rule part.

(f) Cost-sharing plan for 800 MHz SMR EA licensees. EA licensees are required to relocate the existing 800 MHz SMR licensee in these bands if interference to the existing incumbent operations would occur. All EA licensees who benefit from the spectrum clearing by other EA licensees must contribute, on a pro rata basis to such relocation costs. EA licensees may satisfy this requirement by entering into private cost-sharing agreements or agreeing to terms other than those specified in this section. However, EA licensees are required to reimburse other EA licensees that incur relocation costs and are not parties to the alternative agreement as defined in this section.

(1) Pro rata formula. EA licensees who benefit from the relocation of the incumbent must share the relocation costs on a pro rata basis. For purposes of determining whether an EA licensee benefits from the relocation of an incumbent, benefitted will be defined as any EA licensee that:

(i) Notifies incumbents operating on frequencies included in their spectrum block of their intention to relocate such incumbents within 90 days of the release of the Public Notice that commences the voluntary negotiation period; or

(ii) Fails to notify incumbents operating on frequencies included in their spectrum block of their intention to relocate such incumbents within 90 days of the release of the Public Notice that commences the voluntary negotiation period, but subsequently decides to use the frequencies included in their spectrum block. EA licensees who do not participate in the relocation process will be prohibited from invoking mandatory negotiations or any of the provisions of the Commission's mandatory relocation guidelines. EA licensees who do not provide notice to the incumbent, but subsequently decide to use the frequencies in their EA will be required to reimburse, outside of the Commission's mandatory relocation guidelines, those EA licensees who have established a reimbursement right pursuant to paragraph (f)(3) of this section.

(2) Triggering a reimbursement obligation. An EA licensees reimbursement obligation is triggered by:

(i) Notification (i.e., files a copy of the relocation notice and proof of the incumbent's receipt of the notice to the Commission within ten days of receipt), to the incumbent within 90 days of the release of the Public Notice commencing the voluntary negotiation period of its intention to relocate the incumbent; or

(ii) An EA licensee who does not provide notification within 90 days of the release of the Public Notice commencing the voluntary negotiation period, but subsequently decides to use the channels that were relocated by other EA licensees.

(3) Triggering a reimbursement right. In order for the EA licensee to trigger a reimbursement right, the EA licensee must notify (i.e., files a copy of the relocation notice and proof of the incumbent's receipt of the notice to the Commission within ten days of receipt), the incumbent of its intention to relocate the incumbent within 90 days of the release of the Public Notice commencing the voluntary negotiation period, and subsequently negotiate and sign a relocation agreement with the incumbent. An EA licensee who relocates a channel outside of its licensed EA (i.e., one that is in another frequency block or outside of its market area), is entitled to pro rata reimbursement from non-notifying EA licensees who subsequently exercise their right to the channels based on the following formula:

Code of Federal Regulations

[Please see PDF for image: ER31JY97.002 ]

Ciequals the amount of reimbursement

Tcequals the actual cost of relocating the incumbent

TChequals the total number of channels that are being relocated

Chjequals the number of channels that each respective EA licensee will benefit from

(4) Payment issues. EA licensees who benefit from the relocation of the incumbent will be required to submit their pro rata share of the relocation expense to EA licensees who have triggered a reimbursement right and have incurred relocation costs as follows:

(i) For an EA licensee who, within 90 days of the release of the Public Notice announcing the commencement of the voluntary negotiation period, provides notice of its intention to relocate the incumbent, but does not participate or incur relocation costs in the relocation process, will be required to reimburse those EA licensees who have triggered a reimbursement right and have incurred relocation costs during the relocation process, its pro rata share when the channels of the incumbent have been cleared (i.e., the incumbent has been fully relocated and the channels are free and clear).

(ii) For an EA licensee who does not, within 90 days of the release of the Public Notice announcing the commencement of the voluntary negotiation period, provide notice to the incumbent of its intention to relocate and does not incur relocation costs during the relocation process, but subsequently decides to use the channels in its EA, will be required to submit its pro rata share payment to those EA licensees who have triggered a reimbursement right and have incurred relocation costs during the relocation process prior to commencing testing of its system.

(5) Sunset of reimbursement rights. EA licensees who do not trigger a reimbursement obligation as set forth in paragraph (f)(2) of this section, shall not be required to reimburse EA licensees who have triggered a reimbursement right as set forth in paragraph (f)(3) of this section ten (10) years after the voluntary negotiation period begins for EA licensees (i.e., ten (10) years after the Commission releases the Public Notice commencing the voluntary negotiation period).

(6) Resolution of disputes that arise during relocation. Disputes arising out of the costs of relocation, such as disputes over the amount of reimbursement required, will be encouraged to use expedited ADR procedures. ADR procedures provide several alternative methods such as binding arbitration, mediation, or other ADR techniques.

(7) Administration of the cost-sharing plan. We will allow for an industry supported, not-for-profit clearinghouse to be established for purposes of administering the cost-sharing plan adopted for the 800 MHz SMR relocation procedures.

[62 FR 41217, July 31, 1997]

CFR

90.699—Transition of the upper 200 channels in the 800 MHz band to EA licensing.

Code of Federal Regulations