**B****efore the**

Federal Communications Commission

Washington, D.C. 20554

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| In the Matter of                 | * | ET Docket No. 00-258         |
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| Amendment of Part 2 of the       | ) | WT Docket No. 02-353         |
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+----------------------------------+---+------------------------------+

NINTH REPORT AND ORDER AND ORDER

**Adopted: April 12, 2006 Released: April 21, 2006**

By the Commission: Commissioners Adelstein and Tate issuing separate
statements.

Table of Contents

Heading Paragraph \#

**I. introduction** 1

**II. background** 2

**III. ninth Report and order** 10

A. Relocation of BRS in the 2150-2160/62 MHz Band 11

1\. Relocation Process 16

2\. Negotiation Periods/Relocation Schedule 37

3\. Interference Issues/Technical Standards 46

B. Relocation of FS in the 2160-2175 MHz Band 55

C. Cost Sharing 64

1\. Relocation of Incumbent FS Licensees in the 2110-2150 MHz and
2160-2200 MHz Bands 65

a\. Cost Sharing between AWS Licensees 66

b\. Cost Sharing Triggers and Clearinghouse for AWS, MSS/ATC 86

2\. Relocation of Incumbent BRS Licensees in the 2150-2160/62 MHz Band
101

**IV. ORDER (WT Docket No. 02-353)** 126

**V. Procedural matters** 129

**VI. ordering clauses** 133

**APPENDIX A -- FINAL RULES**

**APPENDIX B -- FINAL REGULATORY FLEXIBILITY ANALYSIS**

**APPENDIX C -- LIST OF COMMENTERS AND REPLY COMMENTERS**

# introduction

1.  In this *Ninth Report and Order* ("*Ninth R&O*") in ET Docket No.
    00-258, we establish procedures for the relocation of Broadband
    Radio Service (BRS) operations from the 2150-2160/62 MHz band.[^1]
    We also establish procedures for the relocation of Fixed Microwave
    Service (FS) operations from the 2160-2175 MHz band and modify
    existing relocation procedures for the 2110-2150 MHz and 2175-2180
    MHz bands. In addition, we adopt cost-sharing rules to identify the
    reimbursement obligations for Advanced Wireless Service (AWS) and
    Mobile Satellite Service (MSS) entrants benefiting from the
    relocation of incumbent FS operations in the 2110-2150 MHz and
    2160-2200 MHz bands and AWS entrants benefiting from the relocation
    of BRS incumbents in the 2150-2160/62 MHz band. The Commission, in
    earlier decisions in this docket, has allocated the spectrum in the
    2150-2160/62 MHz and 2160-2175 MHz bands for AWS.[^2] Advanced
    wireless systems could provide, for example, a wide range of voice,
    data, and broadband services over a variety of mobile and fixed
    networks. In establishing these relocation procedures, we facilitate
    the introduction of AWS in these bands, while also ensuring the
    continuation of BRS and FS service to the public. In the *Order* in
    WT Docket No. 02-353, we dismiss a petition for reconsideration
    filed by the Wireless Communications Association International, Inc.
    (WCA) as moot.

# background

2.  Over the course of this proceeding, we have considered whether
    various spectrum bands should be used for AWS and, if so, what
    relocation mechanisms would be appropriate to relocate existing
    services in the bands. This *Ninth R&O* looks primarily at
    relocation procedures for 25 megahertz of spectrum at 2150-2160/62
    MHz and 2160-2175 MHz that has already been reallocated for AWS and
    that contains incumbent BRS and FS licensees.

3.  BRS operations in the 2150-2160/62 MHz band consist of two channels
    -- channel 1 (2150-2156 MHz) and channel 2A (2156-2160 MHz).[^3]
    Licensees may also use channel 2 (2156-2162 MHz) on a limited basis
    in 50 cities.[^4] This spectrum was first identified for potential
    reallocation in the 2001 *AWS Further Notice*.[^5] At that time, the
    Commission proposed that, in the event that it reallocated frequency
    bands used by BRS, it would look to the *Emerging Technologies*
    principles by which new entrants were obligated to provide
    incumbents with comparable facilities in order to obtain early
    access to the spectrum.[^6] The BRS Channel 1 and 2A spectrum was
    reallocated in two subsequent proceedings: the *AWS Second R&O*, in
    which the Commission reallocated and designated a five megahertz
    portion of the BRS band at 2150-2155 MHz that is now part of the 90
    megahertz of AWS spectrum that is part of the upcoming Auction No.
    66;[^7] and the *AWS Eighth R&O*, in which the 2155-2160 MHz portion
    of the band was reallocated.[^8]

4.  BRS operations in the 2150-2160/62 MHz band are now regulated under
    Part 27 of our Rules.[^9] In 1992, the Commission implemented a rule
    by which incumbent BRS licensees that were using the 2160‑2162 MHz
    band would continue such use on a primary basis.[^10] However, any
    BRS station that applied for use of this band after January 16,
    1992, would be granted a license only on a secondary basis to
    emerging technology use.[^11] In 1996, the Commission auctioned
    licenses for BRS channels on a Basic Trading Area (BTA) basis but
    noted that BRS channel 2 licenses using the 2160-2162 MHz band were
    secondary to emerging technology licenses.[^12]

5.  On July 29, 2004, the Commission released the *BRS R&O and FNPRM* in
    WT Docket No. 03-66 that initiated a fundamental restructuring of
    BRS operations, including those licensees operating on channels 1
    and 2/2A.[^13] This decision, which was intended to provide existing
    and new licensees with enhanced flexibility to provide high-value
    services in a newly expanded 2496-2690 MHz band, included a revised
    band plan designed to re-accommodate existing BRS licensees in the
    2150-2160/62 MHz band to other frequencies in order to allow these
    licensees to be integrated with similar operations.[^14]
    Specifically*,* the Commission adopted a band plan in which existing
    BRS channel 1 (2150-2156 MHz) would transition to the new BRS
    channel 1 at 2496-2502 MHz and existing BRS channel 2/2A
    (2156-2160/62 MHz) to the new BRS channel 2 at 2618-2624 MHz.[^15]

6.  The 2160-2165 MHz band is currently used in the United States for
    non-Federal Government fixed and mobile services licensed under the
    Miscellaneous Wireless Communications Services in Part 27 of the
    Rules (formerly licensed as the Domestic Public Fixed Radio Services
    in Part 21 of the Rules), the Public Mobile Services under Part 22
    of the Rules, and the Fixed Microwave Services in Part 101 of the
    Rules.[^16] The Commission originally identified the 2160-2165 MHz
    band for new advanced fixed and mobile services in the 1992
    *Emerging Technologies* proceeding and adopted rules and procedures
    to permit new licensees to relocate existing fixed microwave
    services from this spectrum band.[^17] This band was first
    identified as suitable AWS spectrum in 2001, as part of the\
    *AWS Notice*.[^18]

7.  The 2165-2175 MHz band is currently used by commercial and private
    FS licensees. These licensees provide telephone communications,
    communications for industry, and public safety communications.[^19]
    This spectrum had previously been reallocated for 2 GHz MSS
    operations, but, as part of the *AWS Third R&O*, was further
    reallocated to Fixed and Mobile services in order to promote the
    introduction of new advanced services, including AWS.[^20] Because
    MSS operations had not commenced in the band at the time the
    spectrum was reallocated for AWS, and therefore no relocation
    proceedings had been initiated, the legacy FS licensees continue to
    operate in the band. The FS operations in these bands are typically
    configured to provide two-way microwave communications between
    paired links. In this case, the FS links in the 2160-2200 MHz band
    (of which the 2160-2175 MHz band at issue in this decision is a
    subset) are paired with the links in the 2110-2150 MHz band. We note
    that the 2110-2150 MHz band was part of the 90 megahertz reallocated
    for AWS in the *AWS Second R&O*.[^21] In the *AWS Eighth R&O*, the
    Commission designated the 2155-2175 MHz band for AWS use and, as
    indicated above, allocated the 2155-2160 MHz band to Fixed and
    Mobile Services in order to allow the provision of AWS in this
    band.[^22]

8.  Throughout the AWS proceedings, the Commission has examined the
    relocation needs for licensees that occupy reallocated spectrum
    bands and has previously sought comment on the use of the *Emerging
    Technologies* policies for the relocation of these licensees.[^23]
    The relocation policy adopted in the *Emerging Technologies*
    proceeding was designed to allow early entry for new technology
    providers into reallocated spectrum by allowing providers of new
    services to negotiate financial arrangements for the reaccommodation
    of incumbent licensees.[^24] Our relocation policy was also designed
    to allow gradual relocation of incumbents during which, as the new
    entrant deployed individual sites throughout its geographic licensed
    area over time, the new entrant was then obligated to relocate
    incumbent facilities on a link-by-link basis (in the case of
    microwave facilities), based on an interference analysis using
    specified interference criteria.[^25] In addition, under our
    *Emerging Technologies* policy, new entrants were required to
    provide incumbents with comparable replacement facilities that would
    allow them to maintain the same service in terms of three factors:
    throughput, reliability, and operating costs.[^26] Further, our
    policy provided for two stages of negotiations -- a voluntary
    period, followed by a mandatory period -- during which new entrants
    and incumbents were required to negotiate the terms for relocation
    in good faith.[^27] Recent relocation decisions have forgone the
    voluntary stage and instead required only a mandatory negotiation
    period.[^28] If no agreement was reached during negotiations, the
    new entrant was permitted to proceed to the involuntary relocation
    of the incumbent. During the involuntary relocation process, our
    *Emerging Technologies* procedures required new entrants to
    construct, test, and deliver replacement facilities comparable to
    facilities in use by the incumbent at the time of relocation,
    subject to a one year "right of return" (*i.e.,* if after a twelve
    month trial period the new facilities prove not to be comparable to
    the old facilities, the incumbent could return to the old frequency
    band or otherwise be relocated or reimbursed).[^29] Finally, our
    *Emerging Technologies* policy applies a sunset rule to relocations,
    typically a ten year period, after which new entrants are no longer
    obligated to pay relocation expenses to incumbents and may require
    that the incumbent cease operations.[^30]

9.  Most recently, the *AWS Fifth Notice* sought comment on the use of
    the *Emerging Technologies* policies in establishing specific
    relocation procedures that are applicable to BRS operations in the
    2150-2160/62 MHz band, as well as for the relocation of FS
    incumbents in the 2160-2175 MHz band. In the *Order* portion of the
    *AWS Eighth R&O, Fifth Notice and Order*, the Commission required
    that BRS licensees in the 2150-2160/62 MHz band provide information
    on the construction status and operational parameters of each
    incumbent BRS system that would be the subject of relocation.[^31]
    The record developed in response to the *AWS Fifth Notice* and
    *Order*, as well as in the broader AWS docket, provides the basis
    for the relocation procedures we establish in this *Ninth R&O*.

# ninth Report and order

10. In this *Ninth R&O,* we discuss the specific relocation procedures
    that will apply to\
    BRS and FS incumbents in the 2150-2160/62 MHz and 2160-2175 MHz
    bands, respectively.[^32] We\
    also discuss the cost-sharing rules that identify the reimbursement
    obligations for AWS and MSS\
    entrants benefiting from the relocation of incumbent FS operations
    in the 2110-2150 MHz and\
    2160-2200 MHz bands and AWS entrants benefiting from the relocation
    of BRS incumbents in the\
    2150-2160/62 MHz band.

## Relocation of BRS in the 2150-2160/62 MHz Band

11. In the *AWS Fifth Notice,* we proposed to generally apply our
    *Emerging Technologies* policies to the relocation procedures new
    AWS entrants should follow when relocating BRS incumbent licensees
    from the 2150-2160 MHz band.[^33] Comments generally support our
    proposal to use *Emerging Technologies* policies for relocation,
    with modifications to accommodate the incumbents in the band at
    issue.[^34] The Commission has used the *Emerging Technologies*
    policies in establishing relocation schemes for a variety of new
    entrants, such as Personal Communications Services (PCS) licensees,
    MSS licensees, 18 GHz Fixed Satellite Service (FSS) licensees, and
    Sprint Nextel, in frequency bands occupied by different types of
    incumbent operations.[^35] In establishing these relocation schemes,
    the Commission has found that the *Emerging Technologies* relocation
    policies best balance the interest of new licensees seeking early
    entry into their respective bands in order to deploy new
    technologies and services with the need to minimize disruption to
    incumbent operations used to provide service to customers during\
    the transition.

12. BRS operators are providing four categories of service offerings
    today: 1) downstream analog video; 2) downstream digital video; 3)
    downstream digital data; and 4) downstream/upstream digital
    data.[^36] Licensees and lessees have deployed or sought to deploy
    these services via three types of system configurations: high-power
    video stations, high-power fixed two-way systems, and low-power,
    cellularized two-way systems.[^37] Traditionally, BRS licensees were
    authorized to operate within a 35-mile-radius protected service area
    (PSA) and winners of the 1996 MDS auction were authorized to serve
    BTAs consisting of aggregations of counties.[^38] In the proceeding
    that restructured the BRS band at 2496-2690 MHz, the Commission
    adopted a geographic service area (GSA) licensing scheme for
    existing BRS incumbents.[^39] Therefore, BRS relocation procedures
    must take into account the unique circumstances faced by the various
    incumbent operations and the new AWS licensees.

13. As an initial matter, it appears that there are active BRS channel 1
    and/or 2/2A operations throughout the United States, with many
    licensees serving a relatively small customer base of several
    thousand or fewer subscribers each. We draw this conclusion from a
    number of sources of information, including BRS operations data
    submitted to the Commission in response to the *Order* portion of
    the *AWS Eighth R&O, Fifth Notice and Order*, as well as pleadings
    in the record of this proceeding including representations made by
    WCA, an industry group that represents many BRS licensees. In
    response to our request for information to assist in determining the
    scope of AWS entrants' relocation obligations,\
    69 BRS licensees provided information on 127 stations.[^40] An
    examination of this data indicates that BRS operations can be found
    across the United States, in approximately 65 of the 176 U.S.
    Economic Areas.[^41]

14. WCA has estimated that BRS channels 1 and/or 2 are used in 30-50
    markets in the U.S., providing "tens of thousands" of subscribers in
    urban and rural areas with wireless broadband service, and in some
    cases, multichannel video programming service.[^42] While Sprint
    Nextel appears to be the largest licensee with approximately 20,000
    subscribers in 14 markets across the country,[^43] many operators
    have described smaller operations in more discrete geographic areas.
    These include: C&W Enterprises, Inc., using BRS channel 1 and leased
    EBS channels to provide video and data services to approximately
    1,500 subscribers in San Angelo, Texas; Evertek, Inc., using BRS
    channel 1 in Everly, Palmer, and Sioux City, Iowa to provide
    upstream broadband services to more than 1,000 subscribers; Northern
    Wireless Communications providing broadband services on BRS channels
    1 and 2 to approximately 725 subscribers from hub sites located in
    Aberdeen and Redfield, South Dakota, and also providing multichannel
    video programming to approximately 950 subscribers; Polar
    Communications providing broadband services to more than 500
    subscribers from its BRS channels 1 and 2 hub sites located in the
    Grand Forks, North Dakota BTA; Sioux Valley Wireless providing
    wireless broadband and multichannel video services to approximately
    5,800 subscribers, 2,300 of which subscribe to wireless broadband,
    in rural areas in and around Sioux Valley, South Dakota, and
    surrounding communities in South Dakota, Iowa, Nebraska, and
    Minnesota; SpeedNet using BRS channels 1 and 2 for upstream Internet
    provision to approximately 4,000 customers in Alpena, Bad Axe, Mt.
    Pleasant, and Saginaw, Michigan; and W.A.T.C.H. TV providing over
    200 channels of digital video and audio to over 12,000 subscribers
    in and around Lima, Ohio, with more than 5,000 subscribers using BRS
    channels 1 and 2 for upstream\
    wireless broadband.[^44]

15. As we discuss in detail below, we apply our *Emerging Technologies*
    relocation policies, with some modifications to accommodate the type
    of incumbent operations that are the subject of relocation, to BRS
    relocations in the 2150-2160 MHz band. The primary features of the
    relocation policies for BRS are as follows:

-   BRS incumbents will be relocated on a system-by-system basis based
    on potential interference to any BRS receive station hub or any end
    user receiver, depending on system design. A system is comprised of
    a base station with its associated end user units. Interference
    potential will be based on line of sight for co-channel operations.

-   The relocation schedule will be determined by the AWS entrant's
    build-out of its network. AWS licensees may not begin operations
    prior to relocating BRS facilities with which potential interference
    exists.

-   BRS incumbents are entitled to comparable facilities, *i.e*.,
    facilities that maintain throughput, reliability, and operating
    costs of existing facilities, including end user equipment used to
    receive BRS service. Because AWS and BRS licensees are potential
    competitors, BRS licensees do not have to disclose customer
    identities or locations to AWS entrants. Leased facilities may be
    the basis for determining comparable facilities, and licensees may
    include a lessee in negotiations.

-   BRS licensees with primary status are eligible for relocation,
    unless their facilities were not constructed and in use as of the
    effective date of this *Ninth R&O*. BRS facilities that are primary
    are eligible for relocation; however, major modifications made to
    existing facilities and new BRS facilities added after the effective
    date of this *Ninth R&O* are secondary and, although licensees may
    make these modifications, these modifications are not eligible for
    relocation. Major modifications to existing facilities include
    modifications that increase the size or coverage of the service area
    or interference potential and that would also increase the
    throughput of the existing system (*e.g.* sector splits in the
    antenna system); however, BRS licensees will be allowed to make
    changes to existing facilities to fully utilize existing system
    throughput (*i.e.,* to add customers) even if such changes would
    increase the size or coverage of the service area or interference
    potential and these changes will not be treated as major
    modifications.

-   There will be a mandatory three year negotiation period for each BRS
    incumbent which commences when the AWS entrant informs the BRS
    licensee in writing of its intent to negotiate (*i.e.,* "rolling"
    negotiations). The BRS licensee can suspend the running of the
    negotiation period for up to one year if the licensee cannot be
    relocated to comparable facilities at the end of the negotiation
    period. The AWS licensee can trigger involuntary relocation at the
    end of the negotiation period if the parties have not agreed on a
    relocation plan, and for one year after an involuntary relocation,
    BRS licensees will have a "right of return" to the old frequency
    band or otherwise to be relocated or reimbursed.

-   BRS incumbents' primary status will sunset, and licensees will not
    be eligible for relocation, 15 years after the first AWS license is
    issued in the 2150-2160/62 MHz band.

### Relocation Process

16. *Transition Plan.* In the *AWS Fifth Notice,* we proposed to require
    the AWS entrant to relocate BRS operations on a link-by-link basis,
    based on interference potential.[^45] We also proposed to allow the
    AWS entrant to determine its own schedule for relocating incumbent
    BRS operations so long as it relocates incumbent BRS licensees
    before beginning operation in a particular geographic area and
    subject to any other build-out requirements that may be imposed by
    the Commission on the AWS entrant.[^46] We further proposed to
    require that the AWS licensee relocate all incumbent BRS operations
    that would be affected by the new AWS operations, in order to
    provide BRS operators with\
    comparable facilities.[^47]

17. Most commenters argue that because BRS incumbent systems are
    generally point-to-multipoint operations, as opposed to the
    point-to-point incumbent operations that were relocated by PCS
    licensees, relocation of BRS licensees should occur on a
    system-by-system basis, based on interference potential, rather than
    link-by-link (*e.g*., the path from a base station to one customer),
    as the Commission proposed.[^48] According to Verizon and CTIA, a
    "system" includes a radio base station, all end user units served by
    that base station, and the wireless facilities that connect each end
    user unit served by that base station, but does not include multiple
    base stations in a geographic area that comprise an entire
    network.[^49] Other commenters argue that all BRS operations within
    the BRS licensee's GSA (*e.g*., multiple base stations or networks)
    should be relocated, not just the base stations where a
    line-of-sight analysis shows interference potential.[^50]

18. Commenters also note that unlike past relocation scenarios, the new
    AWS entrant is likely to be a competitor to the BRS incumbent.[^51]
    The BRS parties therefore argue that an incumbent should not have to
    disclose proprietary information (*e.g.*, subscriber identities and
    locations) to its competitor or provide access to those subscriber
    locations for the installation of customer premises equipment (CPE);
    should not have to rely on the AWS entrants' timetables to deploy
    service and should be allowed to decide when relocation will occur;
    should be able to control relocation of its facilities by having the
    sole responsibility for selecting equipment and deploying comparable
    facilities; and should be allowed to voluntarily self relocate
    subject to reimbursement from new AWS licensees.[^52] WCA and
    BellSouth argue that self relocation was permitted in the 1.9 GHz
    band microwave relocation to "accelerate the relocation process by
    promoting system-wide relocation \[and\] give microwave incumbents
    the option of avoiding time-consuming negotiations, allowing for
    faster clearing" of the band[^53] and that BRS licensees/lessees
    should similarly be permitted to self relocate subject to
    reimbursement from AWS licensees prior to the conclusion of the
    mandatory negotiation period, using the comparable facilities
    standard for involuntary relocations.[^54] WCA further argues that
    self relocation reduces the disruption to customers because, for
    example, operators who have replacement spectrum available may
    choose to start migration to the new band whenever a routine service
    call is made to the home, without waiting for the completion of the
    mandatory negotiation or involuntary relocation periods.[^55] CTIA
    and T-Mobile contend that, if self relocation is permitted, AWS
    licensees must be afforded protections similar to those provided in
    the PCS relocation process. These protections include limitations on
    the incumbent's reimbursable expenses, such as a cap on
    reimbursement costs and the requirement to obtain a third party
    estimate of relocation costs. [^56] Verizon agrees with the
    Commission's proposal that an AWS licensee should have flexibility
    to determine its relocation schedule; otherwise, Verizon claims,
    there would be significant costs that could impede the introduction
    of AWS in the 2150-2160/62 MHz band.[^57]

19. We anticipate that an AWS licensee will likely use a terrestrial
    network that is comprised of several discrete geographic areas
    served by multiple base stations.[^58] Unlike satellite systems, for
    example, whose signals can blanket the whole country simultaneously,
    the terrestrial nature of an AWS licensee's service allows for the
    gradual relocation of incumbents during a geographically-based
    build-out period. We recognize that this build-out period may take
    time because of the large service areas to be built out for new AWS
    networks, but expect that the AWS licensees and the incumbent BRS
    licensees will work cooperatively to ensure a smooth transition for
    incumbent operations.[^59] Upon review of the concerns raised in the
    record regarding our initial proposal for a link-by-link approach
    for relocation, we are convinced that adopting a "system-by-system"
    basis for relocation, based on potential interference to BRS, will
    better accommodate incumbent BRS operations.[^60] If an analysis
    shows that a BRS incumbent's "system" needs to be relocated, we will
    require that the base station and all end user units served by that
    base station be relocated to comparable facilities.[^61] The
    relocation schedule and criteria to determine interference potential
    are discussed in detail below.[^62]

20. For the reasons discussed below, we reject proposals that would
    allow BRS incumbents to voluntarily self relocate, *i.e.*, to
    unilaterally determine when relocation would occur and to require
    AWS entrants to reimburse BRS incumbents based on a cost estimate
    for comparable facilities that were selected and deployed at the
    discretion of the incumbent without the involvement of and
    negotiation with the AWS licensee.[^63] In our relocation policies,
    we want to maintain a balance between the needs of new entrants and
    incumbent operations. In this case, new entrants and incumbents will
    likely be offering competitive services. Our decision to base BRS
    relocation on the AWS entry timetable and potential interference to
    BRS incumbents provides a bright line that should avoid disputes
    between prospective competitors, *e.g.*, that market entry is being
    unfairly delayed or that entry costs are imposed prematurely which
    could delay AWS build-out of service. We conclude that the diversity
    of incumbent BRS facilities and services makes it difficult to allow
    self relocation based on cost estimates and a cost cap, as some
    commenters suggest. BRS incumbents offer a wide variety of services
    and employ a wide variety of equipment, making it difficult to
    implement a self relocation scheme as was permitted when PCS
    relocated FS incumbents. In the latter case, FS incumbents were
    providing point-to-point service where system configuration and
    relocation costs were well understood and similar enough in each
    situation so as to make rational the types of generalizations that
    are necessary to set caps. Also, to the extent that BRS proponents
    seek self relocation because the transition of the 2.5 GHz band may
    delay relocation to that band, we are providing relief by allowing
    BRS incumbents to continue to add customers[^64] and to suspend for
    up to one year the negotiation period.[^65] As a practical matter,
    we expect a BRS incumbent to take an active role in the actual
    relocation of its facilities, including selecting and deploying
    comparable facilities, but we find that relocation should result
    from AWS-BRS negotiations or the involuntary relocation process
    discussed below. However, we recognize the legitimate concerns
    raised by BRS incumbents regarding the disclosure of their
    proprietary customer information to potential AWS competitors and we
    will not require that AWS entrants be permitted to approach the
    incumbents' customers directly for relocation purposes, whether
    relocation occurs as a result of a negotiated agreement or via
    involuntary relocation. To balance AWS interests with the need to
    minimize disruption to an incumbent's customers, we will not allow
    the AWS entrant to begin operations in a particular geographic area
    until the affected BRS incumbent is relocated (and subject to any
    other build-out requirements that may be imposed by the Commission
    on the AWS entrant).

21. *Comparable Facilities.* Under the *Emerging Technologies* policy,
    the Commission allows new entrants to provide incumbents with
    comparable facilities using any acceptable technology.[^66]
    Incumbents must be provided with replacement facilities that allow
    them to maintain the same service in terms of: (1) throughput -- the
    amount of information transferred within the system in a given
    amount of time; (2) reliability -- the degree to which information
    is transferred accurately and dependably within the system; and (3)
    operating costs -- the cost to operate and maintain the system.[^67]
    Thus, the comparable facilities requirement does not guarantee
    incumbents superior systems at the expense of new entrants.[^68] We
    note that our relocation policies do not dictate that systems be
    relocated to spectrum-based facilities or even to the same amount of
    spectrum as they currently use, only that comparable facilities be
    provided.[^69] Comparable facilities can be provided by upgrading
    equipment to digital technology and making use of efficient
    modulation and coding techniques that use less spectrum to provide
    the same communications capabilities. In the *AWS Fifth Notice*, the
    Commission proposed that if relocation were deemed necessary, BRS
    incumbents with primary status would be entitled to comparable
    facilities, as defined in the *Emerging Technologies* proceeding and
    discussed above, and sought comment on how to apply the comparable
    facilities requirement to unique situations faced by BRS
    licensees.[^70] For example, we sought comment on whether
    replacement of CPE in use at the time of relocation (*e.g.,*
    customer equipment that is used and will continue to be used in the
    provision of two-way broadband operations) should be part of the
    comparable facilities requirement.

22. The majority of commenters support implementation of a comparable
    facilities requirement,[^71] although some commenters request that
    additional criteria be added to the Commission's definition, such as
    costs to install new CPE, not merely the cost of the equipment, and
    internal costs of the incumbent.[^72] In addition, some commenters
    argue that the Commission should use the expanded comparable
    facilities definition it has used when dealing with
    point-to-multipoint incumbent operations in other contexts, such as
    the *800 MHz R&O* (where the factors were: equivalent channel
    capacity; equivalent signal capability, baud rate, and access time;
    coextensive geographic coverage; and operating costs) and the *Upper
    200 MHz Specialized Mobile Radio Second R&O* (where the factors
    were: system; capacity; quality of service; and operating
    costs).[^73] Other commenters claim that comparable facilities
    requires only one acceptable technology solution -- *i.e.*, a
    wireless, not wired solution.[^74] Further, commenters support our
    proposal that only stations with primary status would be entitled to
    relocation.[^75]

23. We continue to believe that the *Emerging Technologies* policy of
    comparable facilities is the best approach to minimize disruption to
    existing services and to minimize the economic impact on licensees
    of those services. Accordingly, we will require that AWS licensees
    provide BRS incumbents with replacement facilities that allow them
    to maintain the same service in terms of: (1) throughput -- the
    amount of information transferred within the system in a given
    amount of time; (2) reliability -- the degree to which information
    is transferred accurately and dependably within the system; and (3)
    operating costs -- the cost to operate and maintain the system.
    However, we agree with commenters that an additional factor for the
    comparable facilities definition is necessary to deal with the
    point-to-multipoint operations of BRS licensees that provide service
    to customers. Thus, in order to minimize disruption to the
    incumbent's customers, we find that the replacement of CPE (*i.e.,*
    end user equipment) in use at the time of relocation and that is
    necessary for the provision of BRS service should be part of the
    comparable facilities requirement.[^76] Further, consistent with our
    *Emerging Technologies* policy, during involuntary relocation, new
    AWS entrants will only be required to provide BRS incumbents with
    enough throughput to satisfy their system use at the time of
    relocation, not to match the overall capacity of the system.[^77]
    Finally, we address the application of our comparable facilities
    requirement to post-1992 licensees operating on a combination of BRS
    channels 1 and 2/2A (*e.g.,* integrated for downstream two-way
    broadband operations), whose operations are likely to transition to
    new channels in the restructured band at different times. In order
    to accommodate these integrated operations with the least disruption
    to customers, we will require the relocation of operations on both
    BRS channels 1 and 2/2A where the BRS licensee is using the same
    facility for both channels in order to provide service to
    customers.[^78]

24. However, for the reasons discussed below, we decline to further
    expand the comparable facilities definition as the parties request
    (*e.g.,* requiring only a wireless solution; using the *800 MHz*
    *proceeding* definition; and including internal administrative costs
    of the incumbent). We reject parties' suggestions that comparable
    facilities requires only a wireless solution. Given advances in
    technology, *e.g.,* changing from analog to digital modulation and
    the flexibility provided by our existing relocation procedures to
    make incumbents whole, we believe that these differences should be
    taken into account when providing comparable facilities. In the *800
    MHz proceeding,* incumbents in the 800 MHz band were being relocated
    within the same band as part of an overall band reconfiguration
    process designed to resolve the interference concerns of public
    safety licensees in the band. Therefore, a comparable facilities
    definition based on equivalent capacity was the better approach in
    the *800 MHz proceeding,* because, for example, the services,
    equipment, and propagation characteristics were not likely to change
    significantly in the newly reconfigured band. Further, the level of
    detail in the comparable facilities definition in the *800 MHz
    proceeding* was necessary to ensure that the costs for relocation
    and reconfiguration were easy to compute and verify since these
    expenses were to be used to calculate the credit due to the U.S.
    Treasury at the end of the 800 MHz transition. In the instant case,
    BRS incumbents are to be relocated to a new band where, for example,
    the equipment and propagation characteristics are different. In
    addition, BRS incumbents, while providing similar broadband
    services, use various technologies (*e.g.*, frequency division
    duplexing (FDD) or time division duplexing (TDD)) to deploy their
    services.[^79] We therefore believe that a more flexible definition
    of comparable facilities is justified in this case. Accordingly, we
    find that the factors we have identified as most important for
    determining comparability (*i.e.,* throughput, reliability,
    operating costs, and now end user equipment) provide the degree of
    flexibility that will better serve the parties during negotiations.
    Finally, consistent with our *Emerging Technologies* policies, we
    will not require that new AWS licensees reimburse BRS incumbents for
    their internal costs for relocation because these costs are
    difficult to determine and verify.[^80]

25. We further note that under our relocation policies only stations
    with primary status are entitled to relocation. Because secondary
    operations, by definition, cannot cause harmful interference to
    primary operations nor claim protection from harmful interference
    from primary operations at frequencies already assigned or assigned
    at a later date,[^81] new entrants are not required to relocate
    secondary operations. As stated above, BRS stations licensed after
    1992 to use the 2160-2162 MHz band operate on a secondary basis.
    Thus, in some cases, a portion of BRS channel 2 has secondary
    status, and this portion would not be entitled to relocation under
    existing *Emerging Technologies* policies. BRS stations licensed
    after 1992 to use the remaining portion of BRS channel 2 (2156-2160
    MHz) operate on a primary basis and thus, would be entitled to
    relocation. Where a station is licensed to operate BRS channel 2 on
    both a primary (at 2156-2160 MHz) and secondary (at 2160-2162 MHz)
    basis, we expect the parties will work together in negotiating
    appropriate compensation for the costs to relocate four megahertz of
    a six megahertz block of spectrum. We note that stations licensed
    prior to 1992 for BRS channel 2 (2156-2162 MHz) operate on a primary
    basis over the entire channel and thus, would be entitled to
    relocation over the entire channel. We therefore adopt our
    relocation policies regarding stations with primary and secondary
    status for the BRS.

26. *Leasing.* Some BRS licensees of channel(s) 1 and/or 2/2A currently
    lease their spectrum capacity to other commercial operators,[^82]
    and the Commission has determined that future leasing of BRS
    spectrum will be allowed under the Secondary Markets policy.[^83]
    Because leasing is prevalent in the BRS bands, the application of
    our "comparable facilities" policy must also account for these
    arrangements. We recognize that leasing arrangements vary -- some
    BRS licensees may continue to lease their spectrum to third parties
    when they relocate to the 2.5 GHz band, but other BRS licensees may
    discontinue leasing arrangements prior to relocation. In all cases,
    the BRS licensee retains *de jure* control of the license and is the
    party entitled to negotiate for "comparable facilities" in the
    relocation band. In the *AWS Fifth Notice,* we sought comment on
    proposals related to the leasing of BRS spectrum. In particular, we
    proposed to allow incumbent BRS licensees to rely on the lessee's
    facilities in negotiating comparable facilities and to include
    lessees in negotiations with the AWS entrant, but that the lessee
    would not be entitled to a separate right of recovery.[^84]

27. While commenters generally support our leasing proposals that would
    allow licensees to include lessees in negotiations and to rely on
    the lessee's facilities in negotiations for comparable facilities,
    but not allow double recovery for licensees and lessees,[^85] some
    commenters request that we provide lessees with additional standing
    independent of the licensee or lessor[^86] or that we require the
    lessee to participate in negotiations.[^87] We conclude that the
    approach we proposed in the *AWS Fifth Notice* is consistent with
    the purpose of the "comparable facilities" policy to provide new
    facilities in the relocation band so that the public continues to
    receive service, and we disagree with commenters who request
    additional protections for or requirements on the lessee. Disputes
    with respect to private leasing agreements between the licensee and
    lessee are best addressed using applicable contractual remedies
    outside the Commission's purview. As noted above, while we recognize
    the benefit of including the lessee in negotiations for comparable
    facilities, we do not believe a requirement for participation is
    necessary. Accordingly, we find that, in cases where the BRS
    licensees continue to lease their spectrum to third parties when
    they relocate to the 2.5 GHz band, the licensee may include the
    lessee in negotiations but lessees would not have a separate right
    of recovery -- *i.e.,* the new entrant would not have to reimburse
    both the licensee and lessee for "comparable facilities."[^88] We
    also adopt our proposal to allow incumbent BRS licensees to rely on
    the throughput, reliability, and operating costs of facilities
    operated by a lessee in negotiating "comparable facilities." BRS
    licensees may also use these same factors for determinations of
    "comparable facilities" during involuntary relocation, except that
    the BRS licensee may only rely on the facilities that are "in use"
    pursuant to 47 C.F.R. § 101.75 by the lessee at the time of
    relocation.[^89] Finally, in cases where the BRS licensee
    discontinues leasing arrangements prior to relocation, the lessee is
    not entitled to recover lost investment from the new AWS
    entrant.[^90]

28. *Licensee Eligibility*. In the *AWS Fifth Notice*, we proposed that
    a primary BRS licensee whose license, prior to relocation, is
    renewed or assigned, or whose control of the license is transferred,
    will continue to be eligible for relocation.[^91] We also proposed
    that no new licenses would be issued in the 2150-2160/62 MHz band if
    a grandfathered BRS license is cancelled or forfeited and does not
    automatically revert to the BRS licensee that holds the
    corresponding BTA license.[^92]

29. Our review of the record shows that commenters support our proposals
    on determining licensee eligibility for relocation.[^93]
    Accordingly, and consistent with our findings in earlier
    proceedings, we now adopt our proposals to apply the relocation
    policies discussed herein to BRS incumbent primary licensees who
    seek comparable facilities at the time of relocation.[^94] Any
    incumbent licensee whose license is renewed before relocation would
    have the right to relocation. An assignment or transfer of control
    would not disqualify a BRS incumbent in the 2150-2160 MHz band from
    relocation eligibility unless, as a result of the assignment or
    transfer of control, the facility is rendered more expensive to
    relocate.[^95] In addition, if a grandfathered BRS license (*i.e.,*
    authorized facilities operating with a 35-mile-radius PSA) is
    cancelled or forfeited, and the right to operate in that area has
    not automatically reverted to the BRS licensee that holds the
    corresponding BTA license, no new licenses would be issued for BTA
    service in the 2150-2160/62 MHz band.[^96] Finally, in the *AWS
    Fifth Notice,* we did not propose, nor do we suggest here, that BRS
    licensees would be entitled to relocation compensation as a
    consequence of reallocating BRS spectrum for other services. We
    note, in particular, that the *Emerging Technologies* relocation
    policies were intended to prevent disruption of existing services
    and minimize the economic impact on licensees of those services.
    Thus, where authorized BRS licensees have not constructed facilities
    and are not operational, there is no need to prevent disruption to
    existing services.[^97] We therefore conclude that BRS licensees
    whose facilities have not been constructed and are in use per
    Section 101.75 of the Commission's rules as of the effective date of
    this *Report and Order* are not eligible for relocation.

30. Under the *Emerging Technologies* policy, the Commission recognizes
    two divergent objectives when considering the types of modifications
    and expansions existing licensees could make to their existing,
    constructed facilities without affecting their status with respect
    to emerging technology licensees -- on one hand, existing licensees
    must be allowed a certain amount of flexibility to operate without
    devaluing the usefulness of their facilities; on the other hand, the
    new entrants must be provided with a stable environment in which to
    plan and implement new services.[^98] The Commission has decided
    that the best way to balance these divergent objectives is to
    establish procedures whereby existing licensees who choose to modify
    or expand their facilities, after a particular date set by the
    Commission, would do so on a secondary basis to new licensees.[^99]
    In the *AWS Fifth Notice*, we proposed to adopt criteria for BRS
    licensees that would be the basis for determining what qualifies as
    a "major modification," *i.e.*, a modification that is relegated to
    secondary status for relocation purposes.[^100] Adopting major
    modification criteria for the purposes of relocation is necessary
    because BRS licensees are now licensed on a geographic area basis,
    and thus are allowed to place transmitters anywhere within their
    defined service area without prior authorization so long as the
    licensee's operations comply with the applicable service rules, do
    not affect radio-frequency zones, or require environmental review or
    international coordination.[^101] Specifically, we proposed to adopt
    criteria that, for example, would classify additions of new transmit
    sites or base stations and changes to existing facilities that would
    increase the size or coverage of the service area or interference
    potential as types of modifications that are major, and thus not
    eligible for relocation.

31. CTIA and Verizon support our proposal to use the effective date of
    this *Report and Order* as a cut-off date after which major
    modifications to the BRS incumbent's facilities would not be
    eligible for relocation.[^102] BRS commenters, on the other hand,
    argue that the cut-off date should be the date, or, alternately,
    ninety days after the date, the AWS entrant provides written notice
    to the BRS licensee of its desire to commence negotiations.[^103]
    Some parties contend that the incumbent should be allowed to
    continue to add subscribers and modify its facilities (such as
    sector splits in the antenna system to increase frequency reuse and
    capacity) until relocation is completed.[^104] Sprint Nextel argues
    that requiring a BRS licensee to discontinue its broadband service
    before new spectrum becomes available or prohibiting it from adding
    new customers to existing BRS service areas would have a material
    adverse effect on the national availability of broadband in the
    United States, and would be inconsistent with Section 706 of the
    Telecommunications Act, which seeks to promote the availability of
    advanced telecommunications services.[^105] Sprint Nextel also
    argues that the Commission's proposed cut-offs for new BRS
    deployments follows the logic for point-to-point systems and not for
    point-to-multipoint systems, where subscribers are affected. It
    claims that in the 1.9 GHz band context, making operations secondary
    did not devalue the usefulness of the existing operations and did
    not unduly constrain operators that wanted to expand their networks,
    but rather excluded just one of the many facility-based deployments
    that operators could choose from.[^106] WCA contends that a ban on
    system modifications or expansions comprises the rights obtained at
    auction of BRS BTA license holders.[^107] With respect to the
    criteria for major modifications, CTIA, Sprint Nextel, and WCA
    suggest that: (1) BRS licensees should not be permitted to add or be
    compensated for the relocation of new hub station receivers (but can
    add customers to already deployed hub station receivers); (2)
    modifications should be permitted where replacement is required as a
    result of a natural disaster or some other event beyond the control
    of the BRS licensee; and (3) BRS licensees who are not actually
    operating systems as of the effective date of the *Report and Order*
    in this proceeding should be precluded from deploying new services
    in the 2150-2160/62 MHz band after that date.[^108]

32. We disagree with commenters who suggest delaying the cut-off for
    relocation eligibility either until, or ninety days after, the date
    the AWS entrant provides written notice of its intent to commence
    negotiations with the BRS incumbent because as we noted above, new
    entrants must be provided with a stable environment in which to plan
    and implement new services. Consistent with our *Emerging
    Technologies* relocation policy and in order to provide some
    certainty to new AWS licensees on the scope of their relocation
    obligation, we generally adopt the proposals for major modifications
    described in the *AWS Fifth Notice.*[^109] Specifically, we find
    that major modifications to BRS systems that are in use, as
    discussed in the next paragraph, made by BRS licensees in the
    2150-2160 MHz band after the effective date of this *Report and
    Order* will not be eligible for relocation. Further, major
    modifications and extensions to BRS systems that are in use, as
    discussed below, will be authorized on a secondary basis to AWS
    systems in the 2150-2160 MHz band after the effective date of this
    *Report and Order*.[^110] In addition, BRS facilities newly
    authorized in the 2150-2160 MHz band after the effective date of
    this *Report and Order* would not be eligible for relocation.[^111]

33. Based on our review of the record, and consistent with *Emerging
    Technologies* principles, we classify the following as types of
    modifications that are major, and thus not eligible for
    relocation: (1) additions of new transmit sites or base stations
    made after the effective date of this *Report and Order*; and (2)
    changes to existing facilities made after the effective date of this
    *Report and Order* that would increase the size or coverage of the
    service area or interference potential and that would also increase
    the throughput of an existing system (*e.g.*, sector splits in the
    antenna system). However, we will allow BRS incumbents to make
    changes to already deployed facilities to fully utilize existing
    system throughput, *i.e.*, to add customers, even if such changes
    would increase the size or coverage of the service area or
    interference potential, and not treat these changes as major
    modifications.[^112] Because relocation of incumbent facilities
    depends on the availability of spectrum in the 2.5 GHz band,
    existing licensees must have some flexibility to continue to provide
    service in their communities, including adding new customers, until
    relocation occurs. On the other hand, new entrants should not be
    required to reimburse a potential competitor for the costs of its
    system expansion. We believe that this approach balances the needs
    of incumbents to continue to provide service with the needs of new
    entrants to have some certainty about relocation expenses.[^113] All
    other modifications would be classified as major and their
    operations authorized on a secondary basis and thus not eligible for
    relocation.[^114] We note that, where a BRS licensee who is
    otherwise eligible for relocation has modified its existing
    facilities in a manner that would be classified as "major" for
    purposes of relocation, that BRS licensee continues to maintain
    primary status (*e.g.*, unless it is classified as secondary for
    other reasons[^115] or until the sunset date[^116]); the major
    modifications themselves are considered secondary and not eligible
    for relocation. Thus, in such cases, the AWS licensee is only
    required to provide comparable facilities for the portions of the
    system that are primary and eligible for relocation.[^117]

34. Because we have already identified relocation spectrum in the
    2496-2690 MHz band (2.5 GHz band) for BRS licensees currently in the
    2150-2160/62 MHz band (2.1 GHz band), we also sought comment in the
    *AWS Fifth Notice* on a proposal whereby the Commission would
    reassign 2.1 GHz BRS licensees, whose facilities have not been
    constructed and are not in use per Section 101.75 of the
    Commission's rules, to their corresponding frequency assignments in
    the 2.5 GHz band as part of the overall BRS transition.[^118]
    Specifically, we proposed to modify the licenses of these 2.1 GHz
    BRS licensees to assign them 2.5 GHz spectrum in the same geographic
    areas covered by their licenses upon the effective date of the
    *Report and Order* in this proceeding.[^119] Under this proposal, no
    subscribers would be harmed by immediately reassigning these
    licensees to the 2.5 GHz band, consistent with our policy. Further,
    these BRS licensees could become proponents in the transition of the
    2.5 GHz band and avoid delay in initiating new service (they would
    be limited in initiating or expanding service in the 2.1 GHz band
    under other proposals put forth in the *AWS Fifth Notice*), and new
    AWS entrants in the 2.1 GHz band could focus their efforts on
    relocating the remaining BRS operations and their subscribers,
    facilitating their ability to clear the band quickly and provide new
    service.

35. Verizon and CTIA generally support the reassignment proposal while
    WCA objects on the basis that BRS licensees would be left in a
    "spectral no man's land" until the market has transitioned because
    they would not be able to use the 2.1 GHz band (since there is no
    longer any underlying license authorizing operation on those
    channels) or the 2.5 GHz band (since the spectrum is allocated to
    others pending transition to the new band plan).[^120] WCA contends
    that offering BRS licensees the ability to act as proponents in the
    2.5 GHz band does not alleviate the problem because the Commission
    has concluded that BRS licensees are authorized to use BRS spectrum
    under the existing 2.1 GHz band plan pending the transition to the
    new band plan at 2.5 GHz.[^121] On the other hand, WCA "agrees that,
    as the FCC auctions new BRS geographic licenses for BTA
    authorizations that have been forfeited since the 1996 initial
    auction, the \[BRS\] auction winner should not have a right to
    relocation, but instead should have an immediate authority to
    operate at 2496-2500 MHz and 2686-2690 MHz pre-transition \[WCA's
    proposed interim band plan\] or 2496-2502 MHz and 2618-2623 MHz
    following transition \[the designated channel plan for BRS 1 and
    2/2A operations in the 2.5 GHz band\]."[^122]

36. Upon consideration of the record, we will not mandate reassignment
    of BRS licensees who have no facilities constructed and in use as of
    the effective date of this *Report and Order*, but we will not
    preclude these BRS incumbents from voluntarily seeking such
    reassignment from the Commission. Thus, these BRS licensees will not
    be forced to exchange their existing license in the 2.1 GHz band for
    an updated license authorizing operation in the 2.5 GHz band upon
    the effective date of this *Report and Order* because their
    corresponding channel assignments in the 2.5 GHz band may be
    unavailable for use pending the transition to the new band plan. We
    will instead afford these BRS licensees the flexibility to seek the
    reassignment of their licenses to their corresponding frequencies in
    the 2.5 GHz band at a time that is most convenient (*e.g.*, when the
    transition for their geographic area is complete). However, as noted
    above, BRS licensees who have no facilities constructed and in use
    as of the effective date of this *Report and Order* are not entitled
    to relocation to comparable facilities, regardless of whether they
    initiated operations under an existing (2.1 GHz band) or reassigned
    (2.5 GHz band) license.

### Negotiation Periods/Relocation Schedule

37. Under our *Emerging Technologies* policies, there are two periods of
    negotiations -- one voluntary and one mandatory -- between new
    entrants and incumbents for the relocation of incumbent operations,
    followed by the involuntary relocation of incumbents by new entrants
    where no agreement is reached.[^123] In the *AWS Fifth Notice*, we
    generally proposed to require that negotiations for relocation of
    BRS operations be conducted in accordance with our *Emerging
    Technologies* policies, except that we proposed to forego a
    voluntary negotiation period and instead require only a mandatory
    negotiation period that must expire before an emerging technology
    licensee could proceed to request involuntary relocation.[^124] We
    recognized that the new band where the BRS incumbents are to be
    relocated is undergoing its own transition process that may not be
    completed until at least 2008.[^125] In light of these
    considerations, we proposed to forego a voluntary negotiation period
    and institute "rolling" mandatory negotiation periods (*i.e.,*
    separate, individually triggered negotiation periods for each BRS
    licensee) of three years followed by the involuntary relocation of
    BRS incumbents.[^126] We also proposed that the mandatory
    negotiation period would be triggered for each BRS licensee when an
    AWS licensee informs the BRS licensee in writing of its desire to
    negotiate. If no agreement is reached during negotiations, the
    Commission proposed that an AWS licensee may proceed to involuntary
    relocation of the incumbent. In such a case, the new AWS licensee
    must guarantee payment of all relocation expenses, and must
    construct, test, and deliver to the incumbent comparable replacement
    facilities consistent with *Emerging Technologies* procedures.[^127]
    We noted that under *Emerging Technologies* principles, an AWS
    licensee would not be required to pay incumbents for internal
    resources devoted to the relocation process or for fees that cannot
    be legitimately tied to the provision of comparable facilities,
    because such expenses are difficult to determine and verify.[^128]
    Finally, we sought comment on whether to apply a "right of return"
    policy to AWS/BRS relocation negotiations similar to rule 47 C.F.R.
    § 101.75(d) (*i.e.,* if after a 12 month trial period, the new
    facilities prove not to be comparable to the old facilities, the BRS
    licensee could return to the old frequency band or otherwise be
    relocated or reimbursed).[^129]

38. The record generally supports our negotiation proposals.[^130]
    However, BellSouth argues that both AWS entrants and BRS incumbents
    should be able to trigger the three year mandatory negotiation
    period.[^131] In addition, Sprint Nextel argues that a BRS incumbent
    should not be required to relocate until the 2.5 GHz band transition
    is completed in the market at issue.[^132] Finally, commenters were
    split on whether to apply a "right of return."[^133]

39. Based on our review of the record, we will continue to generally
    follow our *Emerging Technologies* policies for negotiations and
    adopt our proposal to forego a voluntary negotiation period and
    establish "rolling" mandatory negotiation periods (*i.e.,* separate,
    individually triggered negotiation periods for each BRS licensee) of
    three years followed by an involuntary relocation period during
    which the AWS entrant may involuntarily relocate the BRS incumbents.
    Under our *Emerging Technologies* policies, the mandatory
    negotiation period is intended as a period of negotiation between
    the parties on relocation terms resulting in a contractual
    relocation agreement.[^134] The mandatory negotiation period ensures
    that an incumbent licensee will not be faced with a sudden or
    unexpected demand for involuntary relocation if an emerging
    technology provider initiates its relocation request to obtain early
    entry to the reallocated spectrum, and provides adequate time to
    prepare for relocation. During mandatory negotiations, the parties
    are afforded flexibility in the process except that an incumbent
    licensee may not refuse to negotiate and all parties are required to
    negotiate in good faith.[^135] Each mandatory negotiation period
    would be triggered for each BRS licensee when an AWS licensee
    informs the BRS licensee in writing of its desire to negotiate. The
    new 2.5 GHz band where the BRS incumbents are to be relocated is
    undergoing its own transition process that may not be completed for
    several years. Thus, we will allow the BRS licensees to suspend the
    running of the three year negotiation period for up to one year if
    the BRS licensee cannot be relocated to comparable facilities at the
    time the AWS licensee seeks entry into the incumbent's GSA, *i.e*.,
    if the BRS licensee's spectrum in the 2.5 GHz band is not yet
    available because of the 2.5 GHz band transition. We find that, in
    this unique circumstance, providing the BRS incumbent with an
    additional year to negotiate before an AWS licensee can invoke
    involuntary relocation sufficiently accounts for any delay in the
    availability of the BRS licensee's designated relocation spectrum in
    the 2.5 GHz band, without unduly burdening the AWS licensee's entry
    into the\
    2.1 GHz band.

40. If no agreement is reached during negotiations, an AWS licensee may
    proceed to involuntary relocation of the incumbent. During
    involuntary relocation, the new AWS licensee must guarantee payment
    of all relocation expenses necessary to provide comparable
    replacement facilities. Consistent with our *Emerging Technologies*
    principles, an AWS licensee would not be required to pay incumbents
    for internal resources devoted to the relocation process or for fees
    that cannot be legitimately tied to the provision of comparable
    facilities, because such expenses are difficult to determine and
    verify.[^136] In addition, an AWS entrant must ensure that the BRS
    incumbent's spectrum in the 2.5 GHz band is available for the market
    at issue (or an alternate location, *e.g.*, a temporary location in
    the 2.5 GHz band, for the provision of comparable facilities) prior
    to relocating that incumbent.[^137] This approach is generally
    consistent with *Emerging Technologies* procedures for involuntary
    relocation, except that, because AWS entrants and BRS incumbents are
    potential competitors, we must include special provisions to protect
    the BRS licensees' legitimate commercial interests. Accordingly, BRS
    incumbents cannot be required to disclose subscriber location
    information so that AWS licensees would be able to construct, test,
    and deliver replacement facilities to the incumbent and will have to
    take a much more active role in the deployment of comparable
    facilities in an involuntary relocation than has typically been the
    case under previous applications of the *Emerging Technologies*
    policies.[^138] In order to ensure that all parties are acting in
    good faith while simultaneously protecting BRS licensees' legitimate
    commercial interests, we will permit AWS licensees to request that
    the BRS incumbent verify the accuracy of its subscriber counts by,
    for example, requesting a one-to-one return or exchange of existing
    end user equipment.

41. Finally, we find that a "right of return" policy is appropriate
    here. Under *Emerging Technologies* policies, the purpose of a right
    of return is to ensure that incumbents have a full opportunity to
    operate their new systems under real-world operating conditions and
    to obtain redress from the AWS licensee if the new facilities are
    not comparable.[^139] The right of return therefore resides with the
    incumbent as a function of our relocation rules, not with the AWS
    entrant, as alleged by some commenters. Accordingly, we will apply a
    "right of return" policy to AWS/BRS involuntary relocations only --
    if one year after relocation, the new facilities prove not to be
    comparable to the old facilities, the AWS licensee must remedy the
    defects by reimbursement or pay to relocate the BRS licensee to its
    former frequency band or other comparable facility (until the sunset
    date).[^140]

42. *Sunset Date.* In the *AWS Fifth Notice,* we proposed to apply the
    sunset rule of 47 C.F.R. § 101.79 to BRS relocation
    negotiations.[^141] This sunset rule provides that new licensees are
    not required to pay relocation expenses after ten years following
    the start of the negotiation period for relocation. We also proposed
    that the ten year sunset date commence from the date the first AWS
    license is issued in the 2150-2160 MHz band.[^142] The *AWS Fifth
    Notice* then sought comment on how a sunset rule should be applied
    to take into account the nuances affecting the relocation of BRS
    incumbents from the 2150-2160 MHz band (*e.g.,* whether we should
    establish multiple sunset dates or a single sunset date for the
    entire band since portions of the band will be made available for
    auction at different times).[^143]

43. CTIA contends that a single sunset date is more appropriate than
    multiple sunset periods.[^144] Sprint Nextel and CTIA claim that a
    ten year sunset period is insufficient and instead argue that the
    sunset date should correspond to the initial license term, *i.e.*,
    fifteen years, of the AWS licensee.[^145] BRS commenters argue that
    the AWS licensee's relocation obligation should not sunset, or
    alternately, the Commission should require that all BRS operations
    (channels 1 and 2/2A) in the 2150-2160/62 MHz band be relocated by
    AWS entrants to the 2.5 GHz band by a specific date, *i.e.,* a
    "relocation deadline" of either ten or fifteen years.[^146] They
    argue that because AWS licensees have a fifteen year initial license
    term to demonstrate substantial service (*i.e.*, twenty percent of
    population in its service area served), it is likely that the AWS
    licensee may not deploy in many areas, especially rural areas,
    within a ten year or even a fifteen year sunset period.[^147]
    Therefore, they propose that the Commission establish a relocation
    deadline, as it did in the *800 MHz proceeding*, and require AWS
    entrants to relocate all BRS incumbents in the 2.1 GHz band within
    ten years following the grant of the first AWS license.[^148]

44. We disagree with commenters who argue that no sunset date should be
    applied or that a relocation deadline of either ten or fifteen years
    is more appropriate. Because our *Emerging Technologies* principles
    are intended to allow new licensees early entry into the band and
    are not designed as open-ended mechanisms for providing relocation
    compensation to displaced incumbents, it would be inconsistent with
    those principles to eliminate the sunset date. We continue to
    believe that the sunset date is a vital component of the *Emerging
    Technologies* relocation principles because it provides a measure of
    certainty for new technology licensees, while giving incumbents time
    to prepare for the eventuality of moving to another frequency
    band.[^149] Further, the unique circumstances, *i.e.*, reconfiguring
    and transitioning the 800 MHz band to alleviate unacceptable
    interference to public safety operations in the band, that required
    setting a relocation deadline for clearing incumbent operations in
    the *800 MHz proceeding* are not present here. However, as noted
    above, we recognize that the 2.5 GHz band, where the BRS incumbents
    are to be relocated, is undergoing its own transition process and
    that relocation of existing 2.5 GHz operations may not be completed
    for several years. Also, because portions of the spectrum in the
    2150-2160/62 MHz band will be made available for AWS auction at
    different times, *i.e.,* spectrum now occupied by part of BRS
    channel 1 (2150-2155 MHz) will be licensed in an upcoming auction of
    the 2110-2155 MHz band, while spectrum occupied by BRS channels 2
    and 2A and the upper one megahertz of BRS channel 1 (2155-2160/62
    MHz) will be licensed at a later date, the entry of AWS licensees
    into the entire band will occur at different times.[^150] To account
    for these unique circumstances, we believe that additional time
    before the AWS entrant's relocation obligation ends may be
    warranted. We therefore adopt a single sunset date of fifteen years,
    commencing from the date the first AWS license is issued in the
    2150-2160 MHz band, after which new AWS licensees are not required
    to pay for BRS relocation expenses.

45. *Good Faith Requirement.* We expect the parties involved in the
    replacement of BRS equipment to negotiate in good faith, that is,
    each party would be required to provide information to the other
    that is reasonably necessary to facilitate the relocation process.
    Among the factors relevant to a good-faith determination are: (1)
    whether the party responsible for paying the cost of band
    reconfiguration has made a *bona fide* offer to relocate the
    incumbent to comparable facilities; (2) the steps the parties have
    taken to determine the actual cost of relocation to comparable
    facilities; and (3) whether either party has unreasonably withheld
    information essential to the accurate estimation of relocation costs
    and procedures requested by the other party.[^151] The record
    generally supports a good faith requirement[^152] and we therefore
    adopt our proposal to apply the good faith guidelines of 47 C.F.R. §
    101.73 to BRS negotiations. In addition, we note that our
    cost-sharing rules require the AWS relocator to obtain a third party
    appraisal of relocation costs, which, in turn, would require the
    appraiser to have access to the BRS incumbent's system prior to
    relocation. Accordingly, we will require that a BRS incumbent
    cooperate with an AWS licensee's request to provide access to the
    facilities to be relocated, other than subscribers' end user
    equipment, so that an independent third party can examine the system
    and prepare an appraisal of the costs to relocate the incumbent to
    comparable facilities.

### Interference Issues/Technical Standards

46. Under Section 24.237 of our Rules, PCS licensees operating in the
    1850-1990 MHz band and AWS licensees operating in the 2110-2155 MHz
    band must, prior to commencing operations, perform certain
    engineering analyses to ensure that their proposed operations do not
    cause interference to incumbent fixed microwave services. Part of
    that evaluation calls for the use of Telecommunications Industry
    Association Telecommunications Systems Bulletin 10-F (TIA TSB 10-F)
    or its successor standard.[^153] In the *AWS Fifth Notice*, we
    sought comment on whether a rule comparable to Section 24.237 in our
    rules should be developed that could be used to determine whether
    proposed AWS operations would cause interference to incumbent BRS
    systems operating in the 2150-2160 MHz band and, if so, what
    procedures and mechanisms such a rule should contain (*e.g.*, a
    "distance" table, such as Table 2 in Section 24.237 of our Rules,
    which identifies the distance from an AWS station within which a BRS
    station must be protected; the use of TIA TSB 10-F, or some
    comparable document, to determine when interference to BRS stations
    is expected to occur, *etc.*).[^154] We asked commenters to provide
    information that could be used to develop criteria applicable to BRS
    operations, and to indicate whether and how TIA TSB 10-F could be
    used to determine the potential for interference to BRS systems.
    Alternatively, we asked those not favoring the use of a Section
    24.237-type rule to specify procedures we could adopt to enable AWS
    licensees to determine whether their operations would cause
    interference to incumbent BRS systems.[^155]

47. Commenters generally oppose the idea of using a Section 24.237-type
    rule or TIA TSB 10‑F to determine whether an AWS entrant would
    interfere with a BRS incumbent's system. Sprint Nextel and WCA
    contend that the point-to-point methodology contained in the
    analysis methods we proposed would be impracticable to apply to
    point-to-multipoint BRS systems, and CTIA contends that TIA TSB 10-F
    would not adequately address the interference potential of AWS
    entrants to BRS incumbents.[^156]

48. A number of parties, including Sprint Nextel, WCA, and CTIA, propose
    that an AWS licensee that wants to deploy within line of sight of a
    BRS receive station hub (the parties define this geographic area as
    a "relocation zone") be required to relocate the BRS system and the
    customers served by that system.[^157] This technique simply
    determines whether an AWS facility's transmit antenna can 'see' a
    BRS receive site. Sprint Nextel and WCA contend that the relocation
    zone approach is an appropriate interference analysis technique
    because an AWS base station that proposes to operate on any channel
    within line of sight of a centralized BRS channel 1 and/or 2/2A
    receive station hub would interfere with the BRS receive station hub
    as a result of the AWS signal exceeding the noise floor of the BRS
    receiver.[^158] Sprint Nextel also believes that drawing a
    relocation zone around the centralized BRS channel 1 and 2 receive
    station offers a reliable and simple means of triggering new AWS
    entrants' relocation obligations.[^159] CTIA believes that the
    "bright-line" test for protection of BRS systems that the relocation
    zone proposal would provide is essential for an efficient transition
    and would facilitate the rapid roll-out of advanced services by
    allowing new entrants to quickly determine where they are free to
    deploy, while also providing new entrants the certainty they need to
    develop AWS deployment plans.[^160]

49. Sprint Nextel and WCA note that the Commission previously developed
    a detailed technical explanation of how to conduct a line-of-sight
    analysis from a centralized BRS response station hub as part of the
    decision to permit two-way broadband services in the 2500-2690 MHz
    BRS/EBS band, and they ask us to look to this approach to determine
    potential AWS interference to a BRS receive station hub.[^161] In
    the case of those BRS licensees (and their lessees) that use the
    2150-60/62 MHz band for the downstream transmission of video
    programming to subscribers' households, WCA also proposes requiring
    any AWS licensee that intends to operate within line of sight of
    such a BRS licensee's GSA to commence mandatory negotiations with
    the BRS licensee, and notes that such an approach would recognize
    that a subscriber could be located anywhere in the BRS licensee's
    GSA.[^162] To determine whether a proposed AWS system has line of
    sight to a BRS licensee's GSA, WCA proposes, and BellSouth supports,
    using the methodology that was formerly codified in Section
    21.902(f)(5)(2004) of the Commission's rules and that was previously
    used as part of conducting an interference analysis for BRS and EBS
    licensees.[^163] Sprint Nextel suggests a slightly different
    approach in which the relocation zone would be based on a predicted
    area where AWS mobile receivers may experience harmful interference
    from a BRS transmitter[^164] WCA objects to using this relocation
    criteria, stating that because interference will occur at subscriber
    locations, BRS downstream video licensees have been authorized to
    serve subscribers at any location within the GSA, and they have
    traditionally received protection within the entire GSA, the test
    should be based on line of sight into a BRS GSA.[^165]

50. T-Mobile expresses concerns that the use of a line-of-sight test to
    decide whether an AWS system will interfere with a BRS system may
    overestimate the potential interference from new AWS operations to
    incumbent BRS systems and recommends using a model "more based on
    real-world interference effects." It nevertheless recognizes that a
    line-of-sight test offers a measure of certainty and administrative
    convenience that should expedite the relocation and cost-sharing
    processes and which "greatly outweighs the over inclusive nature of
    such a methodology."[^166] To the extent that we adopt the
    line-of-sight test embodied in the relocation zone proposal,
    T-Mobile asks us to specify a particular model for determining line
    of sight, as well as any other variable inputs into such a
    determination, in order to remove any ambiguity as to whether or not
    a threshold condition has been met.[^167] US Cellular also expresses
    concerns that extension of the line-of-sight test to all new AWS
    entrants -- especially to those that are not co-channel to BRS --
    could cause a significant delay in the commencement of service over
    the entire 2110-2155 MHz AWS spectrum band.[^168]

51. As an initial matter, we conclude that relocation zones are
    appropriate for assessing the interference potential between new
    co-channel AWS entrants' operations and existing BRS facilities. In
    addition to being supported by many commenters, the line-of-sight
    approach embodied in the relocation zone approach will draw on the
    established methodology that was formerly set out in Part 21 of our
    Rules, as well as previous Commission decisions regarding the BRS
    and EBS,[^169] and will provide an easy-to-implement calculation
    that will afford new AWS entrants some certainty in planning new
    systems. Similarly, as Sprint Nextel notes, this approach will
    permit new AWS entrants to readily identify those areas that fall
    outside a relocation zone and in which they can rapidly deploy
    services without first having to relocate incumbent BRS
    operations.[^170] We note that this approach is narrowly tailored
    insofar as each relocation zone will be unique to the geography and
    system characteristics of a particular BRS receive site.[^171] To
    the extent that a relocation zone may require an AWS entrant to
    relocate some BRS systems that would not receive actual harmful
    interference, we agree with those commenters who assert that the
    administrative ease realized by implementing the relocation zone's
    "bright-line test" will serve to promote the rapid deployment of new
    AWS operations by eliminating complex and time consuming site-based
    analyses, and outweighs any disadvantages associated with any over
    inclusiveness.

52. To determine whether a proposed AWS base station will have line of
    sight to a BRS receive station hub, we will require AWS entrants
    that propose to implement co-channel operations in the BRS band
    (*i.e.*, AWS licensees using the upper five megahertz of channel
    block F -- or the 2150-2155 MHz portion of the 2145-2155 MHz block,
    or the 2155-2162 MHz portion of the 2155-2175 MHz band) to use the
    methodology the Commission developed for licensees to employ when
    conducting interference studies from and to two-way MDS/ITFS
    systems.[^172] This methodology, which was widely supported by
    commenters and has been successfully used by the Commission in the
    past, provides a detailed technical explanation of precisely how to
    conduct a line-of-sight analysis from a base station transmitter
    that accounts for topology.[^173] Where the AWS entrant has
    determined that its station falls within the relocation zone under
    this methodology, then the AWS entrant must first relocate the
    co-channel BRS system that consists of that hub and associated
    subscribers before the AWS entrant may begin operation. In the
    particular case of an incumbent BRS licensee that uses channel(s) 1
    and/or 2/2A for the delivery of video programming to subscribers, we
    recognize that the relocation zone approach will need to operate in
    a slightly different manner because potential interference from the
    AWS licensee would occur at the subscriber's location instead of at
    a BRS receive station hub.[^174] In order to provide interference
    protection to subscribers in a manner that does not require
    disclosure of sensitive customer data, and to recognize that these
    BRS licensees may add subscribers anywhere within their licensed
    GSA, the most appropriate method to ascertain whether interference
    could occur to BRS systems providing one-way video delivery in
    channels 1 and/or 2/2A is to determine whether the AWS base station
    has line of sight to a co-channel BRS incumbent's GSA.[^175] To make
    this determination, we will require co-channel AWS entrants to use
    the methodology that was formerly codified in Section
    21.902(f)(5)(2004) of the Commission's rules.[^176] This methodology
    is also supported by commenters and has been widely used by BRS and
    EBS licensees to ascertain whether a new entrant's proposed station
    will have line of sight to a BRS incumbent's GSA.[^177] Because our
    relocation rules serve to protect incumbent BRS operations -- and by
    extension, the subscribers of BRS video systems -- from harmful
    interference caused by AWS licensees seeking early entry into the
    band, we conclude that the approach suggested by WCA and BellSouth
    best serves these interests because it will assure that all
    subscribers within a GSA are protected from harmful interference.

53. Although the relocation zone approach is well suited for new
    entrants that propose to implement co-channel operations in the BRS
    band, we conclude that simply using a line-of-sight methodology for
    determining the relocation obligations of adjacent channel (*e.g.*,
    AWS licensees using the lower five megahertz of channel block F --
    or the 2145-2150 MHz portion of the 2145-2155 MHz block) and
    non-adjacent channel AWS licensees (*e.g.*, AWS licensees using
    channel blocks A-E, from 2110-2145 MHz), is not appropriate.[^178]
    In this situation, such AWS operations will not pose a large enough
    potential for interference to BRS incumbent licensees to warrant an
    automatic relocation obligation without first determining whether
    harmful interference to BRS will actually occur. There are a number
    of factors (*e.g.*, desired and undesired received signal levels,
    BRS receiving antenna angular and polarization discrimination,
    *etc.*) besides just having a line-of-sight path to a BRS receiver
    and a signal which exceeds the BRS receiver's noise floor that
    typically have been used in determining whether a new entrant will
    cause interference to an existing BRS station, and we conclude that
    we cannot discount these elements here.[^179] For example, signal
    attenuation due to antenna directionality can mean that two stations
    can be within the line of sight of each other without causing
    harmful interference. For these reasons, we specifically reject the
    contention that any AWS base station in the 2.1 GHz band that
    proposes to operate within line of sight of a centralized BRS
    channel 1 and/or 2/2A receive station hub will always interfere with
    the BRS receive station hub.[^180] Similarly, we do not believe that
    the potential for AWS intermodulation (*i.e.* interference caused
    when multiple signals from different frequency bands combine to
    create harmful interference in a particular frequency band -- the
    band in which BRS operations are located, in this instance) or AWS
    cross-modulation (interference caused by the modulation of the
    carrier of a desired signal by an undesired signal) is so severe
    that either situation warrants special treatment.[^181] For example,
    if there is only one AWS entrant operating on one non-adjacent
    channel within line of sight of a BRS system, co-channel and/or
    adjacent channel intermodulation products are not likely to occur.

54. Together, these factors lead us to conclude that a line-of-sight
    test for AWS entrants operating outside the 2150-2160/62 MHz band
    would be much more over inclusive than the application of such a
    test to in-band operations. We also find merit in the concerns
    expressed by US Cellular that expanding the scope of the relocation
    zone to encompass all AWS entrants could severely delay the
    deployment of valuable new AWS applications throughout the entire
    2110-2155 MHz band, and conclude that the lost benefits associated
    with delayed AWS deployment would be significant.[^182] Also, as a
    practical matter, determining whether an AWS entrant on an adjacent
    or non-adjacent channel will cause interference to an incumbent BRS
    station -- particularly in the case of intermodulation -- will
    necessarily be a complex matter potentially involving multiple AWS
    licensees and the BRS licensee, making the "bright line" test
    envisioned by the relocation zone particularly ill fitting. For
    these reasons, we conclude that we can best protect incumbent
    operations while not unduly restraining the ability of new entrants
    to rapidly deploy services in the band by not implementing a
    relocation zone for AWS entrants in the 2110-2150 MHz band or in the
    2160/62-2175 MHz band, as applicable. We emphasize, however, that if
    any AWS system -- regardless of where within the 2110-2175 MHz band
    -- causes actual and demonstrable interference to a BRS system, then
    the AWS licensee is responsible for taking the necessary steps to
    eliminate the harmful interference, up to and including relocation
    of the BRS licensee.[^183]

## Relocation of FS in the 2160-2175 MHz Band

55. In the *AWS Fifth Notice*, we discussed how our *Emerging
    Technologies* relocation principles have been applied to past
    relocation decisions for AWS bands, and sought comment on the
    appropriate relocation procedures to adopt for FS incumbents in the
    2160-2175 MHz band.[^184] As originally adopted, our relocation
    procedures incorporated a voluntary period during which parties
    could negotiate relocation terms, but were under no obligation to do
    so. A mandatory negotiation period then followed, during which the
    incumbent licensee and new entrant were required to negotiate in
    good faith. If no relocation agreement had been reached after that
    period, the new entrant was free to involuntarily relocate the
    incumbent licensee, under the procedures outlined in the
    Rules.[^185] In the *AWS Second R&O*, the Commission applied a
    modified version of these *Emerging Technologies* relocation
    procedures to the 2110-2150 MHz band.[^186] Under these procedures,
    which were first adopted in ET Docket No. 95-18 for FS incumbents in
    the 2165-2200 MHz band, the Commission eliminated the voluntary
    negotiation period for relocation of FS incumbents by MSS in the
    2165-2200 MHz band.[^187] In addition, the Commission decided that a
    single mandatory negotiation period for the band would be triggered
    when the first MSS licensee informs, in writing, the first FS
    incumbent of its desire to negotiate.[^188] More recently, in the
    *AWS Sixth R&O*, the Commission concluded that, consistent with its
    decision in the *AWS Second R&O*, it would be appropriate to apply
    the same procedures to the relocation of FS by AWS licensees in the
    2175-2180 MHz paired band.[^189]

56. We proposed to adopt a single mandatory negotiation period that
    would commence when the first new technology entrant informs the
    first FS licensee, in writing, of its desire to negotiate. We also
    sought comment as to whether a separate, individually triggered
    negotiation period for each incumbent licensee should be implemented
    in the band and, if so, whether such a 'rolling' negotiation
    approach should be adopted for the 2110-2150 MHz and 2175-2180 MHz
    bands in order to provide for a unified approach across the bands.
    We observed that one potential benefit of a rolling negotiation
    period approach is that it could afford a greater opportunity for FS
    incumbents and AWS licensees to engage in relocation negotiations
    and could promote a more equitable transition to AWS in the band,
    although we also noted that such an approach might result in more
    complex relocation timetables.[^190] Finally, we proposed to adopt a
    ten-year sunset period to be triggered when the first AWS license is
    issued in the band, and asked whether and how we should harmonize
    existing relocation rules for Part 22 point-to-point microwave links
    and Part 101 fixed services.[^191]

57. Commenters generally support our proposal to draw on existing
    relocation procedures for the 2160-2175 MHz band. For example, CTIA
    asserts that FS relocation from the 2160-2175 MHz band should be
    largely based on the procedures established for the relocation of
    incumbents in the 1.9 GHz band by PCS entrants.[^192] It claims, for
    example, that the voluntary negotiation period has in the past been
    used to unduly delay relocations, and supports our proposal to
    forego the voluntary negotiation period and allow parties to
    immediately initiate mandatory negotiations.[^193] Comsearch is
    opposed to rolling negotiation periods, contending that having
    different timeframes in different portions of the band is "complex
    and borderline unworkable," and will make relocation issues more
    complex from the perspective of the incumbent licensees.[^194]
    Instead, Comsearch suggests that the negotiation period should start
    from the date the first license is issued for a given block.[^195]

58. The Commission's relocation policies were first adopted to promote
    the rapid introduction of new technologies into bands hosting
    incumbent FS licensees. Thus, we continue to believe, as a general
    matter, that the *Emerging Technologies* relocation procedures are
    particularly well suited for this band. Our review of the historic
    and current applications of our relocation procedures leads us to
    adopt the following: we will forgo the voluntary negotiation period
    and instead adopt a mandatory negotiation period to be followed by
    the right of the AWS licensee to trigger involuntary relocation
    procedures. Such an approach is consistent with recent relocation
    decisions, and we agree with commenters that the voluntary
    negotiation period may unduly hinder the deployment of valuable new
    AWS applications. We also adopt, as proposed, a ten-year sunset
    period for the 2160-2175 MHz band that will be triggered when the
    first AWS licensee is issued in the band. The sunset date is vital
    for establishing a date certain by which incumbent operations become
    secondary in the band, and the date the first license is issued will
    be both easy to determine and well known among licensees and
    incumbents in the band.[^196]

59. We will also adopt 'rolling' negotiation periods, as proposed in the
    *AWS Fifth Notice*. Under this approach, a mandatory negotiation
    period will be triggered when an AWS licensee informs a FS licensee,
    in writing, of its desire to negotiate for the relocation of a
    specific FS facility. The result will be a series of independent
    mandatory negotiation periods, each specific to individual incumbent
    FS facilities. We conclude that this approach best serves both
    incumbent licensees and new AWS entrants, and is consistent with the
    process that was successfully employed for the relocation of FS
    incumbents by PCS entrants.[^197] As several commenters note, AWS
    deployment in the band is likely to take place over an extended time
    period, as new licensees gradually build out facilities within their
    licensed geographic areas. If we were to establish a single
    mandatory negotiation period that ended for all licensees on the
    same day, new entrants that were not ready to deploy services would
    likely have no incentive to engage in negotiations with incumbent
    licensees during the mandatory negotiation period. The AWS licensees
    would instead likely invoke involuntary relocation procedures at the
    time they were actually ready to deploy service. Such an outcome
    would prevent many incumbent licensees from participating in the
    negotiation aspect of our relocation process, and would likely
    result in sudden or unexpected demands for relocation to be placed
    on them. We do not see how such a result serves the public interest
    or maintains the balance of equities built into the relocation
    process. While we recognize the complexities inherent in this
    approach discussed by Comsearch, we conclude that a rolling
    negotiation policy is the preferable approach because it will
    encourage relocations based on negotiated agreements and will
    minimize surprise or hardship for incumbent licensees.[^198]
    Because, under this approach, a mandatory negotiation period could
    be triggered such that it would still be in effect at the sunset
    date, we further clarify that the sunset date shall supersede and
    terminate any remaining mandatory negotiation period that had not
    been triggered or had not yet run its course.

60. Because we are adopting a modified version of our relocation rules
    for the 2160-2175 MHz band, we will similarly modify our relocation
    procedures for the 2110-2150 MHz and 2175-2180 MHz bands to
    establish individually triggered mandatory negotiation periods and
    to modify the sunset date to be ten years after the first AWS
    license is issued in each band.[^199] In the *AWS Fifth Notice*, we
    observed that it is desirable to harmonize the FS relocation
    procedures among the various AWS designated bands to the greatest
    extent feasible, because doing so "can be expected to foster a more
    efficient rollout of AWS and minimize confusion among the parties,
    and thereby serves the public interest."[^200] Harmonization is
    particularly significant in this instance, because the nature of FS\
    operations may require the relocation of paired microwave links in
    the 2110-2150 MHz and 2160-2200 MHz bands.[^201]

61. We also sought comment on how best to harmonize the separate
    relocation rules that currently exist for point-to-point microwave
    links under Parts 22 and 101 and that have diverged over time.[^202]
    The *AWS Fifth Notice* described how, when the Commission determined
    that FS incumbents in the 2.1 GHz band would be subject to modified
    relocation procedures, the modifications were reflected in the Part
    101 relocation rules but inadvertently not included in the Part 22
    rules, although Part 22 point-to-point services also operated in the
    2.1 GHz spectrum. In addition, we noted that the Commission recently
    determined that it would not renew the Part 22 point-to-point
    licenses in the 2110-2130 and 2160-2180 MHz bands, but instead allow
    all current Part 22 fixed service licenses in these bands to expire
    at the end of their current term.[^203] Citing the benefits of
    consistent regulatory treatment among similar services, Comsearch
    and CTIA support application of the relocation rules contained in
    Part 101 to the relocation of Part 22 FS licensees by new AWS
    entrants the 2110-2130 MHz and 2160-2180 MHz bands.[^204]

62. Thus, we adopt our proposal to apply the most current *Emerging
    Technologies* relocation procedures to Part 22 licensees, and will
    modify Part 22 to align the relocation procedures in Part 101 to the
    AWS relocation of Part 22 FS licensees in the 2110-2130 MHz and
    2160-2180 MHz bands. We reject, however, CTIA's request that we
    should not allow Part 101 licensees to renew their licenses, as is
    currently the case for Part 22 FS licensees.[^205] We did not
    propose to prohibit Part 101 licensees from renewing their licenses,
    and an evaluation of whether the rationale for not renewing Part 22
    FS licenses should be applied to Part 101 licenses in order to
    promote consistent regulatory treatment is beyond the record and
    scope of this proceeding. We do note, however, that all FS licenses
    operating in reallocated bands, regardless of whether they are
    licensed under Part 22 or Part 101, remain subject to the applicable
    relocation procedures in effect for the band, including the sunset
    date at which existing operations become secondary to new entrants.
    We also note that, pursuant to Section 553(b)(B) of the
    Administrative Procedure Act, we are amending our relocation rules
    for FS licensees to delete references to outdated
    requirements.[^206]

63. Finally, we clarify that our decision to set forth the appropriate
    relocation procedures that new AWS entrants will follow when
    relocating FS incumbents in the 2160-2175 MHz band does not
    substitute for the establishment of service rules for the band (or a
    larger spectrum block that encompasses this band).[^207] We continue
    to anticipate the issuance of a separate Notice of Proposed
    Rulemaking that will examine specific licensing and service rules
    that will be applicable to new AWS entrants in the band.

## Cost-sharing

64. In 1996, the Commission adopted a plan to allocate cost-sharing
    obligations stemming from the relocation of incumbent FS facilities
    then operating in the 1850-1990 MHz band (1.9 GHz band) by new
    broadband PCS licensees.[^208] This cost-sharing regime created a
    process by which PCS entities that incurred costs for relocating
    microwave links could receive reimbursement for a portion of those
    costs from other PCS entities that also benefit from the spectrum
    clearance. In the *Microwave Cost Sharing* proceeding, the
    Commission stated that the adoption of a cost-sharing regime serves
    the public interest because it (1) distributes relocation costs more
    equitably among the beneficiaries of the relocation; (2) encourages
    the simultaneous relocation of multi-link communications systems;
    and (3) accelerates the relocation process, promoting more rapid
    deployment of new services.[^209] In this section, we discuss the
    adoption of cost-sharing rules to identify the reimbursement
    obligations for AWS and MSS entrants benefiting from the relocation
    of incumbent FS operations in the 2110-2150 MHz and 2160-2200 MHz
    bands and AWS entrants benefiting from the relocation of BRS
    incumbents in the 2150-2160/62 MHz band.

### Relocation of Incumbent FS Licensees in the 2110-2150 MHz and 2160-2200 MHz Bands

65. Currently, FS incumbents operate microwave links in the 2110-2150
    MHz and 2160-2200 MHz bands, mostly composed of paired channels in
    the lower and upper bands (*i.e.*, 2110-2130 MHz with 2160-2180 MHz
    and 2130-2150 MHz with 2180-2200 MHz). Section 101.82 of the
    Commission's Part 101 relocation rules provides that when a new
    licensee in either of these bands relocates an incumbent paired FS
    link with one path in the 2110-2150 MHz band and the paired path in
    the 2160-2200 MHz band, the new licensee is entitled to
    reimbursement of fifty percent of its relocation costs from any
    subsequently entering new licensee which would have been required to
    relocate the same FS link, subject to a monetary "cap."[^210] The
    *AWS Fifth Notice* explained that this rule applied to both new AWS
    licensees in the 2110-2150 MHz and 2160-2180 MHz bands, as well as
    to MSS licensees in the 2180-2200 MHz band.[^211] We discuss AWS and
    MSS issues separately, below.

#### Cost Sharing between AWS Licensees

66. *Background.* In the *AWS-2 Service Rules NPRM*, the Commission
    sought comment on whether it should adopt formal procedures for
    apportioning relocation costs among multiple AWS licensees in the
    2110-2150 MHz and 2175-2180 MHz bands and, in particular, whether it
    should apply the cost-sharing rules in Part 24 that were used by new
    PCS licensees when they relocated incumbent FS links in the
    1850-1990 MHz band.[^212] In the *AWS Fifth Notice*, the Commission
    sought comment on the same issues in the 2160-2175 MHz band[^213]
    and whether AWS licensees in the 2160-2175 MHz band should be
    subject to the same cost-sharing regime as it adopts to govern the
    relocation of FS incumbents in the 2110-2150 MHz and 2175-2180 MHz
    bands.[^214]

67. In the *AWS Fifth Notice,* the Commission explained the details of
    how the Part 24 cost-sharing plan operated in the context of the
    relocation of FS microwave links from the 1.9 GHz band by PCS
    entrants.[^215] Under the Part 24 plan, new entrants that incurred
    costs relocating an FS link were eligible to receive reimbursement
    from other entrants that also benefited from that relocation.[^216]
    Relocators could submit their reimbursement claims to one of the
    private not-for-profit clearinghouses designated by the Wireless
    Telecommunications Bureau ("WTB") to administer the plan.[^217]
    Specifically, new entrants filing a prior coordination notice
    (PCN)[^218] were also required to submit their PCN to the
    clearinghouse(s) before beginning operations.[^219] After receiving
    the PCN, a clearinghouse with a reimbursement claim on file
    determined whether the new entrant benefited from the relevant
    relocation using a Proximity Threshold Test.[^220] Under the
    Proximity Threshold Test, a new entrant triggered cost-sharing
    obligations for a microwave link if all or part of the microwave
    link was initially co-channel with the PCS band(s) of any PCS
    entrant, a PCS relocator had paid to relocate the link, and the new
    PCS entrant was prepared to start operating a base station within a
    specified geographic distance of the relocated link.[^221] The
    clearinghouse then used the cost-sharing formula specified in
    Section 24.243 of the Commission's Rules to calculate the amount of
    the beneficiary's reimbursement obligation.[^222] This amount was
    subject to a cap of \$250,000 per relocated link, plus \$150,000 if
    a new or modified tower was required.[^223] The beneficiary was
    required to pay reimbursement within 30 days of notification, with
    an equal share of the total going to each entrant that previously
    contributed to the relocation.[^224] Payment obligations and
    reimbursement rights under the Part 24 cost-sharing plan can be
    superceded by a privately negotiated cost-sharing arrangement
    between licensees.[^225]

68. Disputes over cost-sharing obligations under the rules were
    addressed, in the first instance, by the clearinghouse.[^226] If the
    clearinghouse was unable to resolve the dispute, parties were
    encouraged to pursue alternative dispute resolution (ADR)
    alternatives such as binding arbitration.[^227]

69. In the *AWS Fifth Notice,* the Commission explained that adopting
    the Part 24 cost-sharing plan for AWS entrants that relocate FS
    incumbents would have many benefits.[^228] The Commission therefore
    proposed to adopt a cost-sharing plan for relocation of FS
    incumbents in the 2160-2175 MHz band based on the Part 24 plan and
    sought comment on this proposal.[^229] In addition, the Commission
    also noted that it had sought comment on whether it should adopt the
    Part 24 plan to apportion relocation costs among multiple AWS
    licensees in the 2110-2150 MHz and 2175-2180 MHz bands.[^230]
    Although the Commission recognized that Part 24 rules could be
    applied to the relocation of FS incumbents in the 2.1 GHz band
    without substantial changes, the *AWS Fifth Notice* nevertheless
    sought comment on whether some modifications to the Part 24
    cost-sharing rules were appropriate, including specific changes
    suggested by PCIA in response to the *AWS-2 Service Rules
    NPRM*.[^231] The Commission also sought comment on the procedures
    and qualifications criteria that should be used to select one or
    more private not-for-profit clearinghouses to administer the
    cost-sharing rules.[^232] In addition, the Commission sought comment
    on the rules that should govern the operation of the
    clearinghouse(s).[^233]

70. *Comments.* Most commenting parties support the adoption of the Part
    24 cost-sharing framework for AWS entrants that benefit from the
    relocation of FS incumbents in the 2.1 GHz band.[^234] Several
    commenters, however, request that the Commission clarify specific
    aspects of the Part 24 cost-sharing rules.[^235] For example,
    T-Mobile and PCIA urge the Commission to provide further certainty
    to relocating entities regarding what costs are compensable under
    Section 24.243(b) of the Commission's Rules.[^236] A few commenting
    parties also propose specific modifications to the Part 24
    clearinghouse rules. T-Mobile, for example, suggests that the
    Commission modify the rules pertaining to link registrations and
    site filings with the clearinghouse to promote efficient resolution
    of cost-sharing claims.[^237] In particular, T-Mobile proposes that
    the Commission adopt a blanket rule requiring all entities
    constructing new sites or modifying existing sites to file site data
    in the form of a PCN with the clearinghouse and that the Commission
    also impose a continuing obligation on those entities to maintain
    the accuracy of the data on file with the clearinghouse.[^238]
    Similarly, PCIA states that all licensees should be required to file
    data with the clearinghouse for all construction sites within 30
    days of turning on any fixed base station at commercial power.[^239]
    According to PCIA and T-Mobile, such a rule is necessary to address
    past instances where the Part 24 clearinghouse experienced
    difficulties obtaining PCN data from licensees that conducted their
    own interference studies to support their contention that, even
    though they fell within the Proximity Threshold Box, they
    nevertheless were not required to file PCNs with the clearinghouse
    because the links they would have interfered with had already been
    relocated.[^240]

71. PCIA and T-Mobile contend that the presence of a new entrant's site
    within the Proximity Threshold Box, regardless of the potential for
    actual interference, should trigger a cost-sharing obligation.[^241]
    T-Mobile and PCIA believe this policy should apply regardless of
    whether the site actually pre-dated the relocation because the new
    entrant will nevertheless benefit from the subsequent
    relocation.[^242] According to PCIA, if a new entrant operates in a
    manner protecting an existing incumbent and the incumbent is then
    relocated, the pre-existing new entrant still benefits from the
    relocation and cost sharing is therefore appropriate.[^243] In
    addition, PCIA and T-Mobile propose that the Commission clarify that
    a new entrant only may trigger a cost-sharing obligation for a
    relocated link once per license, regardless of the size of the
    license.[^244] PCIA also asks the Commission to adopt a rule stating
    that, once triggered, deconstruction of a site does not relieve an
    entity of cost-sharing requirements -- an obligation, once
    triggered, can not be "de-triggered."[^245] However, PCIA does
    suggest that the Commission allow, in cases of bankruptcy or
    disputes, subsequent triggers to reduce their liabilities to other
    cost-sharing participants by "paying around" a prior trigger.[^246]

72. PCIA and T-Mobile both contend that relocating entities should not
    be required to file link registrations within 10 days of
    relocation[^247] because the depreciation factor that is calculated
    into the Part 24 cost-sharing formula[^248] provides them with a
    market incentive to promptly register to minimize the amount of
    deprecation that would otherwise accrue with the passage of
    time.[^249] In addition, PCIA and T-Mobile argue that the Commission
    should not require a clearinghouse to maintain all documentary
    evidence.[^250] Rather, PCIA and T-Mobile propose that the
    Commission require carriers to provide only uniform cost data at the
    time of filing with the clearinghouse, with supporting documentation
    to be made available to subsequent triggers upon request.[^251]

73. In addition, PCIA and T-Mobile request that the Commission establish
    certain procedures to govern those instances where disagreements
    arise over cost-sharing obligations. Specifically, PCIA proposes
    that the Commission define what constitutes "good faith" in the
    context of cost sharing, especially where an entrant that
    subsequently triggers a cost-sharing obligation complains that the
    initial party that undertook the relocation overpaid.[^252]
    According to PCIA, the Commission should also explicitly state in
    the rules that a clearinghouse has the authority to order the
    payment of a cost-sharing amount from one entity to another.[^253]
    To discourage disputes designed to defer cost-sharing payments,
    T-Mobile asks the Commission to approve the charging of interest on
    cost-sharing obligations starting 60 days after the invoice
    date.[^254] Moreover, both PCIA and T-Mobile propose that the
    Commission adopt a procedure to issue expedited rule interpretations
    in the event that cost sharing and relocation disputes arise.[^255]
    PCIA argues that an expedited procedure would avoid lengthy
    disputes.[^256] PCIA therefore contends that the Commission should
    establish a process whereby a clearinghouse will be able to refer a
    question of interpretation to the Commission and promptly receive a
    public response, thereby lessening the potential for disputes.[^257]

74. *Discussion.* We believe that adopting rules based on the Part 24
    cost-sharing plan for AWS entrants that benefit from the relocation
    of FS incumbents by other AWS entrants would accelerate the
    relocation process and promote rapid deployment of new advanced
    wireless services in the 2.1 GHz band. In the *AWS Fifth Notice*,
    the Commission noted that the Part 24 plan was devised to
    accommodate new cellular type systems licensed by geographic areas
    and incumbent FS point-to-point operations.[^258] The relocation of
    FS by AWS licensees presents very similar circumstances; further,
    the Part 24 plan has a proven record of success.[^259] Moreover, the
    Commission has recognized that refinements to the details of the
    plan, made in response to numerous questions that have been
    addressed since the Part 24 plan's inception in 1996, reduce the
    likelihood that further clarification will be necessary if the
    Commission adopts this regime for new AWS entrants.[^260] For these
    reasons, the Commission explained in the *AWS Fifth Notice* that it
    expected the adoption of these rules to expedite the relocation of
    FS incumbents and the introduction of new services.[^261] We
    continue to believe that adopting the Part 24 cost-sharing rules,
    with minor modifications, serves the public interest because it will
    distribute relocation costs more equitably among the beneficiaries
    of the relocation, encourage the simultaneous relocation of
    multi-link communications systems, and accelerate the relocation
    process, thereby promoting more rapid deployment of new services.

75. We also find substantial support in the record for applying a
    cost-sharing framework for AWS in the 2.1 GHz band that is based
    upon the Part 24 plan used for Broadband PCS.[^262] In the *AWS
    Fifth Notice,* the Commission emphasized that "it is desirable to
    harmonize the FS relocation procedures among the various AWS
    designated bands to the greatest extent feasible."[^263] The
    Commission specifically noted that relocation procedures that are
    consistent throughout the band can be expected to foster a more
    efficient rollout of AWS and minimize confusion among the parties,
    and thereby serve the public interest.[^264] After thoroughly
    reviewing the record,[^265] we conclude that the Commission should
    apply the Part 24 cost-sharing rules, as herein modified, to the
    instant relocation of FS incumbents by AWS entrants in the 2.1 GHz
    band. We also incorporate the Part 24 cost-sharing provisions for
    voluntary self-relocating FS incumbents to obtain reimbursement from
    those AWS licensees benefiting from the self-relocation.[^266]
    Incumbent participation will provide FS incumbents in the 2.1 GHz
    band with the flexibility to relocate themselves and the right to
    obtain reimbursement of their relocation costs, adjusted by
    depreciation, up to the reimbursement cap, from new AWS entrants in
    the band.[^267]  We also find that incumbent participation will
    accelerate the relocation process by promoting system wide
    relocations and result in faster clearing of the 2.1 GHz band,
    thereby expediting the deployment of new advanced wireless services
    to the public.[^268]  Therefore, we will require AWS licensees in
    the 2.1 GHz band to reimburse FS incumbents that voluntarily
    self-relocate from the 2110-2150 MHz and 2160-2200 MHz bands and AWS
    licensees will be entitled to *pro rata* cost sharing from other AWS
    licensees that also benefited from the self-relocation. Accordingly,
    subject to the clarifications and modifications explained below, we
    adopt rules in Appendix A based on the formal cost-sharing
    procedures codified in Part 24 of our rules to apportion relocation
    costs among AWS licensees in the 2110-2150 MHz, 2160-2175 MHz, and
    2175-2180 MHz bands.[^269]

76. As noted above, we find that the record in this proceeding warrants
    certain modifications to the Part 24 cost-sharing plan that we
    believe will help distribute cost-sharing obligations equitably
    among the beneficiaries of the relocation and also encourage and
    accelerate the relocation process. Specifically, with respect to
    cost-sharing obligations on MSS operators for FS incumbent
    self-relocation in the 2180-2200 MHz band, we recognize that the
    Commission previously declined to impose cost sharing on MSS
    operators for voluntary self-relocation by FS incumbents in that
    band.[^270] Accordingly, for FS incumbents that elect to
    self-relocate their paired channels in the 2130-2150 MHz and
    2180-2200 MHz bands (with AWS in the lower band and MSS in the upper
    band), we will impose cost-sharing obligations on AWS licensees but
    not on MSS operators. Where a voluntarily relocating microwave
    incumbent relocates a paired microwave link with paths in the
    2130-2150 MHz and 2180-2200 MHz bands, it is entitled to partial
    reimbursement from the first AWS beneficiary, equal to fifty percent
    of its actual costs for relocating the paired link, or half of the
    reimbursement cap, whichever is less. This amount is subject to
    depreciation. For purposes of applying the cost-sharing formula
    relative to other AWS licensees that benefit from the
    self-relocation, the fifty percent attributable to the AWS entrant
    shall be treated as the entire cost of the link relocation,[^271]
    and depreciation shall run from the date on which the clearinghouse
    issues the notice of an obligation to reimburse the voluntarily
    relocating microwave incumbent.

77. We also decline commenters' suggestion[^272] that we eliminate in
    its entirety the Part 24 requirement that a relocator or
    self-relocating microwave incumbent file documentation of its
    relocation agreement or discontinuance of service to the
    clearinghouse. We believe that continuing to require relocators or
    self-relocators to submit such documentation within a certain time
    period expedites the reimbursement process. We do, however, believe
    that extending the deadline for such filings from 10 business days
    to 30 calendar days reasonably balances the concerns raised by
    commenters and the Commission's goal of expediting the clearing of
    the 2.1 GHz band.[^273] We will, therefore, require AWS relocators
    in the 2.1 GHz band to file their reimbursement requests with the
    clearinghouse within 30 calendar days of the date the relocator
    signs a relocation agreement with an incumbent. Consistent with the
    Part 24 approach of imposing the same obligations on self-relocators
    seeking reimbursement that apply to relocators,[^274] we will also
    require self-relocating microwave incumbents in the 2.1 GHz band to
    file their reimbursement requests with the clearinghouse within 30
    calendar days of the date that they submit their notice of service
    discontinuance with the Commission.

78. We will also require all AWS licensees in the 2.1 GHz band that are
    constructing a new site or modifying an existing site to file
    site-specific data with the clearinghouse prior to initiating
    operations for a new or modified site.[^275] The site data must
    provide a detailed description of the proposed site's spectral
    frequency use and geographic location.[^276] We will also impose a
    continuing duty on those entities to maintain the accuracy of the
    data on file with the clearinghouse. We find that such an approach
    will ensure fairness in the process and preclude new AWS entrants
    from conducting independent interference studies for the purpose or
    effect of evading the requirement to file site-specific data with
    the clearinghouse prior to initiating operations.[^277]

79. Utilizing the site-specific data submitted by AWS licensees, the
    clearinghouse determines the cost-sharing obligations of each AWS
    entrant by applying the Proximity Threshold Test.[^278] We find that
    the presence of an AWS entrant's site within the Proximity Threshold
    Box, regardless of whether it predates or postdates relocation of
    the incumbent, and regardless of the potential for actual
    interference, will trigger a cost-sharing obligation.[^279]
    Accordingly, any AWS entrant that engineers around the FS incumbent
    will trigger a cost-sharing obligation once relocation of the FS
    incumbent occurs.[^280] We recognize that the Proximity Threshold
    Test may limit a licensee's ability to engineer around the
    transmission of the former microwave link to avoid relocation
    reimbursement obligations.[^281] However, we reiterate that the
    benefits that the Proximity Threshold Test provides in terms of ease
    of administration outweigh any burden that use of the test will
    impose on other entrants that are required to share in the
    relocation costs.[^282] The Proximity Threshold Test is a
    bright-line test that does not require extensive engineering studies
    or analyses, and it yields consistent, predictable results by
    eliminating the variations -- and thus disputes -- which can be
    associated with the use of interference standards such as the TIA
    TSB 10-F.[^283] We find that the use of such a bright-line test in
    this context will expedite the relocation process by facilitating
    cost-sharing, minimizing the possibility of disputes that may arise
    through the use of other standards or tests, and encouraging new
    entrants to relocate incumbent licensees in the first instance.

80. We agree with commenting parties and adopt a rule that precludes
    entrants that have triggered a cost-sharing obligation, pursuant to
    the rules adopted herein, from avoiding that obligation by
    deconstructing or modifying their facilities.[^284] We find that
    such a policy will promote the goals of this proceeding and
    encourage the relocation of incumbents. Moreover, it will
    significantly reduce the possibility of disagreements over cost
    sharing among entrants, thereby expediting the entire process and
    affording all entrants a level playing field with respect to their
    business expectations. We do not find, however, that the record in
    this proceeding demonstrates a need to specifically incorporate the
    phrase "one trigger-one license" into the triggering language of
    Section 24.243 of the Commission's Rules. The rule already
    explicitly states that the *pro rata* reimbursement formula is based
    on the number of entities that would have interfered with the link
    and we do not find that further clarification is required.[^285]

81. We also fail to find sufficient support in the record for PCIA's
    contention that we should allow, in cases of bankruptcy or disputes,
    subsequent triggers to reduce their liabilities to other
    cost-sharing participants by "paying around" a prior trigger.[^286]
    Similarly, we reject T-Mobile's proposal that the Commission
    explicitly approve the charging of interest on cost-sharing
    obligations starting 60 days after the invoice date.[^287] We do not
    believe that the record supports this request. We also decline to
    adopt a rule that explicitly states, as suggested by PCIA,[^288]
    that a clearinghouse has the authority to order the payment of a
    cost-sharing amount from one entity to another.[^289] Rather, we
    intend to use the full realm of enforcement mechanisms available to
    us to ensure that reimbursement obligations are satisfied.[^290] In
    response to T-Mobile's inquiry regarding the proper method of
    accounting for recurring charges in reimbursement claims, we clarify
    that, even if the compensation to the incumbent is in the form of a
    commitment to pay five years of charges, the relocator is entitled
    to seek immediate reimbursement of the present value lump sum
    amount, provided it has entered into a legally binding agreement to
    pay the charges.[^291] The relocator may not seek reimbursement of
    the present value of future charges that it is not contractually
    bound to pay.

82. Consistent with precedent,[^292] we establish a specific date on
    which the cost-sharing plans that we adopt here will sunset. We find
    that the sunset date for cost sharing purposes is the date on which
    the relocation obligation for the subject band terminates.[^293] We
    realize that the sunset dates for the 2110-2150 MHz, 2160-2175 MHz,
    2175-2180 MHz bands may vary among the bands.[^294] However, we find
    that establishing sunset dates for cost sharing purposes that are
    commensurate with the sunset date for AWS relocation obligations in
    each band appropriately balances the interests of all affected
    parties and ensures the equitable distribution of costs among those
    entrants benefiting from the relocations. We reiterate, however,
    that AWS entrants that trigger[^295] a cost-sharing obligation prior
    to the sunset date must satisfy their payment obligation in full.

83. Under Part 24, WTB has delegated authority to assign the
    administration of the cost-sharing rules to one or more private
    not-for-profit clearinghouses.[^296] As the Commission noted in the
    *AWS Fifth Notice,* management of the Part 24 cost-sharing rules by
    third-party clearinghouses has been highly successful.[^297] Indeed,
    the *AWS Fifth Notice* recognized that two commenters on the *AWS-2
    Service Rules NPRM* have already expressed interest in becoming
    clearinghouses for the AWS relocation of FS incumbents in the
    2110-2150 MHz and 2175-2180 MHz bands.[^298] We therefore adopt the
    Part 24 clearinghouse rules and delegate to WTB the authority to
    select one or more entities to create and administer a neutral,
    not-for-profit clearinghouse to administer the cost-sharing plan for
    the FS incumbents in the 2.1 GHz band. The selection criteria will
    be established by WTB. WTB shall issue a Public Notice announcing
    the criteria and soliciting proposals from qualified parties. Once
    WTB is in receipt of such proposals, and the opportunity for public
    comment on such proposals has elapsed, WTB will make its selection.
    When WTB designates an administrator for the cost-sharing plan, it
    shall announce the effective date of the cost-sharing rules.

84. We will continue to require participants in the cost-sharing plan to
    submit their disputes to the clearinghouse for resolution in the
    first instance. Where parties are unable to resolve their issues
    before the clearinghouse, parties are encouraged to use expedited
    ADR procedures, such as binding arbitration, mediation, or other ADR
    techniques.[^299] We decline, however, to institute the procedures
    suggested by some commenting parties[^300] that would permit the
    clearinghouse to refer requests for declaratory rulings and policy
    interpretations to the Commission for expedited consideration
    because we are not convinced that a special procedure is warranted.
    We do, however, agree with PCIA and T-Mobile that a clearinghouse
    should not be required to maintain all documentary evidence.[^301]
    Except for the independent third party appraisal of the compensable
    relocation costs for a voluntarily relocating microwave
    incumbent[^302] and documentation of the relocation agreement or
    discontinuance of service required for a relocator or
    self-relocator's reimbursement claim,[^303] both of which must be
    submitted in their entirety, we will require participants in the
    cost-sharing plan to only provide the uniform cost data requested by
    the clearinghouse subject to the continuing requirements that
    relocators and self-relocators maintain documentation of
    cost-related issues until the sunset date and provide such
    documentation, upon request, to the clearinghouse, the Commission,
    or entrants that trigger a cost-sharing obligation. In addition, we
    will also require that parties of interest contesting the
    clearinghouse's determination of specific cost-sharing obligations
    must provide evidentiary support to demonstrate that their
    calculation is reasonable and made in good faith. Specifically,
    these parties are expected to exercise due diligence to obtain the
    information necessary to prepare an independent estimate of the
    relocation costs in question and to file the independent estimate
    and supporting documentation with the clearinghouse.[^304]

85. We reject PCIA's contention that the Commission should specifically
    define what constitutes "good faith" in the context of cost
    sharing.[^305] New entrants and incumbent licensees are expected to
    act in good faith in all matters relating to the cost-sharing
    process herein established. Although the Commission has generally
    required "good faith" in the context of parties' participation in
    negotiations,[^306] self-relocating incumbents benefit through their
    participation in the cost-sharing regime and therefore are expected
    to act in good faith in seeking reimbursement for recoverable costs
    in accordance with the Commission's Rules. We find that the question
    of whether a particular party was acting in good faith is best
    addressed on a case-by-case basis. By retaining sufficient
    flexibility to craft an appropriate remedy for a given violation in
    light of the particular circumstances at hand,[^307] we can ensure
    that any party who violates our good faith requirements, either by
    acting in bad faith or by filing frivolous or harassing claims of
    violations, will suffer sufficient penalties to outweigh any
    advantage it hoped to gain by its violation.[^308]

#### Cost Sharing Triggers and Clearinghouse for AWS, MSS/ATC

86. *Background.* Mobile-Satellite Service (MSS) is allocated to the
    2180-2200 MHz band. FS links in this band are paired with FS links
    in the 2130-2150 MHz band, which is designated for AWS. Cost sharing
    between MSS and AWS licensees in these paired bands is governed by
    section 101.82. This rule provides that when a new licensee in
    either of these bands relocates an incumbent paired FS link with one
    path in one band and the paired path in the other band, the new
    licensee is entitled to reimbursement of fifty percent of its
    relocation costs (*i.e*., the total cost of relocating both paths)
    subject to a monetary "cap," from any subsequently entering new
    licensee that would have been required to relocate the same FS
    link.[^309]

87. The Commission adopted relocation rules for MSS that recognize the
    unique characteristics of a satellite service. For example, unlike a
    new terrestrial entrant such as AWS that can clear the band on a
    link-by-link basis, MSS (space-to-Earth) must clear all incumbent FS
    operations in the 2180-2200 MHz band within the satellite service
    area if interference will occur.[^310] Thus, the relocation
    obligations and cost sharing among MSS new entrants in the 2180-2200
    MHz are relatively straightforward and can function without a
    clearinghouse or formal cost-sharing procedures.[^311]

88. In the *AWS Fifth Notice*, the Commission noted that Section 101.82
    establishes a cost-sharing obligation between MSS and AWS that is
    reasonable and relatively easy to implement, and because it does not
    depreciate cost-sharing obligations, it provides MSS licensees with
    additional assurance of cost recovery. Furthermore, the Commission
    stated that it did not wish to change the relocation and
    cost-sharing rules applicable to MSS, because MSS licensees are
    currently in the midst of the implementation and relocation process.
    The Commission also sought comment on whether MSS entrants entitled
    to reimbursement under Section 101.82 should submit their
    reimbursement claims to an AWS clearinghouse, including any
    procedures adopted for filing such claims.[^312] The Commission
    believed that this approach would relieve MSS licensees of the
    burden of identifying the AWS licensees who would be obligated to
    pay relocation costs, and sought comment on this proposal.

89. *Comments.* Most commenters support using a neutral clearinghouse to
    facilitate reimbursement of MSS ancillary terrestrial component
    (ATC) base stations[^313] and AWS operators that relocate incumbent
    FS licensees, although TMI/Terrestar state that MSS operators should
    have the right (but not the obligation) to obtain reimbursement
    through the clearinghouse arrangement.[^314] PCIA agrees with
    TMI/Terrestar that MSS operators should retain the right to
    negotiate their own agreements for reimbursement with AWS licensees
    or other incumbents.[^315] TMI/TerreStar also note that Section
    101.82 does not expressly refer to ATC and asks us to make clear in
    the rules that MSS is entitled to cost sharing for microwave links
    that are relocated for ATC operations.[^316] TMI/TerreStar add that
    if a clearinghouse will resolve MSS-AWS and AWS-AWS reimbursement
    claims, then the Commission should delegate the task of selecting a
    clearinghouse jointly to the International Bureau (which licenses
    MSS) and to the WTB (which licenses AWS).[^317] In addition,
    TMI/TerreStar suggest that we require the clearinghouse to publish
    all of its policy and procedures on the Internet, subject to
    appropriate security provisions, to ensure neutrality and
    transparency.[^318] According to TMI/TerreStar, any
    clearinghouse-based reimbursement option should be available to MSS
    operators for as long as needed, *i.e.*, should not sunset until at
    least January 1, 2015, because incumbent microwave licensees in the
    2180-2200 MHz band will be co-primary until December 2013, and the
    need to relocate incumbent microwave links may not be known until
    MSS begins operating across the full MSS downlink band.[^319]

90. Commenters that specifically address cost-sharing procedures in the
    context of MSS also recommend using the Part 24 cost-sharing
    procedures instead of Section 101.82. Comsearch, PCIA,
    TMI/TerreStar, and T-Mobile state that the Part 24 Proximity
    Threshold Test should be used for determining when a later-entering
    AWS or ATC licensee is obliged to reimburse an AWS, ATC, or MSS
    (space station) licensee which has previously relocated a
    terrestrial microwave facility.[^320] According to T-Mobile, the
    "benefits in terms of administrative ease for a licensee (or
    cost-sharing clearinghouse) vastly outweigh the marginal inclusion
    or exclusion of particular facilities under a bright line test
    versus an actual \[predicted\] interference test" under Section
    101.82.[^321]

91. Several commenters offer additional suggestions that focus on the
    MSS cost-sharing obligation to AWS. PCIA proposes that cost sharing
    should be triggered for all previously relocated co-channel links
    when MSS initiates downlink operations.[^322] PCIA also asks us to
    make clear in Section 101.82 that microwave licensees may
    self-relocate and obtain reimbursement if an emerging technology
    (ET) licensee later triggers the former link.[^323] Comsearch avers
    that Section 101.82 does not contemplate the possibility that more
    than two licensees may be required to relocate a fixed microwave
    link whereas the Part 24 cost-sharing regime includes a cost-sharing
    formula to account for multiple relocators.[^324]

92. Comsearch also notes that it is quite likely that AWS licensees will
    undertake significant relocation efforts before MSS licensees, in
    which case the non-depreciating reimbursement obligation of Section
    101.82 will be a burden on MSS licensees rather than an "additional
    assurance of cost recovery."[^325] As such, Comsearch recommends the
    Part 24 cost-sharing formula, which includes depreciation, as the
    simplest to implement and the most equitable to all parties.[^326]
    Comsearch and PCIA further recommend that we require MSS operators
    to file prior coordination notices (PCNs) so the clearinghouse can
    accurately track sharing obligations as they relate to third
    parties. PCIA states that the task of a clearinghouse is to identify
    cost sharing as between licensees, identify the amounts registered
    with the clearinghouse for link relocation, and apply set formulas
    in the rules for depreciation and sharing.[^327] Comsearch urges
    reconsideration of the relocation and cost-sharing rules applicable
    to MSS[^328] and proposes that MSS licensees coordinate all
    satellite downlink and ATC design proposals and register all
    incumbent links subject to reimbursement with the clearinghouse
    using procedures similar to Part 24.[^329] Comsearch explains that
    while a clearinghouse would be useful to MSS licensees looking to
    quickly recover any reimbursement claims, it would also serve an
    equally important role for AWS licensees by identifying any MSS
    cost-sharing obligations.[^330]

93. *Discussion.* Based on the record before us, we conclude that MSS
    operators will have different cost-sharing obligations for microwave
    links that are relocated for space-to-Earth downlink operations than
    for microwave links that are relocated for MSS ATC operations. As
    noted above, we had previously adopted rules (*see* Section 101.82)
    for MSS cost sharing based on an interference criteria (TIA
    Technical Services Bulletin 86 (TIA TSB 86)), and the *AWS Fifth
    Notice* did not propose to change these relocation and cost-sharing
    obligations because the MSS operators were already in the midst of
    implementing these processes. The *AWS Fifth Notice* did, however,
    seek comment on whether MSS operators should use a clearinghouse for
    cost sharing. The relocation and cost-sharing obligations triggered
    by space-to-Earth links is relatively straightforward to implement
    because the MSS operator will relocate all incumbent microwave
    operations within the satellite service area before it begins
    operations if interference will occur. The MSS operator and the AWS
    licensees can therefore easily identify the parties with whom they
    will share costs.[^331] We thus conclude here that we will not
    require MSS operators to use a clearinghouse for microwave links
    relocated for space-to-Earth downlinks and we will continue to apply
    the relocation and cost-sharing obligations provided in Section
    101.82 to MSS operators that relocate microwave links for
    space-to-Earth downlink operations. We further conclude that MSS
    operators that relocate microwave links for space-to-Earth downlink
    operations should have the right, but not the obligation, to submit
    their claims for reimbursement (from AWS licensees) to the AWS
    clearinghouse pursuant to the procedures we adopt herein. As
    TMI/TerreStar and PCIA note, using the clearinghouse for
    reimbursement claims is voluntary in that MSS operators retain the
    right to enter into private cost-sharing agreements with AWS
    licensees. We clarify that if an MSS operator submits a claim to the
    clearinghouse, the interference criteria for determining
    cost-sharing obligations for an MSS space-to-Earth downlink is TIA
    TSB 86.

94. As TMI/TerreStar notes, the MSS cost-sharing obligations previously
    codified in Section 101.82 do not address MSS/ATC. Unlike MSS
    space-to-Earth downlinks which present relatively straightforward
    relocation and cost-sharing obligations, ATC operations will trigger
    incumbent microwave relocations on a link-by-link basis in the same
    way as AWS operations. We find that, since Section 101.82 is silent
    as to reimbursement for microwave links relocated for ATC base
    stations, it is appropriate to adopt a specific rule for ATC
    reimbursement for relocated terrestrial microwave facilities. Based
    on the record before us, we conclude that MSS operators that
    relocate microwave links for ATC operations will be required to use
    a clearinghouse for cost sharing and thus will have the same
    cost-sharing obligations as AWS entrants. The Commission previously
    determined that cost sharing would be determined using the relevant
    interference modeling[^332] and that TIA TSB 10-F, or its successor
    standard, is an appropriate standard for purposes of triggering
    relocation obligations by new terrestrial (ATC or AWS) entrants in
    the 2 GHz band.[^333] The Commission also noted that procedures
    other than TIA TSB 10-F that follow generally acceptable good
    engineering practices are also acceptable.[^334] For the same
    reasons discussed above in the context of intra-AWS cost
    sharing,[^335] and based on the record before us, we conclude that
    the Proximity Threshold Test is an acceptable alternative to TIA TSB
    10-F to determine interference for purposes of AWS-to-ATC and
    ATC-to-AWS cost sharing, and we adopt its use here as well.[^336]

95. Furthermore, the Commission has specifically concluded that MSS
    terrestrial operations are technically similar to PCS and that TIA
    TSB 10-F is a relevant standard for determining whether a new ATC
    base station must relocate an incumbent microwave operation.[^337]
    Given that the Proximity Threshold Test used for PCS, and now AWS
    cost-sharing obligations, is an acceptable alternative to TIA TSB
    10-F to determine interference for purposes of cost sharing, we find
    it reasonable to also use this test for triggering ATC to AWS
    cost-sharing obligations. Under this approach, reimbursement is only
    triggered if all or part of the relocated microwave link was
    initially co-channel with the licensed band(s) of the AWS or ATC
    operator.[^338] The Proximity Threshold Test will be easier to
    administer than TIA TSB 10-F and does not require extensive
    engineering studies or analyses, and it yields consistent,
    predictable results by eliminating the variations which can be
    associated with the use of TIA TSB 10-F.[^339]

96. Given that AWS and ATC are terrestrial operations, we agree that MSS
    participation in the clearinghouse process should be mandatory for
    ATC operations so that the clearinghouse can accurately track
    cost-sharing obligations as they relate to all terrestrial
    operations. Thus, MSS operators must file notices of operation with
    the clearinghouse for all ATC base stations following the same rules
    and procedures that that will govern all AWS base stations. On the
    other hand, we find that the record before us provides no technical
    basis for adopting PCIA's proposal that, when MSS initiates
    space-to-Earth operations, cost sharing should be triggered
    nationwide automatically (rather than based on an interference
    analysis) for all previously relocated co-channel links. Moreover,
    the Commission previously concluded that TIA TSB 86 is the
    appropriate standard for purposes of triggering both relocation and
    cost-sharing obligations of new MSS downlink (space-to-Earth)
    operations.[^340]

97. We decline TMI/TerreStar's suggestion to delegate the task of
    selecting a clearinghouse(s) jointly to WTB and the International
    Bureau. Our clearinghouse decisions today will impose mandatory
    requirements only on terrestrial operations and we believe that
    delegating authority to one bureau will promote consistency and
    uniformity. We also note that, as was the case for PCS, all entities
    interested in serving as a clearinghouse will have an opportunity to
    apply. Further, although WTB will oversee the selection of a
    clearinghouse(s), the International Bureau's expertise in mobile
    satellite licensing remains fully available to that bureau, if
    needed. Moreover, as was the case for the PCS clearinghouse, the
    selection process as well as the appropriate clearinghouse(s)
    policies and procedures will be public, likely available on the
    Internet, to ensure neutrality and transparency.

98. Under Section 101.79, MSS is not required to pay relocation costs
    after the relocation rules sunset, *i.e*., ten years after the
    mandatory negotiation period began for MSS/ATC licensees in this
    service.[^341] For MSS/ATC, the relocation sunset date will be
    December 8, 2013.[^342] Under Part 101, new cost-sharing obligations
    under Section 101.82 sunset along with the relocation sunset.
    Nonetheless, TMI/TerreStar's concern that any clearinghouse-based
    reimbursement option should be available until at least December 31,
    2014, appears to be satisfied because, as discussed above, the AWS
    cost-sharing obligation sunset will not occur until after
    2015.[^343]

99. We decline the suggestion to impose an obligation on MSS to share
    costs with self-relocating FS incumbents because the proposal is
    beyond the scope of the *AWS Fifth Notice.* We further note that the
    Commission previously concluded that a reimbursement scheme for
    voluntary self-relocation was not envisioned by the MSS/FS
    relocation plan and that initiating a plan for MSS reimbursing those
    who voluntarily relocate was not warranted.[^344] Similarly, we
    decline the suggestion to adopt Part 24 depreciation for AWS/MSS
    cost sharing both because it beyond the scope of the *Fifth Notice*
    and because the Commission concluded in 2000 that the Part 24
    amortization formula, whereby the amount of reimbursement owed by
    later entrants diminishes over time, is irrelevant to AWS/MSS cost
    sharing. The Commission explained that the amortization schedule is
    intended to account for the competitive advantage that the first
    provider to the market enjoys over later entrants and that the
    competitive advantage of early entry does not factor into this
    case.[^345] The record before us presents no basis for reversing
    this earlier conclusion. Thus, as noted in the *AWS Fifth Notice*,
    the Part 24 plan formula, *e.g.*, depreciation, will not govern
    reimbursement due to an MSS licensee who requests reimbursement from
    an MSS or AWS licensee, or to reimbursement due to an AWS licensee
    who requests reimbursement from an MSS licensee under Section
    101.82. If an AWS licensee reimburses an MSS licensee under Section
    101.82, this sum shall be treated as the entire actual cost of the
    link relocation for purposes of applying the cost-sharing formula
    relative to other AWS licensees that benefit.[^346] In such
    instances, the AWS licensee must register the link with a
    clearinghouse within 30 calendar days of making the payment to the
    MSS operator.[^347]

100. The suggestion to require MSS/ATC to coordinate with FS incumbents
     is similarly beyond the scope of the *AWS Fifth Notice,* which
     focused on whether MSS should participate in the terrestrial
     clearinghouse. The *AWS Fifth Notice* expressly declined to revisit
     the MSS relocation and cost-sharing matters decided between 2000
     and 2003 and directly stated that new MSS licensees would continue
     to follow the cost-sharing approach set forth in Section
     101.82.[^348] Comsearch's point that it is no longer a certainty
     that MSS will begin operations before AWS is well taken.
     Nonetheless, as noted in the *AWS Fifth Notice*, the relocation
     process adopted for MSS is already underway. In this connection, we
     note that the mandatory negotiation period for non-public safety
     and public safety incumbents ended on December 8, 2004, and
     December 8, 2005, respectively.[^349] Therefore, because these
     additional suggestions are beyond the scope of the *AWS Fifth
     Notice* and address issues already decided in prior Commission
     decisions, we decline to adopt these requests herein.

### Relocation of Incumbent BRS Licensees in the 2150-2160/62 MHz Band

101. *Background.* In the *AWS Fifth Notice*, the Commission stated that
     there may be instances where an AWS entrant relocates more BRS
     facilities than an interference analysis would indicate was
     technically necessary.[^350] The Commission noted for example, that
     an AWS entrant might be required to relocate facilities outside its
     own service area to comply with the comparable facilities
     requirement.[^351] In that event, a subsequent co-channel AWS
     entrant in an adjacent geographic area might also benefit from the
     relocation.[^352] The Commission noted, in addition, that the
     relocation of a single BRS facility might benefit more than one AWS
     entrant.[^353] The Commission therefore sought comment on whether
     it should require AWS licensees who benefit from an earlier AWS
     licensee's relocation of a BRS incumbent in the 2150-2160/62 MHz
     band to share in the cost of that relocation.[^354] In particular,
     the Commission sought comment on what criteria could be used to
     identify whether a subsequent AWS licensee has an obligation to
     share the cost of relocating a BRS incumbent and how costs should
     be apportioned among new entrants.[^355] The Commission further
     sought comment on whether cost-sharing obligations should be
     subject to a specific cap, whether it should adopt formal
     cost-sharing procedures such as the Part 24 cost-sharing plan, and
     whether a clearinghouse should be assigned to administer the
     process.[^356]

102. *Comments.* Commenters addressing the issue generally agree that
     the costs of a BRS system relocation should be shared among AWS
     licensees that benefit from the relocation.[^357] Commenters
     assert, in particular, that AWS licensees in the F Block, which
     overlaps that portion of BRS channel 1 spectrum from 2150-2155 MHz,
     should be entitled to share the costs of relocating BRS channel 1
     and 2/2A incumbents with future AWS licensees that are licensed to
     use the upper one megahertz of BRS channel 1 (2155-2156 MHz) and
     the spectrum now occupied by BRS channels 2 and 2A (2156-2160/62
     MHz).[^358] However few commenters offer details regarding what
     cost-sharing rules we should adopt. CTIA PCIA and T-Mobile support
     adopting the PCS cost-sharing framework.[^359] CTIA also states
     that "to ensure consistent treatment of similar services the
     Commission should develop a single set of cost-sharing rules and
     universally apply them to all implicated services."[^360] However,
     none of these commenters offer guidance on how to modify tests and
     procedures designed to work for FS relocation so that they work for
     BRS. US Cellular advocates adopting a cost-sharing plan in which
     only co-channel interference with BRS systems would be considered
     for purposes of triggering an AWS cost-sharing obligation.[^361] It
     argues that excluding adjacent channel interference "for cost
     sharing purposes greatly simplifies the cost-sharing plan and
     eliminates many possible disagreements over whether an AWS system
     would have caused or experienced adjacent channel
     interference."[^362] Comsearch suggests using the line-of-site test
     as a method for identifying whether an AWS entrant is a beneficiary
     of the relocation of a particular BRS system.[^363] T-Mobile
     recommends that, if the line-of-sight test is chosen, "the
     Commission should also specify a particular model for determining
     line of sight, as well as any other variable inputs into such a
     determination so there is no ambiguity as to whether or not a
     threshold condition has been met."[^364] Finally while no commenter
     has discussed whether there should be a cap on cost-sharing
     obligations specifically (*i.e.*, a cap on the costs that a
     relocator can seek from other AWS licensees that benefit from the
     relocation) CTIA has proposed that the Commission establish a cap
     on relocation costs.[^365] Specifically, it proposes as described
     above that each BRS incumbent submit pre-auction an estimate of
     what it will cost to relocate the incumbent's systems, and further
     proposes that an AWS licensee relocating the incumbent be obligated
     to spend no more than 110% of this estimate.[^366]

103. With regard to the use of a clearinghouse to administer the
     cost-sharing process involved in the BRS relocation, the few
     commenting parties addressing the issue are generally
     supportive.[^367] For example, Comsearch states that, without a
     clearinghouse, the cost-sharing process would be inefficient and
     subject to disputes, thereby hindering and delaying the relocation
     process.[^368] PCIA asserts that "the application of the
     cost-sharing model to BRS relocation including the use of a
     clearinghouse will be necessary" because "BRS channel 1 overlaps
     not only the F Block of AWS spectrum but also new AWS spectrum at
     2155-2180 MHz" and because of the potential for BRS facilities to
     cross more than one AWS market.[^369] CTIA contends that using a
     third-party clearinghouse "is essential to an efficient and
     effective cost-sharing mechanism."[^370]

104. *Discussion.* We find that cost sharing will provide for a more
     equitable relocation process by spreading the costs of the
     relocation among the AWS licensees that benefit. In addition cost
     sharing should accelerate the relocation process by encouraging new
     entrants to relocate systems themselves rather than wait for
     another entrant to do so. We note that no commenter opposes the
     imposition of such obligations, and several expressly support
     it.[^371] We therefore conclude that we should establish
     cost-sharing obligations for AWS licensees that benefit from
     another AWS licensee's relocation of a BRS incumbent from the
     2150-2160/62 MHz band.[^372]

105. We further conclude that the Part 24 cost-sharing rules provide an
     appropriate framework for BRS relocation cost sharing. As discussed
     above, the Part 24 cost-sharing rules and procedures have proven
     effective in sharing the costs of FS relocation. Admittedly, as the
     Commission noted in the *AWS Fifth Notice*, applying the PCS
     cost-sharing regime to BRS will require significant changes to
     account for the differences between BRS services and fixed
     point-to-point services. We find, however, that in most respects,
     the PCS cost-sharing regime can be applied to BRS. We further find
     that the PCS cost-sharing system provides the best balance of
     competing concerns, such as precision and ease of administration.
     Adopting a regime based on the PCS cost-sharing rules will also
     benefit AWS licensees to the extent that they already have a
     familiarity with the system. In addition, we anticipate, as
     discussed in detail below, that an administrator of the
     cost-sharing system can achieve efficiencies by jointly
     administering BRS cost sharing with the very similar regime we have
     established for relocation of FS incumbents. Finally, we note that
     several commenters support the application of the PCS cost-sharing
     framework, and none suggest an alternative comprehensive
     cost-sharing regime.[^373] Therefore our implementation of a BRS
     cost-sharing regime is guided generally by the PCS cost-sharing
     rules and departs from those rules only where a different approach
     is justified.

106. *Clearinghouse.* We agree with those commenters who recommend using
     a clearinghouse to administer any cost-sharing rules the Commission
     may adopt in the relocation of BRS incumbents from the 2150-2160/62
     MHz band. The efficiency and ability of a clearinghouse to resolve
     disputes among new entrants and incumbents will help to expedite
     the relocation process. Moreover, to the extent that the
     clearinghouse established to administer cost-sharing rules for the
     relocation of FS incumbents in the 2.1 GHz band might also
     administer the cost-sharing process for BRS relocation, this would
     promote efficiencies and reduce potential delays suggested by some
     commenters.[^374]

107. We therefore delegate to WTB the authority to select one or more
     entities to create and administer a neutral, not-for-profit
     clearinghouse. Selection shall be based on criteria established by
     WTB. WTB shall publicly announce the criteria and solicit proposals
     from qualified parties. Once such proposals have been received, and
     an opportunity has elapsed for public comment on them, WTB shall
     make its selection. When WTB selects an administrator, it shall
     announce the effective date of the cost-sharing rules.

108. *Triggering A Reimbursement Obligation.* We establish the following
     rules for identifying when an AWS licensee entering a market
     triggers a cost-sharing obligation in connection with the prior
     relocation of a BRS system in the 2150-2160/62 MHz band.[^375]
     First, we limit cost-sharing obligations to those AWS entrants
     licensed in spectrum that is co-channel, at least in part, with the
     bands previously used by the relocated BRS system (*i.e.,* those
     AWS entrants who operate using licenses that overlap with the
     2150-2160/62 MHz band). We note that the Commission similarly
     limited the PCS cost-sharing obligations to new entrants that would
     have caused co-channel interference to the incumbent, and we agree
     with US Cellular that excluding other AWS channels
     \[non-co-channel\] for cost sharing purposes "greatly simplifies
     the cost-sharing plan and eliminates many possible disagreements
     over whether an AWS system would have caused or experienced
     adjacent channel interference."[^376]

109. When an AWS entrant turns on a fixed base station using a license
     that overlaps spectrum in the 2150-2160/62 MHz band previously used
     by a relocated BRS system, a cost obligation will be triggered
     if the base station transmitting antenna is determined to have a
     line-of-sight path with the receiving antenna of the relocated BRS
     system hub.[^377] For BRS systems using the 2150-2160/62 MHz band
     exclusively to provide one-way transmission to subscribers, *i.e.*,
     delivery of video programming, we employ a different line-of-sight
     test, as we have above in the relocation process, to account for
     the fact that interference to the BRS system would occur at the
     subscriber's end user equipment. For these systems, a cost
     obligation will be triggered if the AWS entrant has line of sight
     to the BRS incumbent's GSA.[^378]

110. We choose the line-of-sight test described above as the test for
     triggering cost-sharing obligations for a number of reasons. As an
     initial matter, we note that this approach to identifying
     beneficiaries is supported by Comsearch and that no commenter has
     suggested an alternative method.[^379] Further, we have already
     determined that, as proposed by Sprint Nextel and other parties,
     line of sight provides an appropriate test for determining whether
     an AWS entrant in the 2150-2160/62 MHz band must relocate a
     co-channel BRS incumbent.[^380]  It is therefore also an
     appropriate means of determining whether other AWS entrants would
     have been required to relocate the system, and have thus benefited
     from the relocation.

111. As we have noted above, the line-of-sight test constitutes an
     easy-to-implement "bright-line" test.[^381] Thus, we believe that
     the test satisfies the requests of several commenters for clarity
     and certainty in the cost-sharing process.[^382] We also expect
     that the administrative burden of applying the line-of-sight test
     to identify beneficiaries of a relocation and the potential for
     disputes over its application will be limited for several reasons.
     First, because we have excluded licensees operating solely in
     adjacent and non-adjacent spectrum from cost-sharing obligations,
     only co-channel interference need be considered. Second, there are
     a relatively limited number of BRS systems and thus few systems for
     whom potential beneficiaries will need to be determined.[^383]
     Third, because the 2145-2155 MHz block will be licensed on a REAG
     basis,[^384] which is the largest geographic area license in the
     AWS spectrum, we expect that only one 2145-2155 MHz licensee would
     typically cause interference to a BRS system, and thus that there
     will be few instances of cost sharing between 2145-2155 MHz
     licensees.[^385]

112. *Obtaining Reimbursement Rights.* As in the PCS system, in order to
     receive reimbursement from licensees that benefit from a
     relocation, we require an AWS relocator to register the system that
     has been relocated with a cost-sharing clearinghouse. Following the
     PCS model, as modified above for AWS relocation of FS, we provide
     that AWS licensees receive rights to reimbursement on the date that
     they enter into an agreement to relocate a BRS system in the
     2150-2160/62 MHz band, and we require them to register
     documentation of the relocation agreement, with a clearinghouse
     within 30 calendar days of the date that the relocation agreement
     is signed. In the event that relocation is involuntary, we require
     the AWS licensee to file documentation of the relocation with the
     clearinghouse within 30 calendar days after the end of the
     relocation process, which will be the end of the one-year trial
     period in the absence of any disputes during that period.[^386]

113. We further require AWS licensees, in registering their
     reimbursement rights with a clearinghouse, to provide certain
     information necessary to implement the reimbursement trigger test
     we have established. As discussed above, to determine whether an
     AWS licensee beginning operation of a base station has triggered a
     reimbursement obligation, a clearinghouse will apply a
     line-of-sight test. The precise line-of-sight method differs
     depending on whether the relocated system used the 2150-2160/62 MHz
     band for one-way transmissions to their subscribers' end user
     equipment or to receive broadband data at the BRS receive station
     hub. Therefore, we require AWS licensees registering relocated
     systems to provide the following information to the
     clearinghouse: (1) a detailed description of the relocated system's
     spectral frequency use; (2) if the system exclusively provided
     one-way transmission to subscribers, the GSA of the relocated
     system; and (3) if the system did not exclusively provide one-way
     transmission to subscribers, the system hub antenna's geographic
     location and the above ground level height of the receive station
     hub's receiving antenna centerline.

114. *Registration of New or Modified AWS Stations.* As noted above in
     our discussion of cost sharing for FS relocation, to permit a
     clearinghouse to identify AWS beneficiaries of an FS relocation,
     every AWS licensee that constructs a new site or modifies an
     existing site in the 2.1 GHz band must file certain site
     information with the clearinghouse(s) prior to commencing
     operations.[^387] To ensure that a clearinghouse can apply the
     line-of-sight test to identify beneficiaries of a BRS relocation,
     however, we will require AWS licensees that construct or modify a
     site in the 2150-2162 MHz band to file, in addition to the
     information required from other 2.1 GHz AWS licensees, the above
     ground level height of the transmitting antenna centerline. We
     note, in particular, that the duty to file this information applies
     to an AWS licensee that modifies the frequencies used by a station
     such that a station previously operating entirely outside the
     2150-2162 MHz band now operates inside the band. We further impose
     a continuing duty on entities to maintain the accuracy of the data
     on file with the clearinghouse, including height data and spectrum
     use.[^388]

115. *Determining Reimbursement Rights.* A particular beneficiary's
     cost-sharing obligation will be calculated using the PCS
     cost-sharing formula discussed above, which imposes on each
     beneficiary a *pro rata* share of the relocation cost reduced in
     amount by a depreciation factor. We modify the PCS formula in one
     respect however using a fifteen year depreciation period rather
     than the ten year period used by PCS and AWS licensees. Choosing
     the same fifteen-year period for depreciation that we have chosen
     above for the relocation sunset period ensures that any AWS
     beneficiary that enters BRS spectrum before the relocation sunset
     will incur some obligation to share in the cost of the prior
     relocation.

116. We will also follow the policy in the PCS cost-sharing rules that
     entitles relocators to full reimbursement without depreciation
     (rather than a *pro rata* amount subject to depreciation) where
     they relocate facilities that do not pose an interference problem
     to their own stations. This policy is intended to provide a new
     licensee with an incentive to relocate an incumbent's entire
     network instead of only those facilities that the licensee would be
     required to relocate under an interference analysis.[^389] Here,
     because we require relocation on a system-by-system basis (*i.e.*,
     a licensee that interferes with part of a BRS system must relocate
     the entire system, but not necessarily a separate system that is
     part of the BRS incumbent's network), we hold that relocators will
     be entitled to 100 percent reimbursement for the costs of
     relocating a particular system if they would not have triggered a
     relocation obligation for that system. As with the PCS and AWS
     rules, we adopt a simplified test for determining when a relocator
     would have been required to relocate the system that ignores the
     possibility of adjacent or non-adjacent channel interference.
     Specifically, we will allow full reimbursement of compensable costs
     if either (1) the AWS relocator's licensed frequency band is fully
     outside the BRS system's spectrum; or (2) the AWS relocator would
     not have triggered relocation under the applicable line-of-sight
     test**.**[^390]

117. We decline to adopt a cap on the amount of reimbursement that
     benefiting entrants may owe. We note that no party has expressly
     proposed a cost-sharing cap and that CTIA's proposal would cap
     actual relocation costs rather than merely capping cost-sharing
     obligations. However, even if the cap were to apply only to
     cost-sharing obligations, we are not persuaded that it is practical
     for incumbents to determine such costs at this time. We also note
     that a cap on cost-sharing obligations would have no effect on
     incumbents' rights to relocation costs and would only limit the
     rights of AWS licensees to receive reimbursement from other AWS
     licensees. We are therefore concerned that incumbents would not
     have adequate incentives to identify an appropriate cost-sharing
     cap. Finally, we find no basis in the record to determine a
     specific cap ourselves. We therefore conclude that the reimbursable
     costs of a BRS system relocation will not be limited to any
     specific maximum amount.

118. AWS licensees will therefore not have the safeguard and assurance
     of a specific cap on their reimbursement obligations as they do
     under the PCS cost-sharing rules. We nevertheless conclude that the
     rules we adopt below will provide beneficiaries with adequate
     protection from excessive reimbursement obligations. The PCS
     cost-sharing rules that we will incorporate include many other
     protections against excessive costs and, in addition, we have made
     modifications to the rules, as discussed below, to add to those
     protections.

119. First in defining reimbursable costs, we follow the policy in the
     PCS cost-sharing rules of limiting reimbursement to the actual cost
     of providing comparable facilities. Actual costs include those
     costs for which a relocator would be responsible in an involuntary
     relocation. In addition, incumbent transaction costs that are
     directly attributable to the relocation will also be subject to
     cost-sharing reimbursement up to a cap of two percent of the "hard"
     costs. Any relocation payments beyond these costs described above,
     so-called "premium" payments, are not reimbursable.[^391] As we
     have with the FS cost-sharing regime, we further require relocators
     to prepare and submit an itemized documentation of all reimbursable
     relocation costs.[^392] In providing itemization, we direct parties
     to provide itemization of any applicable costs listed in section
     24.243(b), and for other costs, such as equipment not listed in
     section 24.243(b), to be guided by that provision in determining
     appropriate detail of itemization.[^393] We direct the
     clearinghouse to require re-filing of any documentation found to be
     insufficiently specific.

120. In addition to preparing the documentation described above, we
     require each relocator, as a prerequisite for receiving
     reimbursement through the cost-sharing regime, to obtain a
     third-party appraisal of the actual costs of replacing the system
     with comparable facilities prior to relocation, and to provide this
     appraisal to the clearinghouse with its registration.[^394] We
     believe that an independent appraisal will, in most cases, be a
     necessary safeguard against excessive costs in the absence of a
     specific cap on reimbursement obligations.[^395] However, we also
     believe that there may be some cases where the appraisal adds an
     unnecessary cost to the process. In particular, the requested
     reimbursement may be low enough that the costs requested are
     clearly justified without the additional evidence that an appraisal
     provides. We therefore provide one exception to the requirement of
     a third-party appraisal that should allow for a more efficient
     process in cases where cost claims are well within the bounds of
     reasonableness. In particular, we will allow an AWS relocator to
     register its reimbursement claim without providing the third-party
     appraisal, on condition that, in submitting its cost claim, it
     consents to binding resolution of any good faith disputes regarding
     that claim by the clearinghouse under the following standard: the
     relocator shall bear the ultimate burden of proof, and shall be
     required to demonstrate by clear and convincing evidence that its
     request does not exceed the actual costs of relocating the relevant
     BRS system or systems to comparable facilities. We expect that, by
     imposing on AWS relocators a substantial burden of proof and the
     risk of losing reimbursement rights, we will discourage them from
     exercising the option to waive an appraisal except in those cases
     where, even in the absence of an appraisal, disputes are unlikely
     to arise.[^396]

121. We also note that the depreciation of reimbursement obligations
     itself should help to deter excessive relocation costs. The fact
     that reimbursement obligations depreciate over time (with the
     limited exception noted above) will mean that the relocator will
     usually bear the largest share of the burden. Thus it will provide
     the relocator with greater incentive to obtain relocation at a
     reasonable cost in the first instance.

122. Taken together these measures should provide subsequent entrants
     with sufficient assurance in most cases that their cost-sharing
     obligations are not excessive. Should parties have good faith
     objections to reimbursement claims, however, they may exercise the
     same dispute resolution options available under the PCS
     cost-sharing rules including review by the clearinghouse, and
     possible resolution by alternative dispute resolution methods such
     as arbitration.[^397] We require, as we have above with FS
     cost-sharing disputes, that parties submit BRS cost-sharing
     disputes to the clearinghouse in the first instance.

123. *Participation in the Cost-sharing Plan.* The cost-sharing
     obligations we establish above merely serve as defaults. As in the
     PCS cost-sharing rules parties remain free to enter into private
     cost-sharing arrangements that alter some or all of these default
     obligations. Such private agreements may serve to further limit
     disputes regarding particular obligations. We emphasize however
     that parties to a private cost-sharing agreement may continue to
     seek reimbursement under the cost-sharing rules from those
     licensees that are not party to the agreement. Further, except
     insofar as there is a superceding agreement, we require all AWS
     licensees to participate in the cost-sharing process as established
     above. Thus, AWS relocators of a BRS system, to receive
     reimbursement, must pursue such reimbursement through the process
     established above, except to the extent that they have made
     agreements to an alternative process. Likewise, all AWS licensees
     that benefit from a relocation will be subject to the cost-sharing
     obligations established above unless there is an applicable
     agreement that supercedes those obligations.[^398]

124. *Payment Issues and Incorporation of FS Rulings.* With regard to
     the timing of payments, and the eligibility for installment
     payments, we adopt the same rules for the BRS cost-sharing regime
     as we applied in the PCS cost-sharing system.[^399] We also follow,
     in the BRS context, the ruling that cost-sharing obligations are
     not terminated by the physical deconstruction of the benefiting AWS
     base station.[^400]

125. *Sunset.* As the Commission did with the PCS cost-sharing rules we
     set a specific date on which the cost-sharing regime will cease. We
     conclude that the cost-sharing regime should terminate on the same
     day that the relocation obligation in the 2150-2160/62 MHz band
     sunsets. We note that after the obligation to relocate BRS
     incumbents sunsets, a new AWS entrant need not incur any expense to
     require incumbents to vacate, and therefore receives no benefit
     from an earlier relocation. Because licensees entering after the
     relocation sunset receive no benefit from an earlier relocation, we
     conclude that it is appropriate that they should incur no cost
     obligations. Accordingly, while any reimbursement obligation that
     has accrued on or before the cost-sharing sunset date will continue
     no new obligations will accrue after that date.

# ORDER (WT Docket No. 02-353)

126. In 2003, the Commission adopted a rule in the *AWS-1 Service Rules
     Order*[^401] to require AWS licensees in the 2110-2155 MHz band to
     coordinate with incumbent BRS licensees operating in the 2150-2155
     MHz band prior to initiating operations from any base or fixed
     station.[^402] WCA filed a Petition for Reconsideration[^403]
     averring that this rule inadequately protects BRS incumbents
     operating in the 2150-2160/62 MHz band from interference. WCA
     contends that this coordination approach is inconsistent with the
     Commission's statement in the *AWS-1 Service Rules Order* that
     "until such time as \[MDS\] operations are relocated, they must be
     protected from interference from AWS systems."[^404] WCA adds that
     "had the \[*AWS-1 Service Rules Order*\] ended there \[WCA's\]
     petition for reconsideration would not have been necessary."

127. WCA asserts that a "coordination" requirement assumes that BRS
     upstream transmissions can co-exist with AWS downstream
     transmission on adjacent spectrum, which WCA argues is not possible
     if AWS licensees in the 2110-2155 MHz band are required to satisfy
     the same out-of-band emissions (OOBE) criteria to protect BRS
     licensees that they must employ to protect adjacent band AWS
     licensees (43 + 10log~10~(P)).[^405] WCA also objects to the
     Commission's retainer of the option of "imposing requirements on
     either or both parties" in the event of a dispute.[^406] WCA avers
     that ultimately, the Commission must deal with the larger issue of
     relocating BRS.[^407]

128. Today, in our *Ninth R&O* in ET Docket No. 00-258, we adopt
     significant revisions to our rules and policies regarding BRS
     channel 1 and 2/2A relocation. We find that our actions today have
     rendered the WCA Petition moot.[^408] We therefore dismiss the
     petition for that reason.

# Procedural matters

129. *Final Regulatory Flexibility Analysis for Ninth Report and Order.*
     As required by Section 603 of the Regulatory Flexibility Act, 5
     U.S.C. § 603, the Commission has prepared a Final Regulatory
     Flexibility Analysis (FRFA) of the possible significant economic
     impact on small entities of the proposals suggested in this
     document. The FRFA is set forth in Appendix B.

130. *Final Paperwork Reduction Analysis.* This *Ninth Report and Order
     and Order* contains new or modified information collection
     requirements subject to the Paperwork Reduction Act of 1995 (PRA),
     Public Law 104-13. It will be submitted to the Office of Management
     and Budget (OMB) for review under Section 3705(d) of the PRA. OMB,
     the general public, and other Federal agencies are invited to
     comment on the new or modified information collections contained in
     this proceeding. In addition, we note that pursuant to the Small
     Business Paperwork Relief Act of 2002, Public Law No. 107-198
     (*see* 44 U.S.C. § 3506(c)(4)), the Commission previously sought
     specific comment on how the Commission might "further reduce the
     information collection burden for small business concerns with
     fewer than 25 employees."

131. *Congressional Review Act.* The Commission will send a copy of this
     *Ninth Report and Order and* *Order* in a report to be sent to
     Congress and the General Accounting Office pursuant to the
     Congressional Review Act, *see* 5 U.S.C. § 801(a)(1)(A).

132. *Further Information.* For further information, contact Priya
     Shrinivasan or Patrick Forster, Office of Engineering and
     Technology, at (202) 418-7005 or (202) 418-7061, or via the
     Internet at <Priya.Shrinivasan@fcc.gov> or
     <Patrick.Forster@fcc.gov>, respectively.

# ordering clauses

133. Accordingly, IT IS ORDERED that pursuant to Sections 1, 4(i), 7(a),
     301, 303(f), 303(g), 303(r), 307, 316, 332 of the Communications
     Act of 1934, as amended, 47 U.S.C. Sections 151, 154(i), 157(a),
     301, 303(f), 303(g), 303(r), 307, 316, and 332, this Ninth Report
     and Order IS ADOPTED and that Parts 22, 27, and 101 of the
     Commission's Rules ARE AMENDED, as specified in Appendix A,
     \[**effective 30 days after publication in the Federal
     Register**\], except for Sections 27.1166(a), (b) and (e); 27.1170;
     27.1182(a), (b); and 27.1186, which contain information collection
     requirements that are not effective until approved by the Office of
     Management and Budget. The FCC will publish a document in the
     Federal Register announcing the effective date for those sections
     when approved.

134. IT IS FURTHER ORDERED that the Petition for Reconsideration filed
     by the Wireless Communications Association International on March
     8, 2004 (WT Docket No. 02-353), IS DISMISSED as moot.

135. IT IS FURTHER ORDERED that the Commission's Consumer and
     Governmental Affairs Bureau, Reference Information Center, SHALL
     SEND a copy of this Ninth Report and Order and Order, including the
     Final Regulatory Flexibility Analysis to the Chief Counsel for
     Advocacy of the Small Business Administration.

FEDERAL COMMUNICATIONS COMMISSION

Marlene H. Dortch

Secretary

**APPENDIX A**

**FINAL RULES**

For the reasons discussed in the preamble, the Federal Communications
Commission amends 47 CFR Parts 22, 27, and 101 as follows:

**PART 22 -- PUBLIC MOBILE SERVICES**

1\. The authority citation for Part 22 continues to read as follows:

Authority: 47 U.S.C. 154, 222, 303, 309, and 332.

2\. Section 22.602 is amended by revising the heading, removing and
reserving paragraphs (b) and (h), revising paragraphs (c), (d), (e), and
(j), and by adding a new paragraph (k) to read\
as follows:

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

> \*\*\*
>
> \(b\) \[Reserved\]
>
> \(c\) 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. \* \* \*
>
> \(e\) *Involuntary period.* After the end of the mandatory negotiation
> period, ET licensees may initiate involuntary relocation procedures
> under the Commission's rules. \*\*\*
>
> \(f\) \* \* \*
>
> \(g\) \* \* \*
>
> \(h\) \[Reserved\]
>
> \(i\) \* \* \*
>
> \(j\) *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.

\* \* \* \* \*

**PART 27 -- MISCELLANEOUS WIRELESS COMMUNICATIONS SERVICES**

The authority citation for Part 27 continues to read as follows:

Authority: 47 U.S.C. 154, 301, 302, 303, 307, 309, 332, 336, and 337
unless otherwise noted.

3.  Section 27.1111 is revised to read as follows:

**§ 27.1111 Relocation of fixed microwave service licensees in the
2110-2150 MHz band.**

Part 22, subpart E and Part 101, subpart B of this chapter contain
provisions governing the relocation of incumbent fixed microwave service
licensees in the 2110-2150 MHz band.

4.  Section 27.1132 is revised to read as follows:

**§ 27.1132 Protection of incumbent operations in the 2150-2160/62 MHz
band.**

All AWS licensees, prior to initiating operations from any base or fixed
station, shall follow the provisions of § 27.1255 of this part.

5.  Part 27, Subpart L is revised by adding Sections 27.1160-27.1190 to
    read as follows:

The heading for Subpart L is revised to read as follows:

**Subpart L -- 1710-1755 MHz, 2110-2155 MHz, 2160-2180 MHz Bands**

Section 27.1102, section heading is revised to read as follows:

**§ 27.1102 Designated Entities in the 1710-1755 MHz and 2110-2155 MHz
bands**

New Sections 27.1160 through 27.1174 are added to Subpart L to read as
follows:

**COST-SHARING POLICIES GOVERNING MICROWAVE RELOCATION FROM THE
2110-2150 MHZ AND 2160-2200 MHZ BANDS**

**§ 27.1160 Cost-sharing requirements for AWS.**

Frequencies in the 2110-2150 MHz and 2160-2180 MHz bands listed in
§ 101.147 of this chapter have been reallocated from Fixed Microwave
Services (FMS) to use by AWS (as reflected in § 2.106). In accordance
with procedures specified in § 22.602 and §§ 101.69 through 101.82 of
this chapter, AWS entities are required to relocate the existing
microwave licensees in these bands if interference to the existing
microwave licensee would occur. All AWS entities that benefit from the
clearance of this spectrum by other AWS entities or by a voluntarily
relocating microwave incumbent must contribute to such relocation costs.
AWS entities may satisfy their reimbursement requirement by entering
into private cost-sharing agreements or agreeing to terms other than
those specified in § 27.1164. However, AWS entities are required to
reimburse other AWS entities or voluntarily relocating microwave
incumbents that incur relocation costs and are not parties to the
alternative agreement. In addition, parties to a private cost-sharing
agreement may seek reimbursement through the clearinghouse (as discussed
in § 27.1162) from AWS entities or other Emerging Technologies (ET)
entities, including Mobile Satellite Service (MSS) operators (for
Ancillary Terrestrial Component (ATC) base stations), that are not
parties to the agreement. The cost-sharing plan is in effect during all
phases of microwave relocation specified in §§ 22.602 and 101.69 of this
chapter. If an AWS licensee enters into a spectrum leasing arrangement
(as set forth in Part 1, subpart X of this chapter) and the spectrum
lessee triggers a cost-sharing obligation, the licensee is the AWS
entity responsible for satisfying the cost-sharing obligations under
§§ 27.1160-27.1174.

**§ 27.1162 Administration of the Cost-Sharing Plan.**

The Wireless Telecommunications Bureau, under delegated authority, will
select one or more entities to operate as a neutral, not-for-profit
clearinghouse(s). This clearinghouse(s) will administer the cost-sharing
plan by, *inter alia*, determining the cost-sharing obligation of AWS
and other ET entities for the relocation of FMS incumbents from the
2110-2150 MHz and 2160-2200 MHz bands. The clearinghouse filing
requirements (see §§ 27.1166(a), 27.1170) will not take effect until an
administrator is selected.

**§ 27.1164 The cost-sharing formula.**

An AWS relocator who relocates an interfering microwave link, *i.e*.,
one that is in all or part of its market area and in all or part of its
frequency band or a voluntarily relocating microwave incumbent, is
entitled to *pro rata* reimbursement based on the following formula:

![](media/image1.png){width="1.3958333333333333in"
height="0.41944444444444445in"}

> \(a\) *RN* equals the amount of reimbursement.
>
> \(b\) *C* equals the actual cost of relocating the link(s). Actual
> relocation costs include, but are not limited to, such items as: Radio
> terminal equipment (TX and/or RX\--antenna, necessary feed lines,
> MUX/Modems); towers and/or modifications; back-up power equipment;
> monitoring or control equipment; engineering costs (design/path
> survey); installation; systems testing; FCC filing costs; site
> acquisition and civil works; zoning costs; training; disposal of old
> equipment; test equipment (vendor required); spare equipment; project
> management; prior coordination notification under § 101.103(d) of this
> chapter; site lease renegotiation; required antenna upgrades for
> interference control; power plant upgrade (if required); electrical
> grounding systems; Heating Ventilation and Air Conditioning (HVAC) (if
> required); alternate transport equipment; and leased facilities.
> Increased recurring costs represent part of the actual cost of
> relocation and, even if the compensation to the incumbent is in the
> form of a commitment to pay five years of charges, the AWS or MSS/ATC
> relocator is entitled to seek immediate reimbursement of the lump sum
> amount based on present value using current interest rates, provided
> it has entered into a legally binding agreement to pay the charges.
> *C* also includes voluntarily relocating microwave incumbent's
> independent third party appraisal of its compensable relocation costs
> and incumbent transaction expenses that are directly attributable to
> the 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. *C* may not exceed \$250,000 per paired link, with an
> additional \$150,000 permitted if a new or modified tower is required.
>
> \(c\) *N* equals the number of AWS and MSS/ATC entities that have
> triggered a cost-sharing obligation. For the AWS relocator, N=1. For
> the next AWS entity triggering a cost-sharing obligation, N=2, and so
> on. In the case of a voluntarily relocating microwave incumbent, N=1
> for the first AWS entity triggering a cost-sharing obligation. For the
> next AWS or MSS/ATC entity triggering a cost-sharing obligation, N =2,
> and so on.
>
> \(d\) *Tm* equals the number of months that have elapsed between the
> month the AWS or MSS/ATC relocator or voluntarily relocating microwave
> incumbent obtains reimbursement rights for the link and the month in
> which an AWS entity triggers a cost-sharing obligation. An AWS or
> MSS/ATC relocator obtains reimbursement rights for the link on the
> date that it signs a relocation agreement with a microwave incumbent.
> A voluntarily relocating microwave incumbent obtains reimbursement
> rights for the link on the date that the incumbent notifies the
> Commission that it intends to discontinue, or has discontinued, the
> use of the link, pursuant to § 101.305 of the Commission's rules.

**§ 27.1166 Reimbursement under the Cost-Sharing Plan.**

> \(a\) *Registration of reimbursement rights.* Claims for reimbursement
> under the cost-sharing plan are limited to relocation expenses
> incurred on or after the date when the first AWS license is issued in
> the relevant AWS band (start date). If a clearinghouse is not selected
> by that date (see § 27.1162) claims for reimbursement (see § 27.1166)
> and notices of operation (see § 27.1170) for activities that occurred
> after the start date but prior to the clearinghouse selection must be
> submitted to the clearinghouse within 30 calendar days of the
> selection date.
>
> \(1\) To obtain reimbursement, an AWS relocator or MSS/ATC relocator
> must submit documentation of the relocation agreement to the
> clearinghouse within 30 calendar days of the date a relocation
> agreement is signed with an incumbent. In the case of involuntary
> relocation, an AWS relocator or MSS/ATC relocator must submit
> documentation of the relocated system within 30 calendar days after
> the end of the relocation.
>
> \(2\) To obtain reimbursement, a voluntarily relocating microwave
> incumbent must submit documentation of the relocation of the link to
> the clearinghouse within 30 calendar days of the date that the
> incumbent notifies the Commission that it intends to discontinue, or
> has discontinued, the use of the link, pursuant to § 101.305 of the
> Commission\'s rules.
>
> \(b\) *Documentation of expenses.* Once relocation occurs, the AWS
> relocator, MSS/ATC relocator, or the voluntarily relocating microwave
> incumbent, must submit documentation itemizing the amount spent for
> items specifically listed in § 27.1164(b), as well as any reimbursable
> items not specifically listed in § 27.1164(b) that are directly
> attributable to actual relocation costs. Specifically, the AWS
> relocator, MSS/ATC relocator, or the voluntarily relocating microwave
> incumbent must submit, in the first instance, only the uniform cost
> data requested by the clearinghouse along with a copy, without
> redaction, of either the relocation agreement, if any, or the third
> party appraisal described in (b)(1), if relocation was undertaken by
> the microwave incumbent. AWS relocators, MSS/ATC relocators and
> voluntarily relocating microwave incumbents must maintain
> documentation of cost-related issues until the applicable sunset date
> and provide such documentation upon request, to the clearinghouse, the
> Commission, or entrants that trigger a cost-sharing obligation. If an
> AWS relocator pays a microwave incumbent a monetary sum to relocate
> its own facilities, the AWS relocator must estimate the costs
> associated with relocating the incumbent by itemizing the anticipated
> cost for items listed in § 27.1164(b). If the sum paid to the
> incumbent cannot be accounted for, the remaining amount is not
> eligible for reimbursement.
>
> \(1\) *Third party appraisal.* The voluntarily relocating microwave
> incumbent, must also submit an independent third party appraisal of
> its compensable relocation costs. The appraisal should be based on the
> actual cost of replacing the incumbent\'s system with comparable
> facilities and should exclude the cost of any equipment upgrades or
> items outside the scope of § 27.1164(b).
>
> \(2\) *Identification of links.* The AWS relocator, MSS/ATC relocator,
> or the voluntarily relocating microwave incumbent, must identify the
> particular link associated with appropriate expenses (i.e., costs may
> not be averaged over numerous links). Where the AWS relocator, MSS/ATC
> relocator, or voluntarily relocating microwave incumbent relocates
> both paths of a paired channel microwave link (*e.g.*, 2110-2130 MHz
> with 2160-2180 MHz and 2130-2150 MHz with 2180-2200 MHz), the AWS
> relocator, MSS/ATC relocator, or voluntarily relocating microwave
> incumbent must identify the expenses associated with each paired
> microwave link.
>
> \(c\) *Full Reimbursement.* An AWS relocator who relocates a microwave
> link that is either fully outside its market area or its licensed
> frequency band may seek full reimbursement through the clearinghouse
> of compensable costs, up to the reimbursement cap as defined in §
> 27.1164(b). Such reimbursement will not be subject to depreciation
> under the cost-sharing formula.
>
> \(d\) *Good Faith Requirement*. New entrants and incumbent licensees
> are expected to act in good faith in satisfying the cost-sharing
> obligations under §§ 27.1160-27.1174. The requirement to act in good
> faith extends to, but is not limited to, the preparation and
> submission of the documentation required\
> in (b).
>
> \(e\) *MSS Participation in the Clearinghouse.* MSS operators are not
> required to submit reimbursements to the clearinghouse for links
> relocated due to interference from MSS space-to-Earth downlink
> operations, but may elect to do so, in which case the MSS operator
> must identify the reimbursement claim as such and follow the
> applicable procedures governing reimbursement in Part 27. MSS
> reimbursement rights and cost-sharing obligations for space-to-Earth
> downlink operations are governed by § 101.82 of this chapter.
>
> \(f\) *Reimbursement for Self-relocating FMS links in the 2130-2150
> MHz and 2180-2200 MHz bands.* Where a voluntarily relocating microwave
> incumbent relocates a paired microwave link with paths in the
> 2130-2150 MHz and 2180-2200 MHz bands, it may not seek reimbursement
> from MSS operators (including MSS/ATC operators), but is entitled to
> partial reimbursement from the first AWS beneficiary, equal to fifty
> percent of its actual costs for relocating the paired link, or half of
> the reimbursement cap in § 27.1164(b), whichever is less. This amount
> is subject to depreciation as specified § 27.1164(b). An AWS licensee
> who is obligated to reimburse relocation costs under this rule is
> entitled to obtain reimbursement from other AWS beneficiaries in
> accordance with §§ 27.1164 and 27.1168. For purposes of applying the
> cost-sharing formula relative to other AWS licensees that benefit from
> the self-relocation, the fifty percent attributable to the AWS entrant
> shall be treated as the entire cost of the link relocation, and
> depreciation shall run from the date on which the clearinghouse issues
> the notice of an obligation to reimburse the voluntarily relocating
> microwave incumbent. The cost-sharing obligations for MSS operators in
> the 2180-2200 MHz band are governed by § 101.82 of this chapter.

**§ 27.1168 Triggering a Reimbursement Obligation.**

> \(a\) The clearinghouse will apply the following test to determine
> when an AWS entity or MSS/ATC entity has triggered a cost-sharing
> obligation and therefore must pay an AWS relocator, MSS relocator
> (including MSS/ATC), or a voluntarily relocating microwave incumbent
> in accordance with the formula detailed in § 27.1164:
>
> \(1\) All or part of the relocated microwave link was initially
> co-channel with the licensed AWS band(s) of the AWS entity or the
> selected assignment of the MSS operator that seeks and obtains ATC
> authority (see § 25.149(a)(2)(i) of this chapter);
>
> \(2\) An AWS relocator, MSS relocator (including MSS/ATC) or a
> voluntarily relocating microwave incumbent has paid the relocation
> costs of the microwave incumbent; and
>
> \(3\) The AWS or MSS entity is operating or preparing to turn on a
> fixed base station (including MSS/ATC) at commercial power and the
> fixed base station is located within a rectangle (Proximity Threshold)
> described as follows:
>
> \(i\) The length of the rectangle shall be x where x is a line
> extending through both nodes of the microwave link to a distance of 48
> kilometers (30 miles) beyond each node. The width of the rectangle
> shall be y where y is a line perpendicular to x and extending for a
> distance of 24 kilometers (15 miles) on both sides of x. Thus, the
> rectangle is represented as follows:
>
> ![](media/image2.png){width="3.6326388888888888in"
> height="2.004861111111111in"}
>
> \(ii\) If the application of the Proximity Threshold Test indicates
> that a reimbursement obligation exists, the clearinghouse will
> calculate the reimbursement amount in accordance with the cost-sharing
> formula and notify the AWS or MSS/ATC entity of the total amount of
> its reimbursement obligation.
>
> \(b\) Once a reimbursement obligation is triggered, the AWS or MSS/ATC
> entity may not avoid paying its cost-sharing obligation by
> deconstructing or modifying its facilities.

**§ 27.1170 Payment Issues.**

Prior to initiating operations for a newly constructed site or modified
existing site, an AWS entity or MSS/ATC entity is required to file a
notice containing site-specific data with the clearinghouse. The notice
regarding the new or modified site must provide a detailed description
of the proposed site's spectral frequency use and geographic location,
including but not limited to the applicant's name and address, the name
of the transmitting base station, the geographic coordinates
corresponding to that base station, the frequencies and polarizations to
be added, changed or deleted, and the emission designator. If a prior
coordination notice (PCN) under § 101.103(d) of this chapter is
prepared, AWS entities can satisfy the site-data filing requirement by
submitting a copy of their PCN to the clearinghouse. AWS entities or
MSS/ATC entities that file either a notice or a PCN have a continuing
duty to maintain the accuracy of the site-specific data on file with the
clearinghouse. Utilizing the site-specific data, the clearinghouse will
determine if any reimbursement obligation exists and notify the AWS
entity or MSS/ATC entity in writing of its repayment obligation, if any.
When the AWS entity or MSS/ATC entity receives a written copy of such
obligation, it must pay directly to the relocator the amount owed within
30 calendar days.

**§ 27.1172 Dispute Resolution Under the Cost-Sharing Plan.**

> \(a\) Disputes arising out of the cost-sharing plan, such as disputes
> over the amount of reimbursement required, must be brought, in the
> first instance, to the clearinghouse for resolution. To the extent
> that disputes cannot be resolved by the clearinghouse, parties are
> encouraged to use expedited Alternative Dispute Resolution (ADR)
> procedures, such as binding arbitration, mediation, or other ADR
> techniques.
>
> \(b\) *Evidentiary requirement.* Parties of interest contesting the
> clearinghouse's determination of specific cost-sharing obligations
> must provide evidentiary support to demonstrate that their calculation
> is reasonable and made in good faith. Specifically, these parties are
> expected to exercise due diligence to obtain the information necessary
> to prepare an independent estimate of the relocation costs in question
> and to file the independent estimate and supporting documentation with
> the clearinghouse.

**§ 27.1174 Termination of Cost-Sharing Obligations.**

The cost-sharing plan will sunset for all AWS and MSS (including
MSS/ATC) entities on the same date on which the relocation obligation
for the subject AWS band (*i.e.,* 2110-2150 MHz, 2160-2175 MHz, or
2175-2180 MHz) in which the relocated FMS link was located terminates.
AWS or MSS (including MSS/ATC) entrants that trigger a cost-sharing
obligation prior to the sunset date must satisfy their payment
obligation in full.

New Sections 27.1176 through 27.1190 are added to Subpart L to read as
follows:

**COST-SHARING POLICIES GOVERNING BROADBAND RADIO SERVICE RELOCATION
FROM THE 2150-2160/62 MHZ BAND**

**§ 27.1176 Cost-sharing requirements for AWS in the 2150-2160/62 MHz
band.**

> \(a\) Frequencies in the 2150-2160/62 MHz band have been reallocated
> from the Broadband Radio Service (BRS) to AWS. All AWS entities who
> benefit from another AWS entity's clearance of BRS incumbents from
> this spectrum, including BRS incumbents occupying the 2150-2162 MHz
> band on a primary basis, must contribute to such relocation costs.
> Only AWS entrants that relocate BRS incumbents are entitled to such
> reimbursement.
>
> \(b\) AWS entities may satisfy their reimbursement requirement by
> entering into private cost-sharing agreements or agreeing to terms
> other than those specified in § 27.1180. However, AWS entities are
> required to reimburse other AWS entities that incur relocation costs
> and are not parties to the alternative agreement. In addition, parties
> to a private cost-sharing agreement may seek reimbursement through the
> clearinghouse (as discussed in § 27.1178) from AWS entities that are
> not parties to the agreement. The cost-sharing plan is in effect
> during all phases of BRS relocation until the end of the period
> specified in § 27.1190. If an AWS licensee enters into a spectrum
> leasing arrangement and the spectrum lessee triggers a cost-sharing
> obligation, the licensee is the AWS entity responsible for satisfying
> cost-sharing obligations under these rules.

**§ 27.1178 Administration of the Cost-Sharing Plan**

The Wireless Telecommunications Bureau, under delegated authority, will
select one or more entities to operate as a neutral, not-for-profit
clearinghouse(s). This clearinghouse(s) will administer the cost-sharing
plan by, *inter alia*, determining the cost-sharing obligations of AWS
entities for the relocation of BRS incumbents from the 2150-2162 MHz
band. The clearinghouse filing requirements (see §§ 27.1182(a), 27.1186)
will not take effect until an administrator is selected.

**§ 27.1180 The cost-sharing formula**

> \(a\) An AWS licensee that relocates a BRS system with which it
> interferes is entitled to *pro rata* reimbursement based on the
> cost-sharing formula specified in § 27.1164, except that the
> depreciation factor shall be \[180 -- Tm\]/180, and the variable *C*
> shall be applied as set forth in paragraph (b).
>
> \(b\) *C* is the actual cost of relocating the system, and includes,
> but is not limited to, such items as: Radio terminal equipment (TX
> and/or RX\--antenna, necessary feed lines, MUX/Modems); towers and/or
> modifications; back-up power equipment; monitoring or control
> equipment; engineering costs (design/path survey); installation;
> systems testing; FCC filing costs; site acquisition and civil works;
> zoning costs; training; disposal of old equipment; test equipment
> (vendor required); spare equipment; project management; site lease
> renegotiation; required antenna upgrades for interference control;
> power plant upgrade (if required); electrical grounding systems;
> Heating Ventilation and Air Conditioning (HVAC) (if required);
> alternate transport equipment; leased facilities; and end user units
> served by the base station that is being relocated. In addition to
> actual costs, *C* may include the cost of an independent third party
> appraisal conducted pursuant to § 27.1182(a)(3) and incumbent
> transaction expenses that are directly attributable to the 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. There
> is no cap on the actual costs of relocation.
>
> \(c\) An AWS system shall be considered an interfering system for
> purposes of this rule if the AWS system is in all or part of the BRS
> frequency band and operates within line of sight to BRS operations
> under the applicable test specified in § 27.1184. An AWS relocator
> that relocates a BRS system with which it does not interfere is
> entitled to full reimbursement, as specified in § 27.1182(c).

**§ 27.1182 Reimbursement under the Cost-Sharing Plan**

> \(a\) *Registration of reimbursement rights.*
>
> \(1\) To obtain reimbursement, an AWS relocator must submit
> documentation of the relocation agreement to the clearinghouse within
> 30 calendar days of the date a relocation agreement is signed with an
> incumbent. In the case of involuntary relocation, an AWS relocator
> must submit documentation of the relocated system within 30 calendar
> days after the end of the one-year\
> trial period.
>
> \(2\) Registration of any BRS system shall include (i) a description
> of the system's frequency use; (ii) if the system exclusively provides
> one-way transmissions to subscribers, the Geographic Service Area of
> the system; and (iii) if the system does not exclusively provide
> one-way transmission to subscribers, the system hub antenna's
> geographic location and the above ground level height of the system's
> receiving antenna centerline. 
>
> \(3\) The AWS relocator must also include with its system registration
> an independent third party appraisal of the compensable relocation
> costs. The appraisal should be based on the actual cost of replacing
> the incumbent's system with comparable facilities and should exclude
> the cost of any equipment upgrades that are not necessary to the
> provision of comparable facilities. An AWS relocator may submit
> registration without a third party appraisal if it consents to binding
> resolution by the clearinghouse of any good faith cost disputes
> regarding the reimbursement claim, under the following standard: the
> relocator shall bear the burden of proof, and be required to
> demonstrate by clear and convincing evidence that its request does not
> exceed the actual cost of relocating the relevant BRS system or
> systems to comparable facilities. Failure to satisfy this burden of
> proof will result in loss of rights to subsequent reimbursement of the
> disputed costs from any\
> AWS licensee.
>
> \(b\) *Documentation of expenses.* Once relocation occurs, the AWS
> relocator must submit documentation itemizing the amount spent for
> items specifically listed in § 27.1180(b), as well as any reimbursable
> items not specifically listed in § 27.1180(b) that are directly
> attributable to actual relocation costs. Specifically, the AWS
> relocator must submit, in the first instance, only the uniform cost
> data requested by the clearinghouse along with copies, without
> redaction, of the relocation agreement, if any, and the third party
> appraisal described in (a)(3), if prepared. The AWS relocator must
> identify the particular system associated with appropriate expenses
> (*i.e.*, costs may not be averaged over numerous systems). If an AWS
> relocator pays a BRS incumbent a monetary sum to relocate its own
> facilities in whole or in part, the AWS relocator must itemize the
> actual costs to the extent determinable, and otherwise must estimate
> the actual costs associated with relocating the incumbent and itemize
> these costs. If the sum paid to the incumbent cannot be accounted for,
> the remaining amount is not eligible for reimbursement. All AWS
> relocators seeking reimbursement through the clearinghouse have an
> ongoing duty to maintain all relevant records of BRS
> relocation-related expenses until the sunset of cost-sharing
> obligations, and to provide, upon request, such documentation,
> including a copy of the independent appraisal if one was conducted, to
> the clearinghouse, the Commission, or AWS entrants that trigger a
> cost-sharing obligation.
>
> \(c\) *Full reimbursement.* An AWS relocator who relocates a BRS
> system that is either (1) wholly outside its frequency band or (2) not
> within line of sight of the relocator's transmitting base station may
> seek full reimbursement through the clearinghouse of compensable
> costs. Such reimbursement will not be subject to depreciation under
> the cost-sharing formula.
>
> \(d\) *Good Faith Requirement.* New entrants and incumbent licensees
> are expected to act in good faith in satisfying the cost-sharing
> obligations under §§ 27.1176-27.1190. The requirement to act in good
> faith extends to, but is not limited to, the preparation and
> submission of the documentation required\
> in (b).

**§ 27.1184 Triggering a reimbursement obligation.**

> \(a\) The clearinghouse will apply the following test to determine
> when an AWS entity has triggered a cost-sharing obligation and
> therefore must pay an AWS relocator of a BRS system in accordance with
> the formula detailed in § 27.1180:
>
> \(1\) All or part of the relocated BRS system was initially co-channel
> with the licensed AWS band(s) of the AWS entity;
>
> \(2\) An AWS relocator has paid the relocation costs of the BRS
> incumbent; and
>
> \(3\) The other AWS entity has turned on or is preparing to turn on a
> fixed base station at commercial power and the incumbent BRS system
> would have been within the line of sight of the AWS entity's fixed
> base station, as determined below.
>
> \(i\) For a BRS system using the 2150-2160/62 MHz band exclusively to
> provide one-way transmissions to subscribers, the clearinghouse will
> determine whether there is an unobstructed signal path (line of sight)
> to the incumbent licensee's geographic service area (GSA), based on
> the following criteria: use of 9.1 meters (30 feet) for the receiving
> antenna height, use of the actual transmitting antenna height and
> terrain elevation, and assumption of 4/3 Earth radius propagation
> conditions. Terrain elevation data must be obtained from the U.S.
> Geological Survey (USGS) 3-second database. All coordinates used in
> carrying out the required analysis shall be based upon use of NAD-83.
>
> \(ii\) For all other BRS systems using the 2150-2160/62 MHz band, the
> clearinghouse will determine whether there is an unobstructed signal
> path (line of sight) to the incumbent licensee's receive station hub
> using the method prescribed in "Methods for Predicting Interference
> from Response Station Transmitters and to Response Station Hubs and
> for Supplying Data on Response Station Systems. MM Docket 97-217," in
> Amendment of Parts 1, 21 and 74 to Enable Multipoint Distribution
> Service and Instructional Television Fixed Service Licensees to Engage
> in Fixed Two-Way Transmissions, MM Docket No. 97-217, *Report and
> Order on Further Reconsideration and Further Notice of Proposed
> Rulemaking*, 15 FCC Rcd 14566 at 14610, Appendix D.
>
> \(b\) If the application of the trigger test described above indicates
> that a reimbursement obligation exists, the clearinghouse will
> calculate the reimbursement amount in accordance with the cost-sharing
> formula and notify the subsequent AWS entity of the total amount of
> its reimbursement obligation.
>
> \(c\) Once a reimbursement obligation is triggered, the AWS entity may
> not avoid paying its cost-sharing obligation by deconstructing or
> modifying its facilities.

**§ 27.1186 Payment issues**

Payment of cost-sharing obligations for the relocation of BRS systems in
the 2150-60/62 MHz band is subject to the rules set forth in § 27.1170.
If an AWS licensee is initiating operations for a newly constructed site
or modified existing site in licensed bands overlapping the 2150-2160/62
MHz band, the AWS licensee must file with the clearinghouse, in addition
to the site-specific data required by § 27.1170, the above ground level
height of the transmitting antenna centerline. AWS entities have a
continuing duty to maintain the accuracy of the site-specific data on
file with the clearinghouse.

**§ 27.1188 Dispute resolution under the Cost-Sharing Plan**

> \(a\) Disputes arising out of the cost-sharing plan, such as disputes
> over the amount of reimbursement required, must be brought, in the
> first instance, to the clearinghouse for resolution. To the extent
> that disputes cannot be resolved by the clearinghouse, parties are
> encouraged to use expedited Alternative Dispute Resolution (ADR)
> procedures, such as binding arbitration, mediation, or other ADR
> techniques.
>
> \(b\) *Evidentiary requirement.* Parties of interest contesting the
> clearinghouse's determination of specific cost-sharing obligations
> must provide evidentiary support to demonstrate that their calculation
> is reasonable and made in good faith. Specifically, these parties are
> expected to exercise due diligence to obtain the information necessary
> to prepare an independent estimate of the relocation costs in question
> and to file the independent estimate and supporting documentation with
> the clearinghouse.

**§ 27.1190 Termination of cost-sharing obligations.**

The plan for cost-sharing in connection with BRS relocation will sunset
for all AWS entities fifteen years after the relocation sunset period
for BRS relocation commences, *i.e.*, fifteen years after the first AWS
licenses are issued in any part of the 2150-2162 MHz band. AWS entrants
that trigger a cost-sharing obligation prior to the sunset date must
satisfy their payment obligation in full.

6.  Part 27, Subpart M is revised by adding Sections 27.1250 through
    27.1255 to read as follows:

**RELOCATION PROCEDURES FOR THE 2150-2160/62 MHZ BAND**

**§ 27.1250 Transition of the 2150-2160/62 MHz band from the Broadband
Radio Service to the Advanced Wireless Service.**

The 2150-2160/62 MHz band has been allocated for use by the Advanced
Wireless Service (AWS). The rules in this section provide for a
transition period during which AWS licensees may relocate existing
Broadband Radio Service (BRS) licensees using these frequencies to their
assigned frequencies in the 2496-2690 MHz band or other media.

> \(a\) AWS licensees and BRS licensees shall engage in mandatory
> negotiations for the purpose of agreeing to terms under which the BRS
> licensees would:
>
> \(1\) Relocate their operations to other frequency bands or other
> media; or alternatively
>
> \(2\) Accept a sharing arrangement with the AWS licensee that may
> result in an otherwise impermissible level of interference to the BRS
> operations.
>
> \(b\) If no agreement is reached during the mandatory negotiation
> period, an AWS licensee may initiate involuntary relocation
> procedures. Under involuntary relocation, the incumbent is required to
> relocate, provided that the AWS licensee meets the conditions of §
> 27.1252.
>
> \(c\) Relocation of BRS licensees by AWS licensees will be subject to
> a three-year mandatory negotiation period. BRS licensees may suspend
> the running of the three-year negotiation period for up to one year if
> the BRS licensee cannot be relocated to comparable facilities at the
> time the AWS licensee seeks entry into the band.

**§ 27.1251 Mandatory Negotiations.**

> \(a\) Once mandatory negotiations have begun, a BRS 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. The BRS licensee is required to cooperate with an AWS
> licensee's request to provide access to the facilities to be
> relocated, other than the BRS customer location, so that an
> independent third party can examine the BRS system and prepare an
> appraisal of the costs to relocate the incumbent. In evaluating claims
> that a party has not negotiated in good faith, the FCC will consider,
> *inter alia*, the following factors:
>
> \(1\) Whether the AWS licensee has made a bona fide offer to relocate
> the BRS licensee to comparable facilities in accordance with §
> 27.1252(b);
>
> \(2\) If the BRS licensee has demanded a premium, the type of premium
> requested (*e.g.*, whether the premium is directly related to
> relocation, such as 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.
>
> \(b\) 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.
>
> \(c\) Mandatory negotiations will commence for each BRS licensee when
> the AWS licensee informs the BRS licensee in writing of its desire to
> negotiate. Mandatory negotiations will be conducted with the goal of
> providing the BRS licensee with comparable facilities, defined as
> facilities possessing the following characteristics:
>
> \(1\) *Throughput*. Communications throughput is the amount of
> information transferred within a system in a given amount of time.
> System is defined as a base station and all end user units served by
> that base station. If analog facilities are being replaced with
> analog, comparable facilities may provide a comparable number of
> channels. If digital facilities are being replaced with digital,
> comparable facilities provide equivalent data loading bits per second
> (bps).
>
> \(2\) *Reliability*. System reliability is the degree to which
> information is transferred accurately within a system. Comparable
> facilities provide reliability equal to the overall reliability of the
> BRS system. For digital systems, reliability is measured by the
> percent of time the bit error rate (BER) exceeds a desired value, and
> for analog or digital video transmission, it is measured by whether
> the end-to-end transmission delay is within the required delay bound.
> If an analog system is replaced with a digital 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 BRS system. AWS licensees would compensate BRS licensees
> for any increased recurring costs associated with the replacement
> facilities (*e.g.*, additional rental payments, and increased utility
> fees) for five years after relocation. AWS licensees could satisfy
> this obligation by making a lump-sum payment based on present value
> using current interest rates. Additionally, the maintenance costs to
> the BRS licensee would be equivalent to the replaced system in order
> for the replacement system to be comparable.
>
> \(d\) AWS licensees are responsible for the relocation costs of end
> user units served by the BRS base station that is being relocated. If
> a lessee is operating under a BRS license, the BRS licensee may rely
> on the throughput, reliability, and operating costs of facilities in
> use by a lessee in negotiating comparable facilities and may include
> the lessee in negotiations.

**§ 27.1252 Involuntary Relocation Procedures.**

> \(a\) If no agreement is reached during the mandatory negotiation
> period, an AWS licensee may initiate involuntary relocation procedures
> under the Commission's rules. AWS licensees are obligated to pay to
> relocate BRS systems to which the AWS system poses an interference
> problem. Under involuntary relocation, the BRS licensee is required to
> relocate, provided that the AWS licensee:
>
> \(1\) 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 BRS 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. There is no cap on the actual
> costs of relocation. AWS licensees are not required to pay BRS
> licensees for internal resources devoted to the relocation process.
> AWS licensees are not required to pay for transaction costs incurred
> by BRS licensees during the mandatory period once the involuntary
> period is initiated, or for fees that cannot be legitimately tied to
> the provision of comparable facilities; and
>
> \(2\) Completes 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 microwave frequencies
> and frequency coordination.
>
> \(b\) Comparable facilities. The replacement system provided to an
> incumbent during an involuntary relocation must be at least equivalent
> to the existing BRS 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.
> System is defined as a base station and all end user units served by
> that base station. If analog facilities are being replaced with
> analog, the AWS licensee is required to provide the BRS licensee with
> a comparable number of channels. If digital facilities are being
> replaced with digital, the AWS licensee must provide the BRS licensee
> with equivalent data loading bits per second (bps). AWS licensees must
> provide BRS licensees with enough throughput to satisfy the BRS
> licensee's system use at the time of relocation, not match the total
> capacity of the BRS system.
>
> \(2\) *Reliability*. System reliability is the degree to which
> information is transferred accurately within a system. AWS licensees
> must provide BRS 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 video transmissions, it is
> measured by whether the end-to-end transmission delay is within the
> required delay bound.
>
> \(3\) *Operating costs*. Operating costs are the cost to operate and
> maintain the BRS system. AWS licensees must compensate BRS licensees
> for any increased recurring costs associated with the replacement
> facilities (*e.g.,* additional rental payments, increased utility
> fees) for five years after relocation. AWS 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 BRS
> licensee must be equivalent to the replaced system in order for the
> replacement system to be considered comparable.
>
> \(c\) AWS licensees are responsible for the relocation costs of end
> user units served by the BRS base station that is being relocated. If
> a lessee is operating under a BRS license, the AWS licensee shall on
> the throughput, reliability, and operating costs of facilities in use
> by a lessee at the time of relocation in determining comparable
> facilities for involuntary relocation purposes.
>
> \(d\) *Twelve-month trial period*. If, within one year after the
> relocation to new facilities, the BRS licensee demonstrates that the
> new facilities are not comparable to the former facilities, the AWS
> licensee must remedy the defects or pay to relocate the BRS 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 (b) of
> this section. This trial period commences on the date that the BRS
> licensee begins full operation of the replacement system. If the BRS
> 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.

**§ 27.1253 Sunset Provisions.**

> \(a\) BRS licensees will maintain primary status in the 2150-2160/62
> MHz band unless and until an AWS licensee requires use of the
> spectrum. AWS licensees are not required to pay relocation costs after
> the relocation rules sunset (*i.e.* fifteen years from the date the
> first AWS license is issued in the band). Once the relocation rules
> sunset, an AWS licensee may require the incumbent to cease operations,
> provided that the AWS licensee intends to turn on a system within
> interference range of the incumbent, as determined by § 27.1255. AWS
> licensee notification to the affected BRS 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 BRS
> licensee must turn its license back into the Commission, unless the
> parties have entered into an agreement which allows the BRS licensee
> to continue to operate on a mutually agreed upon basis.
>
> \(b\) 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.

**§ 27.1254 Eligibility.**

> \(a\) BRS licensees with primary status in the 2150-2162 MHz band as
> of \[**effective date of Ninth R&O**\] will be eligible for relocation
> insofar as they have facilities that are constructed and in use as of
> this date.
>
> \(b\) *Future Licensing and Modifications.* After \[**effective date
> of Ninth R&O**\], all major modifications to existing BRS systems in
> use in the 2150-2160/62 MHz band will be authorized on a secondary
> basis to AWS systems, unless the incumbent affirmatively justifies
> primary status and the incumbent BRS licensee establishes that the
> modification would not add to the relocation costs of AWS licensees.
> Major modifications include the following:
>
> \(1\) Additions of new transmit sites or base stations made after
> \[**effective date of Ninth R&O**\];
>
> \(2\) Changes to existing facilities made after \[**effective date of
> Ninth R&O**\] that would increase the size or coverage of the service
> area, or interference potential, and that would also increase the
> throughput of an existing system (*e.g.,* sector splits in the antenna
> system). Modifications to fully utilize the existing throughput of
> existing facilities (*e.g.,* to add customers) will not be considered
> major modifications even if such changes increase the size or coverage
> of the service area, or interference potential.

**§ 27.1255 Relocation Criteria for Broadband Radio Service Licensees in
the 2150-2160/62 MHz band.**

> \(a\) An AWS licensee in the 2150-2160/62 MHz band, prior to
> initiating operations from any base or fixed station that is
> co-channel to the 2150-2160/62 MHz band, must relocate any incumbent
> BRS system that is within the line of sight of the AWS licensee's base
> or fixed station. For purposes of this section, a determination of
> whether an AWS facility is within the line of sight of a BRS system
> will be made as follows:
>
> \(1\) For a BRS system using the 2150-2160/62 MHz band exclusively to
> provide one-way transmissions to subscribers, the AWS licensee will
> determine whether there is an unobstructed signal path (line of sight)
> to the incumbent licensee's geographic service area (GSA), based on
> the following criteria: use of 9.1 meters (30 feet) for the receiving
> antenna height, use of the actual transmitting antenna height and
> terrain elevation, and assumption of 4/3 Earth radius propagation
> conditions. Terrain elevation data must be obtained from the U.S.
> Geological Survey (USGS) 3-second database. All coordinates used in
> carrying out the required analysis shall be based upon use of NAD-83.
>
> \(2\) For all other BRS systems using the 2150-2160/62 MHz band, the
> AWS licensee will determine whether there is an unobstructed signal
> path (line of sight) to the incumbent licensee's receive station hub
> using the method prescribed in "Methods for Predicting Interference
> from Response Station Transmitters and to Response Station Hubs and
> for Supplying Data on Response Station Systems. MM Docket 97-217," in
> Amendment of Parts 1, 21 and 74 to Enable Multipoint Distribution
> Service and Instructional Television Fixed Service Licensees to Engage
> in Fixed Two-Way Transmissions, MM Docket No. 97-217, *Report and
> Order on Further Reconsideration and Further Notice of Proposed
> Rulemaking*, 15 FCC Rcd 14566 at 14610, Appendix D.
>
> \(b\) Any AWS licensee in the 2110-2180 MHz band that causes actual
> and demonstrable interference to a BRS licensee in the 2150-2160/62
> MHz band must take steps to eliminate the harmful interference, up to
> and including relocation of the BRS licensee, regardless of whether it
> would be required to do so under paragraph (a), above.

\* \* \* \* \*

**PART 101 -- FIXED MICROWAVE SERVICES**

7.  The authority citation for Part 101 continues to read as follows:

AUTHORITY: 47 U.S.C. 154, 303.

8.  Section 101.69 is amended by removing and reserving paragraphs (b)
    and (c) and adding paragraph (g) to read as follows:

**§** **101.69 Transition of the 1850-1990 MHz, 2110-2150 MHz, and
2160-2200 MHz bands from the fixed microwave services to personal
communications services and emerging technologies.**

> \*\*\*
>
> \(b\) \[Reserved\]
>
> \(c\) \[Reserved\]
>
> \* \* \*
>
> \(g\) If no agreement is reached during the mandatory negotiation
> period, an ET licensee may initiate involuntary relocation procedures.
> Under involuntary relocation, the incumbent is required to relocate,
> provided that the ET licensee meets the conditions of § 101.75.

9.  Section 101.71 is reserved.

**§ 101.71 \[Reserved\]**

10. Section 101.73 is amended by revising paragraphs (a) and (d) to read
    as follows:

**§** **101.73 Mandatory Negotiations.**

> \(a\) A mandatory negotiation period may be initiated at the option of
> the ET licensee. Relocation of FMS licensees by Mobile Satellite
> Service (MSS) operators (including MSS operators providing Ancillary
> Terrestrial Component (ATC) service) and AWS licensees in the
> 2110-2150 MHz and 2160-2200 MHz bands will be subject to mandatory
> negotiations only.
>
> \* \* \*
>
> \(d\) *Provisions for Relocation of Fixed Microwave Licensees in the
> 2110-2150 and 2160-2200 MHz bands.* Except as otherwise provided in
> §101.69(e) pertaining to FMS relocations by MSS/ATC operators, a
> separate mandatory negotiation period will commence for each FMS
> licensee when an ET licensee informs that FMS licensee in writing of
> its desire to negotiate. Mandatory negotiations will be conducted with
> the goal of providing the FMS licensee with comparable facilities
> defined as facilities possessing the following characteristics: \*\*\*
>
> \*\*\*\*\*

11. Section 101.75 is amended by revising paragraph (a) to read as
    follows:

**§** **101.75 Involuntary relocation procedures.**

> \(a\) If no agreement is reached during the mandatory negotiation
> period, an ET licensee may initiate involuntary relocation procedures
> under the Commission's rules. \*\*\*
>
> \*\*\*\*\*

12. Section 101.77 is amended by revising paragraph (a) to read as
    follows:

**§** **101.77 Public safety licensees in the 1850-1990 MHz, 2110-2150
MHz, and 2160-2200 MHz bands.**

> \(a\) In order for public safety licensees to qualify for a three year
> mandatory negotiation period as defined in § 101.69(d)(2), the
> department head responsible for system oversight must certify to the
> ET licensee requesting relocation that: \*\*\*
>
> \*\*\*\*\*

13. Section 101.79 is amended by revising paragraph (a) to read as
    follows:

**§** **101.79 Sunset provisions for licensees in the 1850-1990 MHz,
2110-2150 MHz, and 2160-2200 MHz bands.**

> \(a\) FMS licensees will maintain primary status in the 1850--1990
> MHz, 2110--2150 MHz, and 2160--2200 MHz bands unless and until an ET
> licensee (including MSS/ATC operator) requires use of the spectrum. ET
> licensees are not required to pay relocation costs after the
> relocation rules sunset. 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 (for
> terrestrial-to-terrestrial situations) or TIA TSB 86 (for MSS
> satellite-to-terrestrial situations) or any standard successor. ET
> licensee notification to the affected FMS 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 FMS
> licensee must turn its license back into the Commission, unless the
> parties have entered into an agreement which allows the FMS licensee
> to continue to operate on a mutually agreed upon basis. The date that
> the relocation rules sunset is determined as follows:
>
> \(1\) For the 2110-2150 MHz and 2160-2175 MHz and 2175-2180 MHz bands,
> ten years after the first ET license is issued in the respective band;
> and
>
> \(2\) For the 2180--2200 MHz band, December 8, 2013 (*i.e.,* ten years
> after the mandatory negotiation period begins for MSS/ATC operators in
> the service).
>
> \*\*\*\*\*

14. Section 101.82 is amended to read as follows:

**§** **101.82 Reimbursement and relocation expenses in the 2110-2150
MHz and 2160-2200 MHz bands.**

> \(a\) Reimbursement and relocation expenses for the 2110-2130 MHz and
> 2160-2180 MHz bands are addressed in §§ 27.1160 -- 27.1174.
>
> \(b\) *Cost-sharing obligations between AWS and MSS (space-to-Earth
> downlink)*. Whenever an ET licensee (AWS or Mobile Satellite Service
> for space-to-Earth downlink in the 2130--2150 or 2180--2200 MHz bands)
> relocates an incumbent paired microwave link with one path in the
> 2130--2150 MHz band and the paired path in the 2180--2200 MHz band,
> the relocator is entitled to reimbursement of 50 percent of its
> relocation costs (see paragraph (e)) from any other AWS licensee or
> MSS space-to-Earth downlink operator which would have been required to
> relocate the same fixed microwave link as set forth in paragraphs (c)
> and (d).
>
> \(c\) *Cost-sharing obligations for MSS (space-to-Earth downlinks)*.
> For an MSS space-to-Earth downlink, the cost-sharing obligation is
> based on the interference criteria for relocation, *i.e.,* TIA TSB 86
> or any standard successor, relative to the relocated microwave link.
> Subsequently entering MSS space-to-Earth downlink operators must
> reimburse AWS or MSS space-to-Earth relocators (see paragraph (e))
> before the later entrant may begin operations in these bands, unless
> the later entrant can demonstrate that it would not have interfered
> with the microwave link in question.
>
> \(d\) *Cost-sharing obligations among terrestrial stations*. For
> terrestrial stations (AWS and MSS Ancillary Terrestrial Component
> (ATC)), cost-sharing obligations are governed by §§ 27.1160 -- 27.1174
> of this chapter; provided, however, that MSS operators (including
> MSS/ATC operators) are not obligated to reimburse voluntarily
> relocating FMS incumbents in the 2180-2200 MHz band. (AWS
> reimbursement and cost-sharing obligations relative to voluntarily
> relocating FMS incumbents are governed by § 27.1166 of this chapter).
>
> \(e\) The total costs of which 50 percent is to be reimbursed will not
> exceed \$250,000 per paired fixed microwave link relocated, with an
> additional \$150,000 permitted if a new or modified tower is required.

\*\*\*\*\*

**APPENDIX B**

**FINAL REGULATORY FLEXIBILITY ANALYSIS**

(*For Ninth Report and Order*)

As required by the Regulatory Flexibility Act, as amended (RFA),[^409]
an Initial Regulatory Flexibility Analysis (IRFA) was incorporated in
the *Fifth Notice of Proposed Rule Making* (*Fifth Notice*) in ET Docket
00-258.[^410] The Commission sought written public comment on the
proposals in the *Fifth Notice*, including comment on the IRFA. This
Final Regulatory Flexibility Analysis (FRFA) conforms to the RFA.[^411]

## Need for, and Objectives of, the Ninth Report and Order 

The *Ninth Report and Order* (*Ninth R&O*) adopts relocation procedures
to govern the relocation of: (1) Broadband Radio Service (BRS)[^412]
licensees in the 2150-2160/62 MHz band; and (2) Fixed Microwave Service
(FS) licensees in the 2110-2150 MHz and 2160-2180 MHz bands. The *Ninth
R&O* also adopts cost sharing rules that identify the reimbursement
obligations for Advanced Wireless Service (AWS) and Mobile Satellite
Service (MSS) entrants benefiting from the relocation of FS operations
in the 2110-2150 MHz band 2160-2200 MHz band and AWS entrants benefiting
from the relocation of BRS operations in the 2150-2160/62 MHz band. The
adopted relocation and cost sharing procedures generally follow the
Commission's relocation and cost sharing policies delineated in the
*Emerging Technologies* proceeding, and as modified by subsequent
decisions.[^413] These relocation policies are designed to allow early
entry for new technology providers by allowing providers of new services
to negotiate financial arrangements for reaccommodation of incumbent
licensees, and have been tailored to set forth specific relocation
schemes appropriate for a variety of different new entrants, including
AWS, MSS, Personal Communications Service (PCS) licensees, 18 GHz Fixed
Satellite Service (FSS) licensees, and Sprint Nextel. While these new
entrants occupy different frequency bands, each entrant has had to
relocate incumbent operations. The relocation and cost sharing
procedures we adopt in the *Ninth R&O* are designed to ensure an orderly
and expeditious transition of, with minimal disruption to, incumbent BRS
operations from the 2150-2160/62 MHz band and FS operations from the
2110-2150 MHz and 2160-2180 MHz bands, in order to allow early entry for
new AWS licensees into these bands.

## Summary of Significant Issues Raised by Public Comments in Response to the IRFA

One comment was filed in response to the *Order* portion of the *Eighth
Report and Order, Fifth Notice of Proposed Rule Making and Order*,
objecting to the suggestion by some commenters to the *Fifth Notice*
that the BRS entities should submit an estimate of the costs necessary
to relocate the BRS entities' stations. The Wireless Communications
Association International, Inc. objects to the imposition of any future
information disclosure obligations on BRS channel 1 and 2 licensees
regarding their relocation costs because it would require BRS licensees
to speculate as to future events, conduct extensive due diligence to
identify information that is not presently within their possession, or
provide AWS auction participants with commercially sensitive information
that could be utilized by AWS auction winners to the detriment of BRS
licensees and lessees. In this *Ninth R&O*, the Commission decides not
to require BRS licensees to submit an estimate of their relocation
costs. Accordingly, we need not further address WCA's comments for
purposes of this FRFA.

## Description and Estimate of the Number of Small Entities To Which Rules Will Apply

The RFA directs agencies to provide a description of and, where
feasible, an estimate of the number of entities that will be affected by
the rules adopted herein.[^414] The RFA defines the term "small entity"
as having the same meaning as the terms "small business," "small
organization," and "small governmental jurisdiction."[^415] In addition,
the term "small business" has the same meaning as the term "small
business concern" under the Small Business Act, unless the Commission
has developed one or more definitions that are appropriate to its
activities.[^416] Under the Small Business Act, a "small business
concern" is one that: (1) is independently owned and operated; (2) is
not dominant in its field of operation; and (3) meets any additional
criteria established by the Small Business Administration (SBA).[^417]

*Broadband Radio Service.* The Broadband Radio Service (BRS) consists of
Multichannel Multipoint Distribution Service (MMDS) systems, which were
originally licensed to transmit video programming to subscribers using
the microwave frequencies of Multipoint Distribution Service (MDS) and
Instructional Television Fixed Service (ITFS).[^418] In connection with
the 1996 MDS auction, the Commission defined "small business" as an
entity that, together with its affiliates, has average gross annual
revenues that are not more than \$40 million for the preceding three
calendar years. The SBA has approved of this standard.[^419] The MDS
auction resulted in 67 successful bidders obtaining licensing
opportunities for 493 Basic Trading Areas (BTAs).[^420] Of the 67
auction winners, 61 claimed status as a small business. At this time, we
estimate that of the 61 small business MDS auction winners, 48 remain
small business licensees. In addition to the 48 small businesses that
hold BTA authorizations, there are approximately 392 incumbent MDS
licensees that have gross revenues that are not more than \$40 million
and are thus considered small entities.[^421]

In addition, the SBA has developed a small business size standard for
Cable and Other Program Distribution,[^422] which includes all such
companies generating \$13.5 million or less in annual receipts.[^423]
According to Census Bureau data for 1997, there were a total of 1,311
firms in this category that had operated for the entire year.[^424] Of
this total, 1,180 firms had annual receipts of under \$10 million, and
an additional 52 firms had receipts of \$10 million or more but less
than \$25 million.[^425] Consequently, we estimate that the majority of
providers in this service category are small businesses that may be
affected by the proposed rules and policies. Because the Commission's
action only affects MDS operations in the 2155-2160/62 MHz band, the
actual number of MDS providers who will be affected by the proposed
reallocation will only represent a small fraction of these small
businesses.

*Fixed Microwave Services*. Microwave services include common
carrier,[^426] private-operational fixed,[^427] and broadcast auxiliary
radio services.[^428] At present, there are approximately 36,708 common
carrier fixed licensees and 59,291 private operational-fixed licensees
and broadcast auxiliary radio licensees in the microwave services. The
Commission has not yet defined a small business with respect to
microwave services. For purposes of the FRFA, we will use the SBA's
definition applicable to Cellular and other Wireless Telecommunications
companies -- *i.e.*, an entity with no more than 1,500 persons.[^429]
According to Census Bureau data for 1997, there were 977 firms in this
category, total, that operated for the entire year.[^430] Of this total,
965 firms had employment of 999 or fewer employees, and an additional
twelve firms had employment of 1,000 employees or more.[^431] Thus,
under this size standard, majority of firms can be considered small. We
note that the number of firms does not necessarily track the number of
licensees. We estimate that all of the Fixed Microwave licensees
(excluding broadcast auxiliary licensees) would qualify as small
entities under the SBA definition.

*Advanced Wireless Service (AWS).* We do not yet know how many
applicants or licensees in the 2110-2150 MHz and 2160-2200 MHz bands
will be small entities. Thus, the Commission assumes, for purposes of
this FRFA, that all prospective licensees are small entities as that
term is defined by the SBA or by our two special small business size
standards for these bands. Although we do not know for certain which
entities are likely to apply for these frequencies, we note that the AWS
bands are comparable to those used for cellular service and personal
communications service.

*Wireless Telephony Including Cellular, Personal Communications Service
(PCS) and SMR Telephony Carriers*. The SBA has developed a small
business size standard for wireless small businesses within the two
separate categories of *Paging*[^432] and *Cellular and Other Wireless
Telecommunications*. [^433] Under both SBA categories, a wireless
business is small if it has 1,500 or fewer employees. According to the
Commission's most recent data,[^434] 1,012 companies reported that they
were engaged in the provision of wireless service. Of these 1,012
companies, an estimated 829 have 1,500 or fewer employees and 183 have
more than 1,500 employees.[^435] Consequently, the Commission estimates
that most wireless service providers are small entities that may be
affected by the rules and policies adopted herein.

*Mobile Satellite Service*. There are currently two space-station
authorizations for Mobile Satellite Service (MSS) systems that would
operate with 2 GHz mobile Earth stations. Although we know the number
and identity of the space-station operators, neither the number nor the
identity of future 2 GHz mobile-Earth-station licensees can be
determined from that data. The Commission notes that small businesses
are not likely to have the financial ability to become MSS system
operators because of the high implementation costs, including
construction of satellite space stations and rocket launch, associated
with satellite systems and services.

## Description of Projected Reporting, Record Keeping, and Other Compliance Requirements for Small Entities

The *Ninth R&O* adopts relocation and cost-sharing procedures applicable
to AWS licensees relative to incumbent BRS licensees in the 2150-2160/62
MHz band and incumbent FS licensees in the 2110-2130 MHz and 2160-2180
MHz bands, and AWS and MSS/ATC relative to incumbent FS licensees in the
2130-2150 MHz and 2180-2200 MHz bands, but does not adopt service rules.
The *Ninth R&O* includes requirements for interference analyses (for FS)
and line-of-sight determinations (for BRS), as well as good faith
negotiations for relocation purposes. All AWS entities that benefit from
the clearance of this spectrum by other AWS entities or by a voluntarily
relocating microwave incumbent must contribute to such relocation costs.
AWS entities may satisfy their reimbursement requirement by entering
into private cost-sharing agreements. These negotiations are likely to
require the skills of accountants and engineers to evaluate the economic
and technical requirements of relocation. AWS entities are required to
reimburse other AWS entities or voluntarily relocating microwave
incumbents that incur relocation costs and are not parties to the
alternative agreement. In addition, parties to a private cost-sharing
agreement may seek reimbursement through the clearinghouse. To obtain
reimbursement, the relocator must submit documentation itemizing
relocation costs to the clearinghouse in the form of uniform cost data
along with a copy, without redaction, of the relocation agreement, if
relocation was undertaken pursuant to a negotiated contract. A third
party appraisal of relocation costs must be prepared and submitted to
the clearinghouse by AWS relocators of BRS systems and by voluntarily
relocating microwave incumbents. AWS relocators, MSS/ATC relocators and
voluntarily relocating microwave incumbents must maintain documentation
of cost-related issues until the applicable sunset date and provide such
documentation upon request, to the clearinghouse, the Commission, or
entrants that trigger a cost sharing obligation.

AWS entities and MSS/ATC operators are required to file a notice
containing site-specific data with the clearinghouse prior to initiating
operations in the subject bands for newly constructed sites and for
modified existing sites. However, AWS entities and MSS/ATC operators may
satisfy this requirement by submitting a prior coordination notice (PCN)
to the clearinghouse if a PCN was prepared in order to comply with
coordination requirements previously adopted by the Commission. AWS
entities and MSS/ATC operators that file either a notice or a PCN have a
continuing duty to maintain the accuracy of the site-specific data on
file with the clearinghouse until the sunset date specified in the
Commission's Rules. AWS entities and MSS/ATC operators must pay the
amount owed within 30 calendar days of receiving written notification of
an outstanding reimbursement obligation. Parties of interest contesting
the clearinghouse's determination of specific cost sharing obligations
must provide evidentiary support to demonstrate that their calculation
is reasonable and made in good faith. Specifically, these parties are
expected to exercise due diligence to obtain the information necessary
to prepare an independent estimate of the relocation costs in question
and to file the independent estimate and supporting documentation with
the clearinghouse.

## Steps Taken to Minimize Significant Economic Impact on Small Entities and Significant Alternatives Considered

The RFA requires an agency to describe any significant alternatives that
it has considered in reaching its proposed approach, which may include
the following four alternatives (among others): "(1) the establishment
of differing compliance or reporting requirements or timetables that
take into account the resources available to small entities; (2) the
clarification, consolidation, or simplification of compliance or
reporting requirements under the rule for small entities; (3) the use of
performance rather than design standards; and (4) an exemption from
coverage of the rule, or any part thereof, for\
small entities."[^436]

In this *Ninth R&O*, the Commission decides to adopt relocation and cost
sharing rules that are designed to support the introduction of AWS, with
minimal disruption to incumbent BRS and FS operations, because doing so
will promote the rapid deployment of efficient radio communications but
won't interrupt incumbents' provision of service to subscribers. An
alternative option would have been to offer no relocation or cost
sharing processes, and instead require incumbent licensees to cease use
of the band by a date certain and prohibit new licensees from entering
the band until that date. We believe that an *Emerging
Technologies*-based relocation and cost sharing procedure is preferable,
as it draws on established and well known principles (such as time-based
negotiation periods and the requirement of negotiating in good faith),
benefits small BRS and FS licensees because the proposals would require
new AWS licensees to pay for the costs to relocate their incumbent
operations to comparable facilities, and -- for small AWS licensees --
offers a process by which new services can be brought to the market
expeditiously. Moreover, we believe that the provision of additional
spectrum that can be used to support AWS will directly benefit small
business entities by providing new opportunities for the provision of
innovative new fixed and mobile wireless services.

In the *Ninth R&O*, the Commission also avoids imposing additional
burdens on licensees by adopting rules that permit, to the extent
practicable, licensees to satisfy certain requirements by using
documents that are prepared in compliance with other Commission Rules.
For example, AWS entities and MSS/ATC operators are required to file a
notice containing site-specific data with the clearinghouse prior to
initiating operations in the subject bands for newly constructed sites
and for modified existing sites. However, AWS entities and MSS/ATC
operators may satisfy this requirement by submitting a prior
coordination notice (PCN) to the clearinghouse if a PCN was prepared in
order to comply with coordination requirements previously adopted by the
Commission. In addition, the *Ninth R&O* adopts a rule that allows an
AWS relocator of a BRS system to avoid incurring the costs of preparing
and submitting a third party appraisal of relocation costs if it
consents to binding resolution by the clearinghouse of any good faith
cost disputes regarding the reimbursement claim.

A.  **Report to Congress**

The Commission will send a copy of the *Ninth R&O*, including this FRFA,
in a report to be sent to Congress pursuant to the Congressional Review
Act.[^437] In addition, the Commission will send a copy of the *Ninth
R&O*, including the FRFA, to the Chief Counsel for Advocacy of the SBA.
A copy of the *Ninth R&O* and the FRFA (or summaries thereof) will also
be published in the Federal Register.[^438]

**APPENDIX C**

**LIST OF COMMENTERS AND REPLY COMMENTERS**

**[Commenters to Fifth Notice of Proposed Rulemaking (ET Docket No.
00-258)]{.underline}**

[Comments]{.underline}

SpeedNet, LLC ("SpeedNet")

Verizon Wireless ("Verizon Wireless")

TMI Communications and Company, LP and TerreStar Networks, Inc.
("TMI/TerreStar")

BellSouth Corp., BellSouth Wireless Cable, Inc., and South Florida
Television, Inc. (collectively, "BellSouth")

CTIA -- The Wireless Association ("CTIA")

T-Mobile USA, Inc. ("T-Mobile")

PCIA, the Wireless Infrastructure Association ("PCIA")

C&W Enterprises, Inc. ("C&W")

Wireless Communications Association International, Inc. ("WCA")

Comsearch ("Comsearch")

Sprint Nextel Corp. ("Sprint Nextel")

Letter Comments (6)

[Reply Comments]{.underline}

Radiofone ("Radiofone")

ArrayComm, LLC ("ArrayComm")

SpeedNet

WCA

T-Mobile

United States Cellular Corp. ("US Cellular")

Sprint Nextel

Sioux Valley Wireless ("Sioux Valley Wireless")

Polar Communications and Northern Wireless Communications, Inc.
("Polar/Northern Wireless")

PCIA

Evertek, Inc. ("Evertek")

Comsearch

CTIA

C&W

BellSouth

W.A.T.C.H. TV Co. ("W.A.T.C.H. TV")

**STATEMENT OF**

**COMMISSIONER JONATHAN S. ADELSTEIN**

*Re: Amendment of Part 2 of the Commission's Rules to Allocate Spectrum
Below 3 GHz for Mobile and Fixed Services to Support the Introduction of
New Advanced Wireless Services, including Third Generation Wireless
Systems; Ninth Report and Order; ET Docket No. 00-258*

I am pleased to support this item because it puts in place important
relocation procedures that will apply to a number of services in the 2.1
GHz band, in particular Broadband Radio Service (BRS) licensees in the
2150-2160/62 MHz band. Our decision is particularly significant because
the adopted procedures are another important step in our efforts to
prepare for the upcoming Advanced Wireless Services (AWS) auction later
this summer, as a subgroup of AWS licensees ultimately will be
responsible for relocation of these BRS operators.

While we generally adopt our Emerging Technology (ET) polices for
relocation that have served the Commission so well over the past decade,
we make a number of important adjustments to this overall structure to
reflect the specific types of services offered by existing BRS
operators. For example, we will allow BRS incumbents to fully use
existing throughput by adding customers even if such changes would
increase the size of service area subject to relocation. We also will
require that BRS operators be relocated on a system-by-system basis, not
link by link as we have done with other relocation efforts. These are
important changes to our ET policies that were critical for my support
of our decision today. I very much appreciate the effort of our Office
of Engineering and Technology staff in crafting this carefully balanced
item that considers the needs and requirements of both new AWS entrants
and current BRS licensees with operational subscriber-based systems.

I do have one lingering concern, though, because we were unable to adopt
self-relocation procedures that would have allowed BRS operators to
initiate involuntary relocation after some type of waiting period.
Self-relocation procedures have proven to be a useful tool in promoting
timely and prompt spectrum relocation proceedings in the past. I am
hopeful that my concerns are misplaced and that relocation will occur on
an expedited basis notwithstanding our lack of a self-relocation policy.

**STATEMENT OF**

**COMMISSIONER DEBORAH TAYLOR TATE**

Re: *Amendment of Part 2 of the Commission\'s Rules to Allocate Spectrum
Below 3 GHz for Mobile and Fixed Services to Support the Introduction of
New Advanced Wireless Services, including Third Generation Wireless
Systems (ET Docket No. 00-258); Service Rules for Advanced Wireless
Services in the 1.7 GHz and 2.1 GHz Bands (WT Docket No. 02-353).*

Advanced Wireless Services (AWS) are new and innovative fixed and mobile
terrestrial wireless applications using bandwidth that is sufficient for
the provision of a variety of voice and data applications, such as video
telephony, wireless Internet access, multimedia streaming, and other
high-speed information and entertainment services. These and other
advanced services are essential to the future of our economy as we
compete in a world increasingly dependent upon the immediate
availability and exchange of vast amounts of information.

The future of wireless services will include the existing services of
Broadband Radio Service (BRS) and Fixed Microwave Service (FS), but it
will also -- and must also -- include AWS. Today, we take a significant
step toward that future. Our action today represents a balancing of
interests, as we help to facilitate the introduction of AWS in certain
spectrum bands, yet take steps to ensure the continuation of BRS and FS
service to the public. Those steps include cost sharing rules requiring
relocation reimbursement from AWS and Mobile-Satellite Services (MSS)
entering the bands, as well as relocation policies designed to minimize
interference and provide relocating incumbents the right to comparable
facilities.

I have always believed that the parties are in the best position to
formulate resolutions, through negotiation, that take into account their
individual business plans. I agree, however, that, as provided in this
Order, regulatory intervention is appropriate where the parties fail to
reach such resolution. Therefore, we also establish a mandatory
negotiation period in which the parties must negotiate for relocation in
good faith *before* a new entrant can trigger the involuntary relocation
process.

For all these reasons, I support this Order.

[^1]: The Multipoint Distribution Service (MDS) was renamed the
    Broadband Radio Service (BRS) in the *BRS R&O*. *See* Amendment of
    Parts 1, 21, 73, 74 and 101 of the Commission's Rules to Facilitate
    the Provision of Fixed and Mobile Broadband Access, Educational and
    Other Advanced Services in the 2150-2162 MHz and 2500-2690 MHz
    Bands, WT Docket No. 03-66, *Report and Order and Further Notice of
    Proposed Rulemaking*, 19 FCC Rcd 14165 (2004) ("*BRS R&O and
    FNPRM*"); *Third Memorandum Opinion and Order and Second Report and
    Order,* FCC 06-46 (adopted April 12, 2006) ("*BRS Third MO&O and
    Second R&O*"). Therefore, all former MDS licensees are now referred
    to as BRS licensees. As noted in para. 3, *infra,* BRS uses
    2160-2162 MHz only in the top 50 markets. In WT Docket 03-66, as
    part of an overall restructuring of the BRS spectrum, the Commission
    established a channel plan in the 2496-2690 MHz band that is
    designed to accommodate BRS licensees that currently operate in the
    2150-2162 MHz band.

[^2]: Advanced Wireless Service (AWS) is the collective term we use for
    new and innovative fixed and mobile terrestrial wireless
    applications using bandwidth that is sufficient for the provision of
    a variety of applications, including those using voice and data
    (such as Internet browsing, message services, and full-motion video)
    content. Although AWS is commonly associated with so-called third
    generation (3G) applications and has been predicted to build on the
    success of such current-generation commercial wireless services as
    cellular and Broadband PCS, the services ultimately provided by AWS
    licensees are only limited by the fixed and mobile designation of
    the spectrum we allocate for AWS and the service rules we ultimately
    adopt for the bands.

[^3]: Historically, the 2150-2160/62 MHz and 2500-2690 MHz bands were
    predominantly used for one‑way analog video transmission.
    Increasingly, BRS operators are using these bands for two-way
    digital broadband services. In October 1996, the Commission decided
    to allow high‑speed digital data applications on BRS operations,
    including Internet access. Then, in 1998, the Commission approved
    the use of two‑way transmissions by the BRS, effectively enabling
    the provision of voice, video, and data services. In 2001, a mobile,
    except aeronautical mobile, service allocation was added to the
    2500-2690 MHz band. *See* Amendment of Part 2 of the Commission's
    Rules to Allocate Spectrum Below 3 GHz for Mobile and Fixed Services
    to Support the Introduction of New Advanced Wireless Services,
    including Third Generation Wireless Systems, ET Docket No. 00-258,
    *First Report and Order and Memorandum Opinion and Order*, 16 FCC
    Rcd 17222 (2001) ("*AWS First R&O and MO&O*"). Under an informal
    agreement among BRS licensees, the principal use of the 2150-2160/62
    MHz band is for response stations transmitting to hub stations,
    which are generally known as upstream communications. A response
    station in a two-way system is a customer-premises transceiver used
    for the reception of downstream and transmission of upstream signals
    as part of a large system of such stations licensed under the
    authority of a single license. A downstream maximum equivalent
    isotropic radiated power (e.i.r.p.) of 33 dBW (2000 Watts) per six
    megahertz is permitted. A hub station is a receive-only station
    licensed as part of a system of response stations in a two-way
    system and used for the purpose of receiving the upstream
    transmissions of those response stations. *See* Amendment of Part 2
    of the Commission's Rules to Allocate Spectrum Below 3 GHz for
    Mobile and Fixed Services to Support the Introduction of New
    Advanced Wireless Services, including Third Generation Wireless
    Systems, ET Docket No. 00-258, *Third Report and Order, Third Notice
    of Proposed Rule Making, and Second Memorandum Opinion and Order,*
    18 FCC Rcd 2223 at 2253-54, ¶ 66, n.163 (2003) ("*AWS Third R&O,
    Third NPRM and Second MO&O*").

[^4]: The Commission provided the BRS service with an extra two
    megahertz in the 50 largest metropolitan areas so that there would
    be sufficient bandwidth (six megahertz) for a second analog
    television channel. The two megahertz at 2160-2162 MHz can only be
    assigned where there is evidence that no harmful interference would
    occur to any authorized co-frequency point-to-point facility. *See*
    47 C.F.R. § 27.5(i)(1); Amendment of Parts 1, 2, 21, and 43 of the
    Commission's Rules and Regulations to Provide for Licensing and
    Regulation of Common Carrier Radio Stations in the Multipoint
    Distribution Service, Docket No. 19493, *Report and Order,* 45 FCC
    2d 616 (1974), *recon. denied,* 57 FCC 2d 301 (1975).

[^5]: *See* Amendment of Part 2 of the Commission's Rules to Allocate
    Spectrum Below 3 GHz for Mobile and Fixed Services to Support the
    Introduction of New Advanced Wireless Services, including Third
    Generation Wireless Systems, ET Docket No. 00-258, *Memorandum
    Opinion and Order and Further Notice of Proposed Rule Making*, 16
    FCC Rcd 16043 at 16060-61, ¶¶ 38-41 (2001) ("*AWS Further Notice*").
    BRS operations in the 2160-2162 MHz band had previously been
    identified, as part of the 2160-2165 MHz band, as potential AWS
    spectrum in the underlying *Notice of Proposed Rulemaking* that
    initiated this docket. *See* Amendment of Part 2 of the Commission's
    Rules to Allocate Spectrum Below 3 GHz for Mobile and Fixed Services
    to Support the Introduction of New Advanced Wireless Services,
    including Third Generation Wireless Systems, ET Docket No. 00-258,
    *Notice of Proposed Rule Making and Order*, 16 FCC Rcd 596 (2001)
    ("*AWS Notice*").

[^6]: *See AWS Further Notice*, 16 FCC Rcd at 16061, ¶ 40.

[^7]: *See* Amendment of Part 2 of the Commission's Rules to Allocate
    Spectrum Below 3 GHz for Mobile and Fixed Services to Support the
    Introduction of New Advanced Wireless Services, including Third
    Generation Wireless Systems, ET Docket No. 00-258, *Second Report
    and Order,* 17 FCC Rcd 23193, 23212-13 at ¶¶ 40-41 (2002) ("*AWS
    Second R&O*"). In that decision, the Commission also recognized that
    the reallocation of the five megahertz spectrum block to AWS raised
    a number of issues, including the establishment of a relocation plan
    for incumbent licensees, but left these matters for future
    rulemaking decisions within the proceeding. *See also* FCC to
    Commence Spectrum Auction that will Provide American Consumers New
    Wireless Broadband Services, *News Release*, (rel. Dec. 29, 2004)
    (describing plans for Auction No. 66). We previously adopted service
    rules for this band. *See* Service Rules for Advanced Wireless
    Services in the 1.7 GHz and 2.1 GHz Bands, WT Docket No. 02-353,
    *Report and Order*, 18 FCC Rcd 25162 (2003) ("*AWS-1 Service Rules
    Order*"); *Order on Reconsideration*, 20 FCC Rcd 14058 (2005).

[^8]: *See* Amendment of Part 2 of the Commission's Rules to Allocate
    Spectrum Below 3 GHz for Mobile and Fixed Services to Support the
    Introduction of New Advanced Wireless Services, including Third
    Generation Wireless Systems, ET Docket No. 00-258, *Eighth Report
    and Order, Fifth Notice of Proposed Rule Making, and Order*, 20 FCC
    Rcd 15866 (2005) ("*AWS Eighth R&O and Fifth Notice*")*.* With
    respect to the 2155-2160/62 MHz band, which consists of BRS channels
    2 and 2A and the upper one megahertz of BRS channel 1, we have not
    yet established new service rules for this band.

[^9]: *See* 47 C.F.R. Part 27 -- Miscellaneous Wireless Communications
    Services (2004); *BRS R&O and FNPRM*, 19 FCC Rcd 14165 (2004).

[^10]: The Commission took this action as part of the reallocation of
    the larger 2160-2165 MHz band to emerging technologies. *See*
    Redevelopment of Spectrum to Encourage Innovation in the Use of New
    Telecommunications Technologies, ET Docket No. 92-9, *First Report
    and Order and Third Notice of Proposed Rule Making*, 7 FCC Rcd 6886
    at 6889-90, ¶ 21 (1992) ("*Emerging Technologies First R&O and Third
    NPRM*"). In the *AWS Third NPRM,* the Commission noted that there
    were 27 BRS licenses for the 2160-2162 MHz band on a primary basis.
    *See* Appendix E, attached to the *AWS Third NPRM.*

[^11]: *See* 47 C.F.R. § 2.106, footnote NG153.

[^12]: *See* <http://wireless.fcc.gov/auctions/06/> for information on
    Auction No. 6. This auction made available a maximum of 78 megahertz
    of primary spectrum in each BTA, but with the caveat that BTA
    licensees would protect incumbent stations. In the MDS Bidder
    Information Package, the Commission noted: "In 1992, the 2160-2162
    MHz frequency was reallocated to emerging technologies, and thus,
    any subsequent MDS use of these 2 MHz will be secondary." *See* FCC
    Auction \[for\] Multipoint and/or Multichannel Distribution Service
    (MDS) Authorizations for Basic Trading Areas, Bidder Information
    Package (1995), at 21 (available at
    <http://wireless.fcc.gov/auctions/06/releases.html>). In the *AWS
    Third NPRM,* the Commission noted that there were 16 BRS stations
    operating with secondary status. *See* Appendix E, attached to the
    *AWS Third NPRM.*

[^13]: *See BRS R&O and FNPRM*, 19 FCC Rcd at 14169-70, ¶ 6. The
    Commission had previously considered but rejected the use of the
    2500-2690 MHz band for AWS. *See AWS First R&O and MO&O*, 16 FCC Rcd
    17222 (2001). The Commission adopted a primary Fixed and Mobile
    (except aeronautical mobile) allocation for the 2495-2500 MHz band
    so that this spectrum could be integrated with the revised BRS band
    plan in the 2500-2690 MHz band. *See* Review of the Spectrum Sharing
    Plan Among Non-Geostationary Satellite Orbit Mobile Satellite
    Service Systems in the 1.6/2.4 GHz Bands; Amendment of Part 2 of the
    Commission's Rules to Allocate Spectrum Below 3 GHz for Mobile and
    Fixed Service to Support the Introduction of New Advanced Wireless
    Services, Including Third Generation Wireless Systems, IB Docket No.
    02-364, ET Docket No. 00-258, *Report and Order, Fourth Report and
    Order and Further Notice of Proposed Rulemaking*, 19 FCC Rcd 13386
    (2004) ("*Big LEO Spectrum Sharing Order*"), *aff'd by Order on
    Reconsideration and Fifth Memorandum Opinion and Order*, FCC 06-46
    (adopted April 12, 2006).

[^14]: *See BRS R&O*, 19 FCC Rcd at 14177-78, ¶¶ 23-24. There are other
    BRS channels in the 2596-2644 MHz, 2650-2656 MHz, 2662-2668 MHz, and
    2674-2680 MHz bands, as well as response channels in the 2686-2690
    MHz band. *See* *AWS First R&O and MO&O*, 16 FCC Rcd 17222 (2001).

[^15]: *See BRS R&O*, 19 FCC Rcd at 14183-84, ¶ 37-38.

[^16]: *See* 47 C.F.R. Parts 22, 27, and 101. As discussed above, the
    2160-2162 MHz portion of this band also includes BRS Channel 2
    licensees.

[^17]: *See Emerging Technologies First R&O and Third NPRM*, 7 FCC Rcd
    at 6889-90, ¶ 21.

[^18]: *See* *AWS Notice*, 16 FCC Rcd 596 (2001).

[^19]: *See* Amendment of Section 2.106 of the Commission's Rules to
    Allocate Spectrum at 2 GHz for Use by the Mobile-Satellite Service,
    ET Docket No. 95-18, *Third Report and Order and Third Memorandum
    Opinion and Order,* 18 FCC Rcd 23638 at ¶ 65 (2003) ("*MSS Third
    R&O*").

[^20]: *See* *AWS Third R&O*, 18 FCC Rcd 2223 at 2238, ¶ 28. The
    2165-2175 MHz band was part of the larger 2165-2180 MHz band that
    was reallocated in the *AWS Third R&O* from MSS use. This
    reallocated MSS spectrum was originally part of a 2165-2200 MHz band
    designated for satellite downlink operations.

[^21]: *See AWS Second R&O*, 17 FCC Rcd 23193 (2002).

[^22]: *AWS Eighth R&O*, 20 FCC Rcd at 15872, ¶ 9. We note that we are
    not deciding here how to assign this new AWS spectrum at 2155-2175
    MHz but will consider this issue in a separate service rules
    proceeding at a later date. We also note that a current bilateral
    agreement in the 2155-2160/62 MHz band between the United States and
    Canada provides for coordinated use of BRS and Educational Broadband
    Service (EBS) along the common border. The sharing of the
    2160/62-2175 MHz band between the United States and Canada is
    covered by Arrangement A of the *Agreement Concerning the
    Coordination and Use of Radio Frequencies Above Thirty Megacycles
    per Second*, with Annex, as amended. There are no agreements with
    Mexico in the 2155-2175 MHz band. Accordingly, we note that there
    may be a need to negotiate new or modified agreements to provide for
    more flexible use of the spectrum with Canada and Mexico along the
    common international borders. *Id.* at 15872, ¶ 10.

[^23]: *See, e.g., AWS Third NPRM*, 18 FCC Rcd at 2256-57, ¶¶ 71-73
    (exploring the relocation needs for the BRS licensees in the
    2150-2160/62 MHz band).

[^24]: *See* Redevelopment of Spectrum to Encourage Innovation in the
    Use of New Telecommunications Technologies, ET Docket No. 92-9,
    *First Report and Order and Third Notice of Proposed Rule Making*, 7
    FCC Rcd 6886 (1992); *Second Report and Order*, 8 FCC Rcd 6495
    (1993); *Third Report and Order and Memorandum Opinion and Order*, 8
    FCC Rcd 6589 (1993); *Memorandum Opinion and Order*, 9 FCC Rcd 1943
    (1994); *Second Memorandum Opinion and Order*, 9 FCC Rcd 7797
    (1994); *aff'd Association of Public Safety Communications
    Officials-International, Inc. v. FCC*, 76 F.3d 395 (D.C. Cir. 1996)
    (collectively, "*Emerging Technologies* proceeding"). *See also
    Teledesic, LLC v. FCC*, 275 F.3d 75 (D.C. Cir. 2001) (affirming
    modified relocation scheme for new satellite entrants to the 17.7 --
    19.7 GHz band). *See also* Amendment to the Commission's Rules
    Regarding a Plan for Sharing the Costs of Microwave Relocation, WT
    Docket No. 95-157, *First Report and Order and Further Notice of
    Proposed Rule Making* , 11 FCC Rcd 8825 (1996); *Second Report and
    Order*, 12 FCC Rcd 2705 (1997); *Memorandum Opinion and Order on
    Reconsideration*, 15 FCC Rcd 13999 (2000) (collectively, "*Microwave
    Cost Sharing* proceeding").

[^25]: *Id.*

[^26]: *See Emerging Technologies Third R&O*, 8 FCC Rcd at 6591 & 6603,
    ¶¶ 5 & 36; *Microwave Cost Sharing First R&O*, 11 FCC Rcd 8825 at ¶¶
    27-34.

[^27]: *See Emerging Technologies Third R&O*, 8 FCC Rcd at 6595, ¶ 15.

[^28]: *See, e.g.,* Amendment of Section 2.106 of the Commission's Rules
    to Allocate Spectrum at 2 GHz for Use by the Mobile-Satellite
    Service, ET Docket No. 95-18, *Second Report and Order and Second
    Memorandum Opinion and Order*, 15 FCC Rcd 12315 (2000) ("*MSS Second
    R&O and Second MO&O*").

[^29]: *See Emerging Technologies First R&O*, 7 FCC Rcd 6886 at ¶ 24.

[^30]: *See Microwave Cost Sharing First R&O*, 11 FCC Rcd 8825 at ¶¶
    65-68.

[^31]: *See* *AWS Eighth R&*O, *Fifth Notice and Order*, 20 FCC Rcd
    15866, 15890 at ¶ 53. *See also* "Licensees of Broadband Radio
    Service Channels 1 and/or 2/2A Must File Site and Technical Data By
    December 27, 2005," *Public Notice*, DA 05-3126 (rel. November 30,
    2005) ("*BRS Data Collection Public Notice*").

[^32]: Several parties commented on issues regarding the Commission's
    new BRS band plan at 2496-2690 MHz and its suitability as
    replacement spectrum for BRS incumbents currently occupying the
    2150-2160/62 MHz band. *See, e.g.,* WCA Comments at 46-50;
    Polar/Northern Wireless Reply at 9-10; W.A.T.C.H. TV Reply at 8;
    Sprint Nextel Reply at 8-10; SpeedNet Reply at 3; C&W Reply at 3;
    BellSouth Reply at 7. These issues have been addressed in the *Big
    LEO Spectrum Sharing Order on Reconsideration and Fifth MO&O,
    BRS/EBS Third MO&O and Second R&O*, FCC 06-46 (adopted April 12,
    2006).

[^33]: *See generally, AWS Fifth Notice*, 20 FCC Rcd at 15873-82, ¶¶
    13-29.

[^34]: *See, e.g.,* Verizon Comments at 2; CTIA Comments at 3-4; US
    Cellular Reply at 2; T-Mobile Reply at 1-2.

[^35]: *See*, *e.g*., *supra* note Error: Reference source not found;
    Amendment of Section 2.106 of the Commission's Rules to Allocate
    Spectrum at 2 GHz for use by the Mobile-Satellite Service, ET Docket
    No. 95-18, *Second Report and Order and Second Memorandum Opinion
    and Order,* 15 FCC Rcd 12315 (2000) ("*MSS Second R&O*");
    Redesignation of the 17.7-19.7 GHz Frequency Band, Blanket Licensing
    of Satellite Earth Stations in the 17.7-20.2 GHz and 27.5-30.0 GHz
    Frequency Bands, and the Allocation of Additional Spectrum in the
    17.3-17.8 GHz and 24.75-25.25 GHz Frequency Bands for Broadcast
    Satellite-Service Use, IB Docket No. 98-172, *Report and Order*, 15
    FCC Rcd 13340 (2000) ("*18 GHz Relocation Proceeding*"), *aff'd sub
    nom., Teledesic LLC v. FCC,* 275 F.3d 75 (D.C. Cir. 2001); and
    Improving Public Safety Communications in the 800 MHz Band,
    Consolidating the 800 and 900 MHz Industrial/Land Transportation and
    Business Pool Channels, WT Docket 02-55, Amendment of Part 2 of the
    Commission's Rules to Allocate Spectrum Below 3 GHz for Mobile and
    Fixed Services to Support the Introduction of New Advanced Wireless
    Services, including Third Generation Wireless Systems, ET Docket No.
    00-258, Amendment of Section 2.106 of the Commission's Rules to
    Allocate Spectrum at 2 GHz for use by the Mobile Satellite Service,
    ET Docket No. 95-18, *Report and Order, Fourth Report and Order,
    Fourth Memorandum Opinion and Order, and Order*, 19 FCC Rcd 14969
    (2004) ("*800 MHz R&O*"). The Commission has made modifications to
    the relocation procedures, when warranted, to address unique
    characteristics of the new entrants, incumbent operations and/or
    nature of the reallocated spectrum.

[^36]: *See* Amendment of Parts 1, 21, 73, 74 and 101 of the
    Commission's Rules to Facilitate the Provision of Fixed and Mobile
    Broadband Access, Educational and Other Advanced Services in the
    2150-2162 MHz Band, WT Docket No. 03-66, *Notice of Proposed Rule
    Making and Memorandum Opinion and Order,* 18 FCC Rcd 6722 at 6734, ¶
    23 (2003) ("*BRS NPRM*").

[^37]: *Id.*

[^38]: *BRS NPRM*, 18 FCC Rcd at 6734-35, ¶ 24.

[^39]: *See BRS R&O,* 19 FCC Rcd at 14189-94, ¶¶ 52-67. The GSA is based
    on the protected service area (PSA), generally the area within a 35
    mile radius of the transmitter site, contained in the BRS licensee's
    site-based license. The PSA for a BRS BTA authorization holder is
    generally the area that is coterminous with the boundaries of the
    BTA (subject to the exclusion of the 35-mile PSAs of former MDS
    licensees). *Id.,* 19 FCC Rcd at 14190-91, ¶ 55.

[^40]: *See AWS Eighth R&*O, *Fifth Notice and Order*, 20 FCC Rcd 15866,
    15890 at ¶ 53. *See also BRS Data Collection Public Notice*, DA
    05-3126 (2005). We note that subscriber information was not part of
    this technical data filing. Although our license records indicate
    there are approximately 565 active BRS licenses in the 2150-2160/62
    MHz band, licensees that did not have constructed and/or operational
    facilities were not required to file system information in response
    to the *Order*. A logical conclusion that can be drawn from the
    disparity between licensed records and the data generated in
    response to the *Order* is that many licensees do not have
    constructed and operational facilities. This is also generally
    consistent with WCA's estimates of the number and scope of operating
    BRS Channel 1 and 2 facilities. The *BRS Data Collection Public
    Notice* also noted that the failure to timely file the mandatory
    data regarding the construction status and/or operational parameters
    of a BRS system could risk prejudicing any right to seek relocation
    or reimbursement for such constructed and operational facilities.
    Based on the information that we have collected and the text of the
    *BRS Data Collection Public Notice*, we conclude that BRS licensees
    who did not file under the mandatory data collection requirements
    contained in the *BRS Data Collection Public Notice*, and who
    subsequently claim that they are entitled to relocation or
    reimbursement, have the burden to demonstrate to an AWS entrant that
    they meet the relocation eligibility requirements provided in this
    *Ninth R&O.* Furthermore, an AWS entrant that does not engage in
    relocation negotiations with such BRS licensees, absent this
    showing, is not subject to a claim that it is failing to act in good
    faith.

[^41]: Economic Areas (EAs) are geographical regions that are defined by
    the Regional Economic Analysis Division, Bureau of Economic
    Analysis, U.S. Department of Commerce February 1995. EAs, as
    modified by the Commission to encompass all the geographic areas in
    which the Commission licenses radio spectrum, are used as one means
    of defining geographic service area licenses. *See* 62 FR 9636
    (March 3, 1997). *See* 47 C.F.R. § 27.6 Note 2 to Paragraph
    (b)(2)(i).

[^42]: WCA Comments at 2-3. For example, WCA reports that CommSpeed is
    serving 2,000 subscribers in rural areas of Northern Arizona.

[^43]: *See* Sprint Nextel Comments at 1.

[^44]: *See* C&W Comments at 1; Evertek Reply at 1; Polar/Northern
    Wireless Reply at 2; Sioux Valley Wireless Reply at 2; SpeedNet
    Comments at 1; W.A.T.C.H. TV Company Reply at 2.

[^45]: *See AWS Fifth Notice*, 20 FCC Rcd at 15874, ¶ 14. In the *AWS
    Fifth Notice,* we sought comment on what criteria (*e.g.,* a rule
    similar to 47 C.F.R. § 24.237 or the use of Telecommunications
    Industry Association Technical Services Bulletin 10-F (TIA TSB
    10-F)) an AWS licensee should use to determine whether its proposed
    operations would cause interference to incumbent BRS operations in
    the 2150-2160 MHz band, such that the relocation of those systems
    would be necessary before AWS operations could begin. *Id.* at
    15881-82, ¶¶ 28-29. The test we adopt for determining the
    interference potential of AWS operations to BRS systems is discussed
    in further detail below. *See infra* ¶¶ 46-54*.*

[^46]: *See AWS Fifth Notice*, 20 FCC Rcd at 15874, ¶ 14.

[^47]: *See AWS Fifth Notice*, 20 FCC Rcd at 15874-75, ¶ 15. *See also*
    Amendment of Part 2 of the Commission's Rules to Allocate Spectrum
    Below 3 GHz for Mobile and Fixed Services to Support the
    Introduction of New Advanced Wireless Services, including Third
    Generation Wireless Systems, ET Docket Nos. 00-258 and 95-18, *Sixth
    Report and Order, Third Memorandum Opinion and Order, and Fifth
    Memorandum Opinion and Order*, 19 FCC Rcd 20720 at 20753, ¶ 71
    (2004) ("*AWS Sixth R&O*") (requiring AWS licensees in the 1995-2000
    MHz and 2020-2025 MHz bands to relocate incumbent Broadcast
    Auxiliary Service (BAS) operations in all affected BAS markets,
    including those markets where the AWS licensee provides partial,
    minimal, or no service).

[^48]: Verizon Comments at 4; CTIA Comments at 3-5; Sprint Nextel
    Comments at 26-28; WCA Comments at 33; Radiofone Reply at 2;
    BellSouth Reply at 7.

[^49]: Verizon Comments at 4; CTIA Comments at 3-5 & note 15.

[^50]: *See, e.g.,* C&W Comments at 3; SpeedNet Comments at 3; SpeedNet
    Reply at 4; Polar/Northern Wireless Reply at 8-9.

[^51]: *See, e.g.,* BellSouth Comments at 5-6; C&W Comments at 3-4;
    T-Mobile Comments at 3; Sprint Nextel Comments at 24-26; WCA
    Comments at 30; Sioux Valley Wireless Reply at 6-7.

[^52]: *See, e.g.,* SpeedNet Comments at 3-4; BellSouth Comments at 5;
    WCA Comments at 42-44; BellSouth Reply at 4; Sprint Nextel Reply at
    6. Commenters generally refer to the self relocation process used
    for PCS entry into the 1.9 GHz band, noting in particular, the
    incumbent's ability to decide when to relocate. Unlike that
    proceeding, where the incumbent's relocation expenses were subject
    to a hard monetary cap established by rule, commenters here propose
    that the incumbent would negotiate reimbursement for what it deems
    to be comparable facilities.

[^53]: *See* BellSouth Comments at 5, citing *Microwave Cost Sharing
    Second R&O*, 12 FCC Rcd 2705, 2717. *See also* WCA Comments at
    42-44.

[^54]: WCA proposed a plan for self relocation that was supported by
    some BRS parties. *See* WCA Comments at 14-16, 22-27, & 42-44;
    SpeedNet Reply at 2-3; Polar/Northern Wireless Reply at 7-8; Evertek
    Reply at 8-9; Radiofone Reply at 3; C&W Reply at 2-3; W.A.T.C.H. TV
    Reply at 7-8.

[^55]: WCA Comments at 43-44.

[^56]: T-Mobile Reply at 8-9; CTIA Reply at 5-6.

[^57]: Verizon Comments at 4.

[^58]: Many parties that have filed comments in this docket have
    proposed such systems, and, in many cases, operate similarly
    configured systems in the cellular and PCS bands that could be
    readily upgraded to incorporate new AWS spectrum.

[^59]: *See AWS-1 Service Rules Order*, 18 FCC Rcd 25162; *Order on
    Reconsideration*, 20 FCC Rcd 14058.

[^60]: We also modified the link-by-link approach for AWS relocations in
    the 1995-2000 MHz and 2020-2025 MHz bands in order to accommodate
    the integrated nature of the BAS incumbents. *See AWS Sixth R&O,* 19
    FCC Rcd at 20752-53. However, we note that the unique circumstances
    that led to the requirement to clear the entire 1990-2025 MHz band
    of BAS incumbents, *i.e.,* the ubiquitous nature of the MSS and the
    assignment of five megahertz of spectrum in the 1.9 GHz band to
    Nextel as part of the 800 MHz band reconfiguration process designed
    to alleviate interference to public safety operations in the 800 MHz
    band, are not present here.

[^61]: Whether a new entrant is required to relocate multiple systems
    (*i.e*., multiple base stations or networks) will depend on the
    interference analysis.

[^62]: *See infra* ¶ 20 (relocation schedule) and ¶¶ 46-54 (interference
    criteria)*.*

[^63]: In this context, "self relocation" is where the BRS incumbent,
    not the AWS entrant, has the sole discretion and control with
    respect to the relocation schedule, costs, and determination of
    comparable facilities, *i.e.,* "self relocation" refers to a
    unilateral, non-negotiated relocation by the BRS licensee. We note
    that "self relocation" may be defined differently in other
    proceedings. *See, e.g., BRS R&O*, 19 FCC Rcd 14165.

[^64]: *See infra* ¶ 33*.*

[^65]: *See infra* ¶ 39*.*

[^66]: *See Emerging Technologies Third R&O*, 8 FCC Rcd 6589 at 6591 &
    6603, ¶¶ 5 & 36.

[^67]: *See Microwave Cost Sharing First Report and Order and Further
    Notice of Proposed Rule Making,* 11 FCC Rcd 8825 at ¶¶ 27-34 (2000)
    ("*Microwave Cost Sharing First R&O and FNPRM*"). *See also* 47
    C.F.R. §§§ 101.73, 101.75, 101.91.

[^68]: Consistent with this purpose, the Commission's relocation
    procedures provide that during involuntary relocation, new entrants
    would only be required to provide incumbents with enough throughput
    to satisfy their system use at the time of relocation, not to match
    the overall capacity of the system. *See* 47 C.F.R. § 101.75.

[^69]: For example, in ET Docket No. 95-18, the Commission adopted a
    policy in which new MSS entrants would relocate incumbent BAS
    systems operating in the 1990-2110 MHz band to the 2025-2110 MHz
    band -- a reduction of 35 megahertz of spectrum. The Commission
    determined that BAS could achieve comparable facilities in the
    reduced spectrum because the relocation would entail an upgrade of
    equipment from analog to digital. *See* *MSS Second R&O*, 15 FCC Rcd
    12315; *MSS Third R&O*, 18 FCC Rcd 23638.

[^70]: *See AWS Fifth Notice*, 20 FCC Rcd at 15875-76, ¶¶ 16-18. *See
    also AWS Third NPRM,* 18 FCC Rcd at 2256, ¶ 71. For example, we
    recognized that the incumbent BRS licensee may change the type of
    services it offers as it transitions to the new BRS band plan
    (*e.g.*, from one-way to two-way service or from fixed to mobile
    service), and we sought comment on how the comparable facilities
    policy would be satisfied in such a situation. We also sought
    comment on how the relocation obligation of comparable facilities
    should be applied to post-1992 licensees operating on a combination
    of BRS channels 1 and 2/2A (*e.g.,* integrated for downstream
    two-way broadband operations), considering these channels will
    likely transition to new channels in the restructured band at
    different times. *Id.* at ¶ 18.

[^71]: *See, e.g.,* Verizon Comments at 4; BellSouth Comments at 4

[^72]: *See, e.g.,* SpeedNet Comments at 4; C&W Comments at 4; SpeedNet
    Reply at 4; C&W Reply at 3-4. Examples of internal costs cited by
    the parties include: labor and transportation, the time expended by
    company employees to inform customers and arrange customer
    appointments, and the time of company personnel in planning and
    organizing the transition. *See id.*

[^73]: *See* Sprint Nextel Comments at 10-13; WCA Comments at 14-16,
    citing Amendment of Part 90 of the Commission's Rules to Facilitate
    Future Development of SMR Systems in the 800 MHz Frequency Band, PR
    Docket No. 93-144, *Second Report and Order*, 12 FCC Rcd 19079 at
    19112-13, ¶ 92 (1997) ("*Upper 200 MHz Specialized Mobile Radio
    Second R&O*") and the *800 MHz R&O,* 19 FCC Rcd at 15076-77, ¶ 202.
    We note that all of the factors, except for operating costs, listed
    in the *800 MHz R&O, i.e.,* equivalent channel capacity; equivalent
    signal capability, baud rate, and access time; and coextensive
    geographic coverage, are contained in the "capacity" factor listed
    in the *Upper 200 MHz Specialized Mobile Radio Second R&O. See Upper
    200 MHz Specialized Mobile Radio Second R&O*, 12 FCC Rcd at
    19112-13, ¶ 92.

[^74]: *See, e.g.,* CTIA Comments at 9; Sprint Nextel Comments at 34-37;
    SpeedNet Reply at 5; C&W Reply at 6-7.

[^75]: *See* CTIA Comments at 11; Verizon Comments at 4-5.

[^76]: We note that including end user equipment in the definition of
    comparable facilities is similar to our use of the "system" factor
    in the *Upper 200 MHz Specialized Mobile Radio Second R&O.* In that
    proceeding, we stated that "the term 'system' should be 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." In this case, the term
    "system" includes the radio base station and all end user units
    served by that base station. *See supra* ¶ 19*.*

[^77]: *See infra* ¶ 40*.*

[^78]: Although it may be possible to relocate BRS operations on
    channels 1 and 2/2A separately, this could require the installation
    and operation of more than one device at either the base station or
    the end user's premises.

[^79]: *See, e.g.,* SpeedNet Comments at 5-6.

[^80]: *Microwave Cost Sharing First R&O,* 11 FCC Rcd 8825 at ¶ 42.

[^81]: *See* 47 C.F.R. § 2.105(c).

[^82]: *See, e.g.,* *Ex Parte* filing of Private Networks, Inc. (Nov. 6,
    2003) (noting that some grandfathered BRS licensees have long-term
    leases with commercial operators for use of their spectrum).

[^83]: *See* *BRS R&O,* 19 FCC Rcd at 14232-34, ¶¶ 177-81. Under the
    Secondary Markets policy, licensees may engage in either "spectrum
    manager leasing" whereby they retain *de facto* control of the
    spectrum and *de jure* control of the license or "*de facto*
    transfer leasing" whereby they transfer *de facto* control of the
    spectrum to a lessee. *See* Promoting Efficient Use of Spectrum
    Through Elimination of Barriers to the Development of Secondary
    Markets, WT Docket No. 00-230, *Report and Order and Further Notice
    of Proposed Rulemaking*, 18 FCC Rcd 20604 (2003) ("*Secondary
    Markets Order and Notice*"), *Erratum* 18 FCC Rcd 24817 (2003). This
    decision also affects EBS (formerly Instructional Television Fixed
    Service) licensees in the 2500-2690 MHz band. Because both EBS and
    BRS are channelized in this band, the Commission's comprehensive
    restructuring of BRS also encompassed EBS.

[^84]: *See AWS Fifth Notice*, 20 FCC Rcd at 15877-78, ¶ 20.

[^85]: CTIA Comments at 10; WCA Comments at 45; Sprint Nextel Reply at
    13-14.

[^86]: Radiofone Reply at 3.

[^87]: WCA Comments at 16 & 44-45; Sprint Nextel Reply at 13-14;
    SpeedNet Reply at 6; C&W Reply at 4-5; WCA Reply at 22.

[^88]: A private agreement between the licensee and lessee should
    address how new facilities or payment for "comparable facilities"
    will be shared between the parties.

[^89]: *See* 47 C.F.R. § 101.75. *See also infra* ¶ 40.

[^90]: This issue should be addressed in a private agreement between the
    licensee and lessee.

[^91]: *AWS Fifth Notice*, 20 FCC Rcd at 15878, ¶ 21.

[^92]: *Id.*

[^93]: *See, e.g.,* CTIA Comments at 11; C&W Comments at 3; Sprint
    Nextel Comments at 45-46; CTIA Reply at 5; WCA Reply at 22-23.

[^94]: *See, e.g., MSS Second R&O,* 15 FCC Rcd at 12361-62, ¶ 134; *MSS
    Third R&O,* 18 FCC Rcd at 23675-76, ¶¶ 79-80; *18 GHz Relocation
    Proceeding*, 15 FCC Rcd at 13466, ¶ 75.

[^95]: In this case, the incumbent would not be entitled to the
    increased costs to relocate the facility that may result from the
    transfer or assignment.

[^96]: *See* 47 C.F.R. § 27.1209(c); *BRS R&O* at 14189-90, ¶ 54.
    Reversion upon cancellation or forfeiture of an existing license to
    the licensee that holds the corresponding BTA license is consistent
    with the approach the Commission has taken in other wireless
    services. *See, e.g.,* Amendment of the Commission's Rules Regarding
    the 37.0-38.6 GHz and 38.6-40.0 GHz bands, ET Docket No. 95-183,
    *Report and Order and Second Notice of Proposed Rulemaking,* 12 FCC
    Rcd 18600, 18637-38 ¶ 79 (1997).

[^97]: *See AWS Third R&O,* 18 FCC Rcd 2223 at n.104.

[^98]: *See Emerging Technologies First R&O and Third NPRM,* 7 FCC Rcd
    6886 at ¶¶ 30-31.

[^99]: *See AWS Fifth Notice*, 20 FCC Rcd at 15878-79, ¶ 22. *See also,
    e.g.,* 47 C.F.R. §§ 101.81 and 101.83.

[^100]: *See AWS Fifth Notice,* 20 FCC Rcd at 15879, ¶ 23.

[^101]: *See BRS R&O,* 19 FCC Rcd at 14189-90, ¶ 54.

[^102]: *See* CTIA Comments at 12; Verizon Comments at 5-6. Verizon
    contends that secondary status alone is not sufficient and that the
    Commission should institute a freeze on the construction of new
    facilities and any other major modification to BRS systems. BRS
    parties disagreed and requested that the Commission reject Verizon's
    freeze proposal. *See* Polar/Northern Wireless Reply at 5; Evertek
    Reply at 2-3; WCA Reply at 4-7. We reject Verizon's freeze proposal
    for the reasons discussed below.

[^103]: *See, e.g.,* C&W Comments at 2-3; SpeedNet Comments at 2;
    Polar/Northern Wireless Reply at 5; Sioux Valley Wireless Reply at
    708; Evertek Reply at 4-5; W.A.T.C.H. TV Reply at 3-5; Sprint Nextel
    Reply at 5.

[^104]: *Id.*

[^105]: Sprint Nextel Comments at 6-7.

[^106]: Sprint Nextel Comments at 21-23.

[^107]: WCA Comments at 40-41. We note that the Commission is not
    precluded from regulating spectrum licenses obtained at auction.
    Section 309(j)(6)(C) of the Communications Act provides that
    "\[n\]othing in this subsection or in the use of competitive bidding
    shall diminish the authority of the Commission under other
    provisions of this Act to regulate or reclaim spectrum licenses."
    *See* 47 U.S.C. § 309(j)(6)(C).

[^108]: CTIA Comments at 12; Sprint Nextel Comments at 23-24; WCA
    Comments at 48.

[^109]: *See AWS Fifth Notice*, 20 FCC Rcd at 15878-79, ¶¶ 22-23.

[^110]: As noted above, after January 16, 1992, licensees in the
    2160-2162 MHz band were already authorized on a secondary basis.

[^111]: It is unlikely that new BRS facilities will be authorized in
    this band since the Commission assigned this spectrum via a
    competitive bidding process in 1996. *See supra* note Error:
    Reference source not found. Therefore, we do not believe a freeze,
    as proposed by Verizon, is necessary.

[^112]: For example, to fully utilize existing system throughput, the
    licensee may increase the height of an antenna or increase power at
    a base station in order to add additional customers up to its system
    capacity which, consequently, could increase the size or coverage of
    the service area or interference potential with AWS.

[^113]: In its comments, CTIA proposes that each BRS incumbent submit,
    pre-auction, an estimate of what it will cost to relocate the
    incumbent's systems, and further proposes that an AWS licensee
    relocating the incumbent be obligated to spend no more than 110
    percent of this estimate. *See* CTIA Comments at 9-10; *see also*
    T-Mobile Comments at 3; T-Mobile Reply at 2-3 (claiming that a
    pre-auction estimate gives a BRS incumbent greater assurance that it
    will receive appropriate compensation). Several BRS commenters
    disagree with CTIA's proposals for a pre-auction cost estimate and
    110 percent cap because relocations costs (*e.g.,* subscriber,
    labor, and equipment costs) are too difficult to predict at such an
    early stage in the process, particularly since replacement equipment
    is not yet available. *See, e.g.,* Sioux Valley Wireless Reply at 5;
    Radiofone Reply at 4-5; Evertek Reply at 6-7; W.A.T.C.H. TV Reply at
    5; WCA Reply at 10-13. We decline to require a pre-auction estimate
    of relocation costs or a 110 percent cap on this estimate because,
    as discussed above, we are allowing BRS incumbents to add customers
    to fully utilize existing throughput until relocation occurs. Thus,
    requiring an estimate on relocation costs at this time would be
    premature and difficult to determine.

[^114]: We note that there may be circumstances where modifications may
    be necessary (*e.g.,* as a result of a natural disaster or some
    other emergency event beyond the BRS licensee's control) or where a
    BRS licensee that is operating in the 2150-2160/62 MHz band prior to
    effective date of this *Report and Order* "must file a new
    application pursuant to Section 27.1209 for a new or modified
    facility because of proximity to a quiet zone, environmental issues,
    etc." CTIA and WCA contend that these types of modifications should
    not disqualify the facility's eligibility for relocation. *See,
    e.g.,* CTIA Comments at 12, n.36; WCA Comments at 43, n.86. We will
    address situations where modifications to BRS systems that are in
    use are necessary as a result of special circumstances, such as
    those described above, on a case-by-case basis. We note that, in
    general, an application for a new facility that is filed after the
    effective date of this *Report and Order* will render the new
    facility secondary and thus, not eligible for relocation. *See
    supra* ¶ 25*.*

[^115]: *See supra* ¶ 25*; see also* 47 C.F.R. § 2.106, footnote
    NG153*.*

[^116]: *See infra* ¶ *44.*

[^117]: We note that where relocation-eligible major modifications are
    made to already deployed incumbent facilities, system-by-system
    relocation is still required, *i.e.,* each additional customer's
    equipment must be relocated to comparable facilities.

[^118]: *See AWS Fifth Notice*, 20 FCC Rcd at 15876-77, ¶ 19.

[^119]: *Id.* We proposed to undertake these license modifications
    pursuant to our authority under Section 316 of the Communications
    Act. *See* 47 U.S.C. § 316. Specifically, Section 316(a)(1) provides
    that "\[a\]ny station license . . . may be modified by the
    Commission . . . if in the judgment of the Commission such action
    will promote the public interest, convenience and necessity." *See*
    47 U.S.C. § 316(a)(1). *See also California Metro Mobile
    Communications v. FCC,* 365 F.3d 38, 45 (D.C. Cir. 2004) ("*CMMC*");
    *Peoples Broadcasting Co. v. United States*, 209 F.2d 286, 288 (D.C.
    Cir. 1953); *Community Television, Inc. v. FCC*, 216 F.3d 1133, 1140
    (D.C. Cir. 2000); *Rainbow Broadcasting v. FCC*, 949 F.2d 405, 410
    (D.C. Cir. 1991).

[^120]: *See* Verizon Comments at 5; CTIA Comments at 11-12; WCA
    Comments at 48-49.

[^121]: WCA Comments at 48-49. A proponent is generally a BRS or EBS
    licensee or EBS lessee that initiates a transition in the 2.5 GHz
    band by filing an Initiation Plan with the Commission. *See BRS
    R&O*, 19 FCC Rcd 14165 at 14200, ¶¶ 78-79.

[^122]: WCA Comments at 43, n. 86.

[^123]: *See* 4*7* C.F.R. § 101.71 (voluntary negotiations) and § 101.73
    (mandatory negotiations); *see also Emerging Technologies Third
    R&O*, 8 FCC Rcd at 6595, ¶ 15; *Microwave Cost Sharing First R&O and
    FNPRM,* 11 FCC Rcd 8825.

[^124]: *See AWS Fifth Notice*, 20 FCC Rcd at 15879-80, ¶ 24.

[^125]: *See AWS Fifth Notice*, 20 FCC Rcd at 15879-80, ¶ 24. We noted
    that the BRS transition plan for the new band at 2496-2690 MHz has
    five stages: (1) the initiation of the transition process -- when a
    proponent files an initiation plan for a geographic area with the
    Commission; (2) the transition planning period -- where parties can
    file counterproposals and any disputes would go to arbitration; (3)
    the reimbursement of costs; (4) the termination of incumbent
    operations; and (5) the filing of post-transition notification of
    completion with the Commission. The approximate time needed for the
    re-banding process includes 3-3½ years for the initiation and
    planning stages and 1½ years for the actual relocation, for a total
    of approximately five years. *See BRS R&O and FNPRM*, 19 FCC Rcd at
    14197-208, ¶¶ 72-103.

[^126]: We further noted that relocation of BRS operations by AWS
    licensees is more likely to take place in a relatively piecemeal
    fashion and over an extended period of time. Consequently, a uniform
    mandatory negotiation period applicable to all BRS licensees could
    possibly expire by the time that many BRS licensees were approached
    for relocation by an AWS entrant. *See AWS Fifth Notice*, 20 FCC Rcd
    at 15879-80, ¶ 24.

[^127]: *See* 47 C.F.R. § 101.75 for details on costs and the definition
    of comparable facilities.

[^128]: 47 C.F.R. § 101.75.

[^129]: *See AWS Fifth Notice*, 20 FCC Rcd at 15880-81, ¶ 25.

[^130]: *See, e.g.,* CTIA Comments at 7-8; T-Mobile Comments at 4-5;
    CTIA Reply at 3; Sprint Nextel Reply at 16.

[^131]: *See* BellSouth Comments at 6-7; *but see* CTIA Reply at 3.

[^132]: Sprint Nextel Comments at 37-39; Sprint Nextel Reply at 10.

[^133]: Commenters who opposed a right of return policy were Verizon,
    T-Mobile, and CTIA, who proposed that the BRS incumbent's license to
    operate in the 2.l GHz band should be automatically cancelled once
    the incumbent has been relocated. *See* Verizon Comments at 6-7;
    T-Mobile Reply at 7-8; CTIA Comments at 13. WCA and C&W supported a
    right of return policy as a remedy of last resort, especially if the
    BRS incumbent is allowed to select and deploy its own comparable
    facilities. *See* WCA Comments at 16-18; C&W Comments 5-6.

[^134]: *See Emerging Technologies Third R&O*, 8 FCC Rcd at 6595, ¶ 15.

[^135]: 47 C.F.R. § 101.73.

[^136]: Conversely, costs that are compensable include all engineering
    (*e.g.,* design/survey, installation, and testing), equipment, site,
    and FCC filing fees, as well as any legitimate and prudent
    transaction expenses incurred that are directly attributable to an
    involuntary relocation. BRS incumbents' costs directly associated
    with the actual relocation of end user equipment used to receive BRS
    service (*e.g.,* installation and testing) would likewise be
    compensable. We note that this list should be illustrative, not
    exhaustive, because some actual relocation expenses may not fit
    neatly into these categories. *See* 47 C.F.R. § 101.75; *Microwave
    Cost Sharing First R&O*, 11 FCC Rcd 8825, Appendix A.

[^137]: WCA references its proposal, found in its petition for
    reconsideration of the *BRS R&O and FNPRM* in WT Docket No. 03-66*,*
    for an interim band plan whereby BRS 1 and 2 licensees would be
    relocated to 2496-2500 MHz and 2686-2690 MHz, respectively, pending
    the completion of the 2.5 GHz band's transition. *See* WCA Comments
    at 46-47. This proposal for an interim band plan will be addressed
    in the *BRS/EBS Third MO&O* (FCC 06-46). In any event, we anticipate
    that equipment in the 2.5 GHz band is likely to be frequency agile
    across the band. Thus, retuning equipment to operate on the BRS
    channel 1 and 2 licensee's assigned frequencies upon completion of
    2.5 GHz band's transition is likely to be all that is necessary for
    comparable facilities.

[^138]: *See* 47 C.F.R. § 101.75.

[^139]: *Microwave Cost Sharing First R&O*, 11 FCC Rcd 8825 at ¶¶ 44-50.

[^140]: The "right of return" is only automatic if involuntary
    relocation occurs. If the parties decide a trial period should be
    established for relocations that occur as a result of mandatory
    negotiations, they must provide for such a period in the relocation
    contract. *See Microwave Cost Sharing First R&O,* 11 FCC Rcd 8825.
    As a practical matter, we would expect the right of return to be
    used as a remedy of last resort in order to minimize disruption to
    the BRS incumbents' customers.

[^141]: *AWS Fifth Notice*, 20 FCC Rcd at 15881, ¶ 26.

[^142]: *Id.*

[^143]: *Id.*

[^144]: CTIA Comments at 12.

[^145]: *See* CTIA Comments at 12; Sprint Nextel Comments at 44-45.

[^146]: *See, e.g.,* BellSouth Comments at 9; C&W Comments at 6;
    SpeedNet Reply at 3; Polar/Northern Wireless Reply at 6-7; Evertek
    Reply at 3-4; Radiofone Reply at 3; W.A.T.C.H. TV Reply at 5-6.

[^147]: *See, e.g.,* WCA Comments at 28-32; BellSouth Reply at 5-6;
    Sioux Valley Wireless Reply at 4-5.

[^148]: *See* WCA Comments at 27-28; Sprint Nextel Reply at 14-16; C&W
    Reply at 3.

[^149]: *See MSS Third MO&O*, 18 FCC Rcd at 23661, ¶ 46.

[^150]: *See supra* ¶ 3 (describing how the Commission has set forth
    service rules and anticipated auction timing for the 2150-2155 MHz
    band, whereas development of the 2155-2160 MHz band is on a
    different timetable).

[^151]: *See* *Microwave Cost Sharing First R&O and FNPRM,* 11 FCC Rcd
    8825, 8837-8838 ¶ 21.

[^152]: WCA Comments at 21; Sprint Nextel Reply at 7.

[^153]: *See* 47 C.F.R. § 24.237. *See also* Amendment of the
    Commission's Rules to Establish New Personal Communications
    Services, *Second Report and Order*, 8 FCC Rcd 7700, 7762 ¶ 150
    (1993); *Memorandum Opinion and Order*, 9 FCC Rcd 4957, 5029 ¶ 186
    (1994). TIA TSB 10-F, *inter alia,* sets forth the
    carrier-to-interference ratios for new entrants to use in
    determining whether a proposed station will cause interference to
    incumbent microwave stations.  *See generally*, TIA TSB 10-F.

[^154]: *See AWS Fifth Notice*, 20 FCC Rcd at 15882, ¶ 29.

[^155]: *Id.*

[^156]: *See* Sprint Nextel Comments at 20-21; WCA Comments at 35; CTIA
    Comments at 5.

[^157]: *See* Sprint Nextel Comments at 26-27; WCA Comments at 35-36;
    CTIA Comments at 5-6; CTIA Reply at 3. WCA specifically proposes
    that the line-of-sight relocation obligation be applied to any AWS
    licensee operating in the 2110-2155 MHz band, while other commenters
    do not specify whether such a rule should be applied to new entrants
    that operate co-channel to BRS at 2150-2155 MHz as well as to those
    in the adjacent 2110-2150 MHz band. *Compare* WCA Comments at 35
    *with* CTIA Reply at 3.

[^158]: *See* Sprint Nextel Comments at 14-17; WCA Comments at 35.

[^159]: *See* Sprint Nextel Comments at 26.

[^160]: *See* CTIA Comments at 5; CTIA Reply at 3.

[^161]: Sprint Nextel Comments at 29-30 and n.54; WCA Comments at 36.
    This methodology was set forth in "Methods for Predicting
    Interference from Response Station Transmitters and to Response
    Station Hubs and for Supplying Data on Response Station Systems. MM
    Docket 97-217," in Amendment of Parts 1, 21 and 74 to Enable
    Multipoint Distribution Service and Instructional Television Fixed
    Service Licensee to Engage in Fixed Two-Way Transmissions, MM Docket
    No. 97-217, *Report and Order on Further Reconsideration and Further
    Notice of Proposed Rulemaking*, Appendix D, 15 FCC Rcd 14566, 14610
    (2000) ("*Two-Way R&O and FNRPM*").

[^162]: *See* WCA Comments at 36. *See also* BellSouth Reply at 2
    (contending that an approach that does not take into account BRS
    subscriber locations is insufficient to protect BRS incumbent
    licensees' operations).

[^163]: *See* WCA Comments at 36-37. Section 21.902(f)(5)(2004) of the
    Commission's Rules determined line of sight based on the assumption
    that a BRS receiving antenna is installed 30 feet above ground level
    at each point in the GSA, determination of the actual height of the
    proposed station's transmitting antenna and actual terrain elevation
    data, and assumption of 4/3 Earth radius propagation conditions.

[^164]: Sprint Nextel Comments at 32-33.

[^165]: WCA Reply at 21.

[^166]: *See* T-Mobile Reply at 4-5.

[^167]: *Id*.

[^168]: US Cellular Reply at 3.

[^169]: *See* Amendment of Parts 1, 21 and 74 to Enable Multipoint
    Distribution Service and Instructional Television Fixed Service
    Licensee to Engage in Fixed Two-Way Transmissions, MM Docket No.
    97-217, Appendix D, *Report and Order*, 13 FCC Rcd 19112, 19265
    (1998).

[^170]: Sprint Nextel Comments at 27. We note that while the relocation
    zone proposal may serve as a reliable indicium of where interference
    to BRS licensees could be expected, a new entrant will remain
    responsible for resolving any actual harmful interference to
    incumbent BRS operations -- including relocation of that incumbent
    licensee -- if the new entrant's operations cause harmful
    interference and regardless of whether such interference was
    predicted under an interference zone analysis. *See* WCA Comments at
    37, n.76.

[^171]: *See, e.g.*, Sprint Nextel Comments at 31.

[^172]: *See* *supra* note Error: Reference source not found (discussing
    the methodology contained in the *Two-Way R&O and FNRPM*).

[^173]: *See* Sprint Nextel Comments at 30.

[^174]: Two-way BRS systems are generally designed such that BRS
    channels 1 and/or 2/2A are used for the transmission of data from a
    subscriber's location back to the hub antenna and, accordingly, any
    interference would occur at the BRS receive station hub site. *See*
    WCA Comments at 2, n.4.

[^175]: For purposes of this determination, it does not matter whether
    an actual subscriber is in the line of sight of the AWS licensee's
    base station.

[^176]: This rule was removed in conjunction with the restructuring of
    BRS and EBS in the 2496-2690 MHz band.

[^177]: *See, e.g.*, WCA Comments at 36-37.

[^178]: In the 2155-2175 MHz band, AWS stations operating on the
    2160-2175 MHz portion of the band are co-channel with BRS channel 2
    stations and are adjacent to BRS channel 2A stations. AWS stations
    operating on the 2162-2175 MHz portion of the 2155-2175 MHz band are
    adjacent to BRS channel 2 stations, but are non-adjacent to BRS
    channel 2A stations.

[^179]: *See* 47 C.F.R. § 21.902 (2004). *See also* "Methods for
    Predicting Interference from Response Station Transmitters and to
    Response Station Hubs and for Supplying Data on Response Station
    Systems. MM Docket 97-217," in *Two-Way R&O and FNRPM*, Appendix D,
    15 FCC Rcd 14566, 14610, which required, *inter alia*, the use of a
    line-of-sight analysis along with the aggregate power of proposed
    response station transmitters and the characteristics of receive
    station hub receiving antennas in conducting an interference
    analysis for proposed MDS and ITFS response stations.

[^180]: *See, e.g.*, WCA Comments at 35. Similarly, in the case of a BRS
    licensee that provides downstream video programming, line of sight
    from an AWS station to a BRS GSA and a signal that exceeds the BRS
    receiver's noise floor will not always produce interference at a BRS
    subscriber's location.

[^181]: *See* Sprint Nextel February 7, 2006, *Ex Parte*, at 1. In the
    accompanying Engineering Statement of Robert Gheman, Jr., P.E., at
    3, Sprint Nextel contends that BRS stations in the 2.1 GHz band will
    experience harmful interference due to cross modulation and/or
    intermodulation from AWS operations on any channel in the 2110-2155
    MHz band.

[^182]: *See* US Cellular Reply at 2-3.

[^183]: *See* WCA Comments at 37, n.76 (contending that if an AWS system
    actually causes interference to a BRS system, the AWS licensee is
    responsible for curing that interference). This principle would also
    apply where two or more non-co-channel licensees' transmissions
    combine to cause interference to BRS operations*.* We distinguish
    this interference mitigation responsibility from the cost sharing
    responsibilities discussed *infra*. We agree with US Cellular that
    interference caused by new AWS licensees operating outside the BRS
    band should not trigger cost sharing obligations associated with the
    relocation of incumbent BRS operations. *See* US Cellular Reply at
    4. Where AWS licensees are operating co-channel to BRS incumbents,
    the determination of whether and how non-co-channel band licensees
    are responsible for harmful interference to BRS incumbents is a
    complex and difficult determination for which no record has been
    developed.

[^184]: *See AWS Fifth Notice* at ¶ 30 (describing our relocation
    procedures as they were developed in the *Emerging Technologies* and
    *Microwave Cost Sharing* proceedings).

[^185]: *See, e.g.*, 47 C.F.R. §§ 101.71-101.75.

[^186]: *AWS Second R&O*, 17 FCC Rcd at 23215, ¶ 42-46. The language of
    Section 101.73(d) was also amended to broaden its scope to include
    FS relocation by AWS.

[^187]: *Id*. at 12331, ¶ 46 and 12343, ¶ 86.

[^188]: *See* 47 C.F.R. 101.73(d). As then adopted, this section
    provided, in part, that "\[m\]andatory negotiations will commence
    when the Mobile-Satellite Service (MSS) licensee informs the fixed
    microwave licensee in writing of its desire to negotiate . . . ." In
    explaining the operation of this rule, the Commission stated that
    "\[b\]ecause FS microwave is not an integrated, dynamically
    coordinated service like BAS, we will not establish a particular
    start time for negotiations. Rather, we will adhere to our *Emerging
    Technologies* policy, which states that the negotiation period
    begins when the *[first]{.underline}* licensee in the new service
    (here, MSS) informs the *[first]{.underline}* licensee in the
    incumbent service (FS microwave), in writing, of its desire to
    negotiate." (Emphasis added) As a result, there would be a single
    negotiation period that applied simultaneously to all FS incumbents.
    *See MSS Second R&O* at 12343, ¶ 86. This proceeding also
    established that the FS relocation rules would sunset ten years
    after the negotiations begin for the first FS licensee. *Id.* at ¶
    79-80 (citing *Microwave Cost Sharing First R&O and FNPRM*, 11 FCC
    Rcd 8825 at ¶ 65).

[^189]: *AWS Sixth R&O*, 19 FCC Rcd at 20754, ¶ 76. In the *AWS Third
    R&O*, the Commission reallocated the 1990-2000/2020-2025 MHz and
    2165-2180 MHz bands from the Mobile Satellite Service for Fixed and
    Mobile services to support AWS. *See generally, AWS Third R&O and
    Third NPRM,* 18 FCC Rcd 2223*.* In these bands, the legacy incumbent
    FS operations had not been relocated at the time the band was
    reallocated from MSS to Fixed and Mobile service.

[^190]: *AWS Fifth Notice* at ¶ 38.

[^191]: *AWS Fifth Notice* at ¶ 34 (citing *AWS Sixth R&O*, 19 FCC Rcd
    at 20754, ¶ 76).

[^192]: *See* CTIA Reply at 2.

[^193]: CTIA Comments at 7. *See also* T-Mobile Comments at 4-5.

[^194]: See Comsearch Comments at 7.

[^195]: *Id.* This approach might result in a series of discrete
    negotiation periods, each based on the date the first license is
    issued in each block within the 2160-2175 MHz band. This plan would
    be similar to the approach used for PCS deployment, which set
    different negotiation periods for different blocks, but in which all
    licensees within a given block were subject to the same timetable.

[^196]: In the *AWS Fifth Notice*, we also asked whether we should
    establish different sunset dates. Because we have not yet determined
    how the 2155-2175 MHz band will be made available for assignment,
    there is no basis for us to establish sunset dates that are unique
    to discrete portions of the band.

[^197]: *See* 47 C.F.R. § 101.73(a) (stating that "\[t\]his mandatory
    negotiation period is triggered at the option of the ET licensee,
    but ET licensees may not invoke their right of mandatory negotiation
    until the voluntary negotiation period has expired").

[^198]: This approach also better matches the anticipated rollout of
    service across an AWS licensee's geographic area over an extended
    time period. Because the AWS licensee will trigger the mandatory
    negotiation, new entrants will be able to determine their own
    schedule for relocating incumbent systems. Moreover, we do not
    believe that this approach will unduly delay the relocation process
    because AWS licensees have the ability to trigger the mandatory
    negotiation process well in advance of the date by which they intend
    to deploy service in a particular area.

[^199]: Thus, there potentially will be three separate sunset dates for
    the relocation of FS incumbents -- one for the 2110-2150 MHz band,
    one for the 2160-2175 MHz band, and one for the 2175-2180 MHz band.
    In the case of paired microwave links, an AWS licensee will only be
    obligated to relocate those links in bands for which the sunset date
    has not yet passed.

[^200]: *AWS Fifth Notice* at ¶ 34 (citing *AWS Sixth R&O*, 19 FCC Rcd
    at 20754, ¶ 76).

[^201]: We note that this spectrum also includes the 2180-2200 MHz band,
    in which MSS licensees are responsible for the relocation of FS
    incumbents. Because the mandatory negotiation periods have already
    ended for licensees in the 2180-2200 MHz band, our decision to
    implement individual mandatory negotiation periods in the bands that
    will host new AWS licensees does not affect the negotiation or
    relocation process for licensees in the 2180-2200 MHz band. *See* 47
    C.F.R. § 101.69(e).

[^202]: This distinction is because when the *Emerging Technologies*
    relocation rules were first adopted, fixed microwave services in the
    spectrum were regulated under Parts 21, 22, and 94, dealing with
    Common Carrier fixed point-to-point, fixed services supporting
    Paging and Radiotelephone, and Private Operational point-to-point,
    respectively. In 1996, the Commission merged the rules regulating
    Common Carrier and Private Operational services in Part 101.

[^203]: *See* Amendment of Part 22 of the Commission's Rules to Benefit
    the Consumers of Air-Ground Telecommunications Services, WT Docket
    No. 03-103, Biennial Regulatory Review\--Amendment of Parts 1, 22,
    and 90 of the Commission's Rules, Amendment of Parts 1 And 22 of the
    Commission's Rules To Adopt Competitive Bidding Rules For Commercial
    And General Aviation Air-Ground Radiotelephone Service, WT Docket
    No. 05-42, *Report and Order and Notice of Proposed Rulemaking*, 20
    FCC Rcd 4403 at ¶ 159 (2005). In contrast, Part 101 FS licensees in
    *Emerging Technologies* spectrum are not currently prohibited from
    renewing their licenses.

[^204]: *See* CTIA Comments at 13-14; Comsearch Comments at 8.

[^205]: CTIA Comments at 13-14.

[^206]: *See* 5 U.S.C. § 553(b)(B). We find good cause that notice and
    comment are unnecessary in this case because the requirements and
    references that are being deleted herein relate to the relocation
    and cost sharing obligations of PCS entrants to FS licensees in the
    1850-1990 MHz band. These obligations terminated as of April 4,
    2005. *See* "Broadband PCS Entities and Fixed Microwave Services
    Licensees Reminded of April 4, 2005 Sunset of Relocation Cost
    Compensation and Microwave Cost Sharing Rules," *Public Notice*, 20
    FCC Rcd 5141 (WTB 2005).

[^207]: *See* ArrayComm Reply at 6 (setting forth its interest in the
    provision of TDD technologies in the band by new entrants, and
    expressing concern that the *AWS Fifth Notice* served to propose the
    adoption of service rules).

[^208]: *See* *supra* note Error: Reference source not found.

[^209]: *See Microwave Cost Sharing First R&O and FNPRM*, 11 FCC Rcd
    8825, at 8861, ¶ 71; Amendment to the Commission's Rules Regarding a
    Plan for Sharing the Costs of Microwave Relocation, WT Docket No.
    95-157, *Notice of Proposed Rulemaking*, 11 FCC Rcd 1923, 1931, ¶ 16
    (1995) ("*Microwave Cost Sharing Notice*"); *see also AWS Fifth
    Notice*, 20 FCC Rcd at 15885, ¶ 43.

[^210]: *See* 47 C.F.R. § 101.82. The rule recognizes that although a
    new licensee may not receive a direct benefit by relocating a link
    in one of the bands (*e.g*., it is licensed to operate in one band
    but not both), it may relocate a paired link in that band in order
    to satisfy its obligation to provide comparable facilities to the
    incumbent FS licensee. Thus, the new licensee is entitled to
    reimbursement (50 percent of all reimbursable costs up to the cap)
    by another new licensee for relocating a link that otherwise it did
    not need to relocate to address interference. *Id.*

[^211]: *See* *AWS Fifth Notice,* 20 FCC Rcd at 15886, ¶ 44. Under the
    rule, reimbursement obligations are determined using the same
    interference analysis that governs relocation obligations. Moreover,
    the rule does not contemplate the use of a clearinghouse for
    administration.

[^212]: *See* Service Rules for Advanced Wireless Services in the
    1915-1920 MHz, 1995-2000 MHz, 2020-2025 MHz and 2175-2180 MHz Bands;
    Service Rules for Advanced Wireless Services in the 1.7 GHz and 2.1
    GHz Bands, WT Docket No. 04-356, WT Docket No. 02-353, *Notice of
    Proposed Rulemaking*, 19 FCC Rcd 19263, 19282-84, ¶¶ 46-49 (2004)
    ("*AWS-2 Service Rules NPRM*").

[^213]: *See AWS Fifth Notice*, 20 FCC Rcd at 15886, ¶ 45.

[^214]: *See id*.

[^215]: *See AWS Fifth Notice*, 20 FCC Rcd at 15886-87, ¶ 46. The
    pertinent rule provisions are set forth at Sections 24.239-24.253 of
    the Commission's Rules.

[^216]: The Part 24 cost sharing rules that applied to PCS entrants
    relocating FS incumbents from the 1850-1990 MHz band terminated on
    April 4, 2005. *See* 47 C.F.R. § 24.253; "Broadband PCS Entities and
    Fixed Microwave Services Licensees Reminded Of April 4, 2005 Sunset
    of Relocation Cost Compensation and Microwave Cost Sharing Rules,"
    *Public Notice,* 20 FCC Rcd 5141 (WTB 2005). Our overview of the
    plan here thus describes how the plan operated prior to the sunset
    date.

[^217]: *See Microwave Cost Sharing First R&O and FNPRM*, 11 FCC Rcd at
    8878, Appendix A, ¶ 3; 47 C.F.R. § 24.243.

[^218]: *See* 47 C.F.R. § 101.103(d).

[^219]: *See* 47 C.F.R. § 24.249(a).

[^220]: *See* 47 C.F.R. § 24.247.

[^221]: *See id.*

[^222]: *See* 47 C.F.R. §§ 24.243, 24.249. The cost sharing formula
    calculates a benefiting entrant's reimbursement obligation based on
    the total "actual" costs of relocation, the number of prior entrants
    that would have interfered with the link, and the number of months
    that have passed since the relocator first obtained reimbursement
    rights. 47 C.F.R. § 24.243. The number of months is factored in to
    depreciate the reimbursement obligation of new entrants over time,
    ensuring that early entrants, who receive a greater benefit from the
    relocation, also pay a larger share of the relocation costs. We note
    that "depreciation" for the purposes of cost sharing is to be
    distinguished from "depreciation" as used in the context of
    accounting for the cost of a microwave incumbent's relocation,
    *i.e.,* depreciated cost or full replacement cost.

    We also note that the *pro rata* cost sharing formula does not apply
    to a new entrant that relocates a link fully outside its market area
    or licensed frequency band. 47 C.F.R. § 24.245(c). In that
    circumstance, the relocator is entitled to 100 percent reimbursement
    of its costs from the next beneficiary without depreciation, subject
    to the reimbursement cap. *See Microwave Cost Sharing First R&O and
    FNPRM,* 11 FCC Rcd at 8884-5, Appendix A, ¶¶ 16-17. However, when
    the microwave link in question involves a paired transmit/receive
    channel system, with two separate paths in upper and lower spectrum
    bands, the full reimbursement rule may not be applicable. If the
    relocator is a new entrant in either of the paired channel frequency
    bands or market areas, *both* paths of the incumbent link will not
    be *fully outside* the relocator's licensed frequency band or
    geographic license area. Section 24.243 describes an "interfering
    microwave link" as one that is in "all or part" of the relocator's
    market area and frequency band. Therefore, a new entrant that
    interferes with one of the paths of the link will trigger relocation
    for that particular path but, to provide comparable facilities to
    the incumbent microwave operator, the entrant will nevertheless have
    to relocate both paths of the link. Under these circumstances, *pro
    rata* reimbursement under the Part 24 cost sharing plan would
    be available for the relocator of the link.

[^223]: *See* 47 C.F.R § 24.243(b). We note that this cap applied only
    to reimbursement paid to an initial relocator by a subsequent new
    licensee beneficiary; it did not operate to limit an initial
    relocator's responsibility for the costs of relocation, which was
    not subject to any cap. Self-relocating FS incumbents were also
    permitted to obtain reimbursement from benefiting entrants under the
    plan, subject to the same reimbursement cap. *See* 47 C.F.R.
    § 24.243.

[^224]: *See* 47 C.F.R. § 24.243; *Microwave Cost Sharing First R&O and
    FNPRM*, 11 FCC Rcd at 8880, Appendix A, ¶ 6.

[^225]: For a more detailed discussion of the PCS cost sharing plan, see
    the *Microwave Cost Sharing* proceeding cited at note Error:
    Reference source not found, *supra*.

[^226]: *See* 47 C.F.R. § 24.251.

[^227]: *See id.*

[^228]: *See AWS Fifth Notice,* 20 FCC Rcd at 15887, ¶ 47.

[^229]: *See AWS Fifth Notice*, 20 FCC Rcd at 15888, ¶ 47.

[^230]: *See AWS Fifth Notice*, 20 FCC Rcd at 15886, ¶ 45 (*citing AWS-2
    Service Rules NPRM,* 19 FCC Rcd at 19282-84 ¶¶ 46-49). The
    Commission invited parties that previously filed comments in
    response to the *AWS-2 Service Rules NPRM* to incorporate those
    comments by reference in the instant docket. *See id.* at n.111.

[^231]: *See AWS Fifth Notice*, 20 FCC Rcd at 15888, ¶ 48. PCIA
    suggested that, in establishing a cost sharing plan for AWS
    relocation of FS, the Commission should modify the Part 24 plan by
    (1) establishing a rule requiring licensing data to be filed by all
    entities; (2) mandating that parties are required to act in good
    faith in connection with their responsibilities under the cost
    sharing plan; (3) providing that reasonable interest charges can be
    applied to cost sharing obligations; (4) creating an explicit
    mechanism for expedited appeal to the Commission from a disputed
    clearinghouse determination; and (5) according weight to the
    determinations of the clearinghouse in such an appeal. *See id.*
    (*citing* PCIA-The Wireless Infrastructure Association (PCIA)
    Comments, WT Docket No. 02-353 (filed Dec. 8, 2004) (PCIA Comments
    to *AWS-2 Service Rules NPRM*) at 5-6).

[^232]: *See AWS Fifth Notice*, 20 FCC Rcd at 15888, ¶ 49. The Part 24
    plan delegates authority to WTB to assign the administration of the
    cost sharing rules to one or more private not-for-profit
    clearinghouses. *See* 47 C.F.R. § 24.241.

[^233]: *See AWS Fifth Notice*, 20 FCC Rcd at 15888, ¶ 49.

[^234]: *See, e.g.,* PCIA Comments at 1-4; T-Mobile Comments at 2;
    Comsearch Comments at 2-3; CTIA Comments at 14. T-Mobile contends
    that there is broad support for the adoption of cost sharing
    policies based on the policies implemented in the 1.9 GHz band
    relocation proceedings and recommends that the Commission model the
    cost sharing procedures adopted in this proceeding after the 1.9 GHz
    band rules. *See* T-Mobile Reply at 2-3, 9-10. Similarly, PCIA
    states that the Commission should apply a cost sharing framework for
    AWS based upon the model used for Broadband PCS in the 1.9 GHz band.
    *See* PCIA Comments at 1-4. CTIA also supports the use of cost
    sharing, consistent with the prior 1.9 GHz band rules, in the 2.1
    GHz band. *See* CTIA Comments at 14.

[^235]: *See* T-Mobile Comments at 4-9; T-Mobile Reply at 6-7; PCIA
    Comments at 2-8; PCIA Reply at 5-6**.**

[^236]: *See, e.g.,* T-Mobile Comments at 7-9; Comments at 7-8; PCIA
    Reply at 6. Specifically, T-Mobile contends that cash relocation
    payments should be compensable costs for purposes of cost sharing.
    *See* T-Mobile Comments at 7-8. T-Mobile also requests that the
    Commission clarify how costs involving alternative facilities should
    be documented for cost sharing and what constitutes prohibited "cost
    averaging" under the Part 24 rules. *See* T-Mobile Comments at 8;
    *see also* PCIA Comments at 7-8; PCIA Reply at 6 (asking the
    Commission to clarify that a rational division of non-link specific
    costs among several links relocated under a single contract is not
    prohibited "cost averaging").

[^237]: *See* T-Mobile Comments at 4-6.

[^238]: *See* T-Mobile Comments at 6.

[^239]: *See* PCIA Reply at 5.

[^240]: PCIA contends that the requirement to file such data with the
    clearinghouse needs to be specifically stated because such a
    requirement is currently contingent on whether a PCN for the site is
    required pursuant to 47 C.F.R. § 101.103(d). *See* PCIA Comments at
    5-6. PCIA notes that, under 47 C.F.R. § 101.103(d), a PCN is
    required only if the facilities will affect or be affected by the
    proposed new site; thus the requirement to file a PCN with the
    clearinghouse would arguably not be triggered if all of the
    microwave links in an area have already been relocated. *See* PCIA
    Comments at 5, n.4; *see also* T-Mobile Comments at 6 (explaining
    that, because the requirement to file data was premised on PCNs,
    some licensees argued that, because they believed a site caused no
    interference, no PCN, and thus, no filing with the clearinghouse,
    was needed).

[^241]: *See* T-Mobile Comments at 5-6; PCIA Comments at 5-6; PCIA Reply
    at 6 (*citing* T-Mobile Comments at 5).

[^242]: *See id*.

[^243]: *See* PCIA Comments at 5-6; PCIA Reply at 6 (*citing* T-Mobile
    Comments at 5).

[^244]: *See* T-Mobile Comments at 5 (contending that the Commission
    should definitively rule that a new entrant may trigger a cost
    sharing obligation for a relocated link only once per license,
    regardless of the size of the license); PCIA Comments at 6 (same);
    PCIA Reply at 6. According to PCIA, "numerous disputes arose as to
    why larger area licensees did not trigger an obligation for each BTA
    where sites were in the proximity box." PCIA Comments at 6.
    Therefore, it contends that the Commission should categorically
    affirm the "one license -- one trigger" rule. *See id.*

[^245]: *See* PCIA Comments at 5-6; PCIA Reply at 6. An entrant
    triggering a cost sharing obligation, pursuant to the Commission's
    Rules, would be required to fulfill that obligation in full and not
    be permitted to avoid that obligation by deconstructing its
    facilities.

[^246]: *See* PCIA Comments at 7; PCIA Reply at 6. PCIA explains its
    proposal with a hypothetical example that presumes "Relocator A pays
    \$X to relocate a microwave link, benefits from the relocation, and
    that link is triggered by Carrier B, Carrier B would owe Relocator A
    \$X/2, not considering depreciation. If the link is then triggered
    by Carrier C, Carrier C would owe (not including depreciation),
    \$X/6 to both Relocator A and Carrier B, with the net result that
    each pays \$X/3." PCIA Comments at 7. According to PCIA, "\[i\]f
    Carrier B files for bankruptcy, it is arguable that, under the
    bankruptcy laws, Carrier B may have its debt of \$X/2 to Relocator A
    extinguished, yet still legally pursue collection of \$X/6 from
    Carrier C (as occurred in the 1.9 GHz band)." *Id.* Therefore, PCIA
    contends that the Commission should "clarify that carriers are
    permitted to pay around carriers in financial distress and
    commensurately reduce their obligations. Thus, in the example above,
    Carrier C should be permitted to pay Relocator A \$X/6 as well as
    the \$X/6 owed to Carrier B, thus reducing Carrier B's obligation to
    Relocator A to \$X/3. This results in a far more equitable
    distribution of sharing payments." *Id.*

[^247]: *See* 47 C.F.R. § 24.245(a), (b).

[^248]: *See* 47 C.F.R. §§ 24.243, 24.249. The cost sharing formula
    calculates a benefiting entrant's reimbursement obligation based on
    the total "actual" costs of relocation, the number of prior entrants
    that would have interfered with the link, and the number of months
    that have passed since the relocator first obtained reimbursement
    rights. *See* 47 C.F.R. § 24.243. The number of months is factored
    in to depreciate the reimbursement obligation of new entrants over
    time, ensuring that early entrants, who receive a greater benefit
    from the relocation, also pay a larger share of the relocation
    costs.

[^249]: *See* T-Mobile Comments at 6-7; PCIA Comments at 6; PCIA Reply
    at 6.

[^250]: *See* PCIA Comments at 7; T-Mobile Comments at 7.

[^251]: *See* PCIA Comments at 7; T-Mobile Comments at 7. Under this
    approach, licensees themselves, not the clearinghouse, will be
    responsible for maintaining documentation of cost issues, with link
    registrants required to maintain documentation until the sunset
    date. *See* T-Mobile Comments at 4.

[^252]: *See* PCIA Comments at 7-8; PCIA Reply at 6. PCIA also proposes
    that the Commission clarify that relocatees retain the discretion to
    decide how to use their relocation funds and need not submit
    receipts or proof of expenditures. *See* PCIA Comments at 7-8; PCIA
    Reply at 6; *see also* T-Mobile Comments at 8 (arguing that
    relocating entities are not required to document, beyond the
    submission of a relocation contract, how the incumbent actually uses
    relocation funds).  

[^253]: *See* PCIA Comments at 5; PCIA Reply at 5.

[^254]: *See* T-Mobile Comments at 9.

[^255]: *See* T-Mobile Comments at 5; PCIA Comments at 4.

[^256]: *See* PCIA Comments at 4.

[^257]: *See id.*

[^258]: *See AWS Fifth Notice*, 20 FCC Rcd at 15887-88, ¶ 47.

[^259]: The Commission has found that the Part 24 cost sharing rules
    have promoted "an efficient and equitable relocation process . . .
    ." *See Microwave Cost Sharing Memorandum Opinion and Order on
    Reconsideration*, 15 FCC Rcd at 14003, ¶ 8.

[^260]: *See AWS Fifth Notice*, 20 FCC Rcd at 15888, ¶ 47.

[^261]: *See id.*

[^262]: *See, e.g.,* PCIA Comments at 1-4; T-Mobile Comments at 2;
    Comsearch Comments at 2-3; CTIA Comments at 14.

[^263]: *AWS Fifth Notice,* 20 FCC Rcd at 15883, ¶ 34.

[^264]: *See id.*

[^265]: As noted above, the *AWS Fifth Notice* invited parties that
    previously filed comments in response to the *AWS-2 Service Rules
    NPRM* to incorporate those comments by reference. *See AWS Fifth
    Notice,* 20 FCC Rcd at 15886, n.111. We have taken comments filed in
    WT Docket No. 02-353 addressing this issue fully into consideration
    in concluding that the goals of this proceeding and the public
    interest would best be served by adopting cost sharing rules that
    will be uniformly applied to AWS entrants in the 2110-2150 MHz,
    2160-2175 MHz, and 2175-2180 MHz bands. *See, e.g.,* T-Mobile
    Comments, WT Docket No. 02-353 (filed Dec. 8, 2004); PCIA Comments
    to *AWS-2 Service Rules NPRM*; CTIA Reply Comments, WT Docket No.
    02-353 (filed Feb. 8, 2005).

[^266]: *See, e.g.*, 47 C.F.R. §§ 24.239, 24.245.

[^267]: *See Microwave Cost Sharing Second R&O*, 12 FCC Rcd at 2717-8,
    ¶¶ 25-28; 47 C.F.R. § 24.243.

[^268]: *See Microwave Cost Sharing Second R&O*, 12 FCC Rcd at 2717-18,
    ¶¶ 25-29.

[^269]: In doing so, we note that service rules have not yet been
    adopted in the 2160-2175 MHz band, which is part of a twenty
    megahertz band of spectrum that has been allocated and designated
    for AWS. *See* Amendment of Part 2 of the Commission's Rules to
    Allocate Spectrum Below 3 GHz for Mobile and Fixed Services to
    Support the Introduction of New Advanced Wireless Services,
    including Third Generation Wireless Systems, ET Docket No. 00-258,
    *Eighth Report and Order*, 20 FCC Rcd 15866 (2005).

[^270]: *See MSS Third R&O*, 18 FCC Rcd at 23673, ¶ 73 (a reimbursement
    scheme for voluntary self-relocation was not envisioned by the
    MSS/FS relocation plan and thus a cost sharing plan for MSS
    reimbursing FS incumbents who voluntarily relocate was not
    warranted). The cost sharing obligations for MSS downlink
    space-to-Earth operations in the 2180-2200 MHz band are governed by
    47 C.F.R. § 101.82.

[^271]: *See AWS Fifth Notice*, 20 FCC Rcd at 15889, ¶ 50, n.129.

[^272]: T-Mobile Comments at 6-7; PCIA Comments at 6; PCIA Reply at 6.

[^273]: *See, e.g., Microwave Cost Sharing First R&O and FNPRM*, 11 FCC
    Rcd at 8827, ¶ 1, 8861-2, ¶ 71 (cost sharing plan will promote
    expeditious clearing of the band in an equitable and efficient
    manner, which benefits microwave incumbents as well as PCS
    licensees); *Microwave Cost Sharing Second R&O*, 12 FCC Rcd at 2708,
    ¶ 6, 2716, ¶ 25 (allowing incumbents to self-relocate and obtain
    reimbursement rights will further expedite clearing of the band by
    giving microwave incumbents the option of avoiding time-consuming
    negotiations).

[^274]: *See Microwave Cost Sharing Second R&O*, 12 FCC Rcd at 2717, ¶
    26.

[^275]: *See* PCIA Reply at 5.

[^276]: The site-specific data must at least include the applicant's
    name and address, the name of the transmitting base station, the
    geographic coordinates corresponding to that base station, the
    frequencies and polarizations to be added, changed, or deleted, and
    the emission designator. Because this information is included in the
    prior coordination notice (PCN) required by 47 C.F.R. § 101.103(d),
    entities can satisfy the site data filing requirement by submitting
    their PCN to the clearinghouse instead.

[^277]: However, we will continue to require entrants and licensees to
    comply with the coordination requirements set forth in Parts 24, 27,
    and 101 of the Commission's Rules. *See, e.g.,* 47 C.F.R. § 24.237
    (PCS licensees must coordinate their frequency usage with co-channel
    or adjacent channel FS incumbents before initiating operations from
    any base stations); 47 C.F.R. § 27.1131 (all AWS licensees, prior to
    initiating operations, must coordinate their frequency usage with
    co-channel and adjacent channel incumbent, Part 101 fixed
    point-to-point microwave licensees in the 2110-2155 MHz band, in
    accordance with 47 C.F.R. § 24.237); 47 C.F.R. § 101.103(d)
    (proposed frequency usage must be prior coordinated with existing
    licensees).

[^278]: *See discussion supra* para. 67.

[^279]: *See, e.g., Microwave Cost Sharing First R&O and FNPRM*, 11 FCC
    Rcd at 8892-3, Appendix A ¶¶ 32-33 (The Proximity Threshold Test is
    less expensive and easier to administer than the interference
    criteria of TIA TSB 10-F because under the test, a PCS base station
    will either fall inside the reimbursement "box" or out of it.)

[^280]: Because, as explained below, we are relying on the use of a
    bright-line test to determine whether an entrant benefits from the
    relocation of an FS incumbent, AWS licensees have no incentive to
    "engineer around" an FS incumbent that has already been relocated.
    In that instance, the AWS entrant will nonetheless trigger a cost
    sharing obligation pursuant to the Proximity Threshold Test.

[^281]: In the *Microwave Cost Sharing First R&O*, the Commission
    explained the benefits of adopting a bright-line test in its
    decision to move away from the TIA TSB 10-F interference standard
    toward a more streamlined, simplified process of determining
    interference for purposes of our cost sharing plan. *See Microwave
    Cost Sharing First R&O and FNPRM*, 11 FCC Rcd at 8892, Appendix A ¶
    33.

[^282]: *See Microwave Cost Sharing First R&O and FNPRM*, 11 FCC Rcd at
    8892, Appendix A ¶ 33; *see also* 47 C.F.R. § 24.239 (requiring all
    entrants that benefit from the clearance of spectrum by other
    entrants to contribute to such relocation costs).

[^283]: *See, e.g., Microwave Cost Sharing First R&O and FNPRM*, 11 FCC
    Rcd at 8892, Appendix A ¶ 33.

[^284]: Once an entrant submits its site-specific data with the
    clearinghouse and triggers a cost sharing obligation because it is
    within the Proximity Threshold "box," it is required to pay its cost
    sharing obligations in full. The "post-trigger" deconstruction or
    modification of the entrant's facilities will neither eliminate nor
    mitigate such payment obligations.

[^285]: *See* 47 C.F.R. § 24.243.

[^286]: *See* PCIA Comments at 7; *see infra,* note 39 (discussing
    PCIA's proposal).

[^287]: *See* T-Mobile Comments at 9. Specifically, "T-Mobile suggests
    that the Commission explicitly approve the charging of interest on
    cost sharing obligations starting 60 days after the invoice date as
    long as interest charges conform with the IRS default rate." *Id.*

[^288]: *See* PCIA Comments at 5; PCIA Reply at 5.

[^289]: Consistent with the Part 24 rules, entrants will be required to
    satisfy their cost sharing obligations within 30 days of receiving
    written notification of the amount due. *See, e.g.,* 47 C.F.R. §
    24.249.

[^290]: *See, e.g., Microwave Cost Sharing First R&O and FNPRM*, 11 FCC
    Rcd at 8865, ¶ 80.

[^291]: *See* T-Mobile Comments at 8.  Under the FS comparable
    facilities requirement, a relocator must compensate a relocated
    incumbent for any increased recurring costs by paying the recurring
    costs for a five year period, or else paying the present value of
    these payments in a lump sum using current interest rates. As the
    compensation for increased recurring charges represents part of the
    actual costs of relocation, relocators are entitled to seek
    reimbursement of the compensation from other beneficiaries.  *See
    Microwave Cost Sharing First R&O and FNPRM*, 11 FCC Rcd at 8842, ¶
    31.

[^292]: *See* 47 C.F.R. § 24.253.

[^293]: Specifically, in this *Ninth R&O,* for the 2110-2150 MHz,
    2160-2175 MHz, and 2175-2180 MHz bands, we establish relocation
    sunset dates of ten years after the first AWS license is issued in
    each band. *See supra* ¶¶ 58-60.

[^294]: For this reason, we clarify that the sunset date(s) for cost
    sharing purposes is governed by the relocation sunset date(s) for
    the AWS band(s) in which the relocated FS link(s) was located.

[^295]: We clarify that a clearinghouse determines when an entrant
    triggered a cost sharing obligation pursuant to the Proximity
    Threshold Test adopted herein and explained above. Regardless of the
    reason, entrants that somehow evade notifying the clearinghouse of
    the fact that they triggered a cost sharing obligation will
    nevertheless be responsible for the full payment of their
    obligation.

[^296]: 47 C.F.R. § 24.241.

[^297]: *See AWS Fifth Notice*, 20 FCC Rcd at 15888, ¶ 49.

[^298]: *See* PCIA Comments to *AWS-2 Service Rules NPRM* at 6-8; CTIA
    Reply to *AWS-2 Service Rules NPRM* at 12‑13.

[^299]: *See* 47 C.F.R. § 24.251.

[^300]: *See* T-Mobile Comments at 5; PCIA Comments at 4.

[^301]: *See* PCIA Comments at 7; T-Mobile Comments at 4.

[^302]: *See* 47 C.F.R. § 24.245(b).

[^303]: *See* 47 C.F.R. § 24.245(a)(1)-(2).

[^304]: We will also continue to utilize the list of compensable
    costs enumerated in Section 24.243(b) as the starting point for
    determining reimbursement for incumbent microwave facilities.  This
    is consistent with the Commission's conclusion in the *Microwave
    Cost Sharing First R&O *that the list "should be illustrative, not
    exhaustive, because some actual relocation expenses might not fit
    neatly into one of these categories." *See Microwave Cost Sharing
    First R&*O, 11 FCC at 8886-7, ¶ 20.  Therefore, specific questions
    as to compensable costs will be addressed on a case-by-case basis
    through the clearinghouse process enumerated above. 

[^305]: *See* PCIA Comments at 7-8; PCIA Reply at 6.

[^306]: *See, e.g.,* *Emerging Technologies R&O and MO&O*, 8 FCC Rcd
    6589, 6595, ¶¶ 15-16 (1993); *Microwave Cost Sharing First R&O and
    FNPRM*, 11 FCC Rcd at 8838, ¶¶ 20-22; *MSS* *Second R&O*, 15 FCC Rcd
    12315, ¶ 47.

[^307]: *See id.*

[^308]: *See id.*

[^309]: *See AWS Fifth Notice*, 20 FCC Rcd at 15889, ¶ 50 (*citing* 47
    C.F.R. § 101.82). The rule recognizes that although a new licensee
    may not receive a direct benefit by relocating a link in one of the
    bands (*e.g*., it is licensed to operate in one band but not both),
    it may relocate a paired link in that band in order to satisfy its
    obligation to provide comparable facilities to the incumbent FS
    licensee. Thus, the new licensee is entitled to reimbursement (50
    percent of all reimbursable costs up to the cap) by another new
    licensee for relocating a link that otherwise it did not need to
    relocate to address interference. *Id.*

[^310]: *Id.*

[^311]: *See id.* (*citing* *MSS Second R&O*, 15 FCC Rcd 12315,
    12345-47, ¶¶ 95-102 (any subsequently entering licensee that cannot
    demonstrate that it would not have interfered with the microwave
    link is required to participate in reimbursing the relocator and
    depreciation does not apply)).

[^312]: *Id.*

[^313]: For additional information on MSS ATC, *see generally*
    Flexibility for Delivery of Communications by Mobile Satellite
    Service Providers in the 2 GHz Band, the L-Band, and the 1.6/2.4 GHz
    Bands, IB Docket No. 01-185, *Report and Order and Notice of
    Proposed Rulemaking*, 18 FCC Rcd 1962 (2003), *Order on
    Reconsideration*, 18 FCC Rcd 13590 (2003).

[^314]: TMI/TerreStar Comments at 4. "While the current rules establish
    an unambiguous basis for sharing relocation costs among the initial
    MSS and subsequent AWS licensees, the *AWS Fifth Notice* recognizes
    that the rules do not provide an express mechanism for implementing
    this regime. TMI/TerreStar consequently support the FCC's proposal
    to grant MSS licensees the right (but not the obligation) to obtain
    reimbursements through the Part 24 clearinghouse arrangement that
    has been proposed for resolving claims for shared relocation costs
    among AWS licensees." *Id.*

[^315]: PCIA Reply at 2-3, n.6.

[^316]: TMI/TerreStar at 5-6.

[^317]: TMI/Terrestar Comments at 6-7.

[^318]: TMI/TerreStar Comments at 7.

[^319]: *Id*. TMI/TerreStar state that some incumbent microwave
    licensees may not be relocated until after TMI/Terrestar begin
    service in 2008; also, that the identity of AWS licensees in some
    paired microwave bands may not be known until after 2008.

[^320]: Comsearch Comments at 7, n.10; PCIA Reply at 3; TMI/Terrestar
    *Ex Parte*, filed Feb. 3, 2006, at 2-3; T‑Mobile Reply at 5. *See
    also* TMI/TerreStar Comments at 6 ("\[T\]he FCC should expressly
    harmonize the AWS-AWS and MSS-AWS standards . . . \[to the\] fixed
    and easily administered . . . 'Proximity Threshold Test' . . . and
    not the MSS-MSS interference showing criteria stated in Section
    101.82. \[A\]dopting such criteria is essential for the efficient
    operation of the clearinghouse and will benefit all concerned . . .
    . "); TMI/TerreStar *Ex Parte*, filed Feb. 3, 2006, at 3 ("So far as
    cost sharing between MSS space segment providers is concerned,
    Section 101.82 should continue to apply as the Proximity Threshold
    Test is plainly inapposite.").

[^321]: T-Mobile Reply at 5.

[^322]: PCIA Reply at 3, n.9.

[^323]: PCIA Reply at 3-4.

[^324]: Comsearch Comments at 4.

[^325]: Comsearch Comments at 2-3 (quoting *AWS Fifth Notice*, 20 FCC
    Rcd at 15889, ¶ 50).

[^326]: Comsearch Comments at 3.

[^327]: PCIA Reply at 2-3, n.6. "MSS licensees, like others, should be
    free to negotiate alternative arrangements, but that does not
    obviate the need to file data with the clearinghouse to accurately
    track sharing obligations as they relate to third parties." *Id.*

[^328]: Comsearch Comments at 2. Comsearch acknowledges the Commission's
    conclusion not to change the relocation and cost sharing rules
    applicable to MSS, because MSS licensees are "'currently in the
    midst of the implementation and relocation process.'" *Id.*
    (*quoting AWS Fifth Notice*, 20 FCC Rcd at 15889, ¶ 50). However,
    Comsearch disagrees and urges reconsideration because Comsearch
    "does not believe that any significant relocation efforts by MSS
    licensees have already taken place \[and\] because it is quite
    likely that AWS licensees will undertake significant relocation
    efforts before MSS licensees." *Id.*

[^329]: Comsearch Comments at 2, 5-6; Comsearch Reply at 4-5 ("*All*
    entities should be required to file site data with the clearinghouse
    using the prior coordination notice (PCN) method \[and required to\]
    maintain the accuracy of any data. This rule should apply to all MSS
    downlink designs and ATC deployments . . . to effectively monitor
    cost sharing obligations due from any later entering MSS systems.").

[^330]: Comsearch Comments at 6 (noting that Commission has identified
    TIA TSB 86 as the applicable standard for use in determining
    relocation obligations in the case of satellite downlink
    interference into terrestrial receivers, and identified TIA TSB 10-F
    as an appropriate standard for ATC systems) (*citing MSS Second
    R&O*, 15 FCC Rcd at 12345-47 ¶ 78 and *MSS Third R&O*, 18 FCC Rcd
    23638, 23672, ¶ 70).

[^331]: As discussed herein, an AWS licensee's cost sharing obligation
    would be based on the Proximity Threshold Test.

[^332]: *MSS Second R&O*, 15 FCC Rcd at 12346, ¶ 97.

[^333]: *MSS Third R&O*, 18 FCC Rcd at 23672, ¶¶ 70-71 *citing* *MSS
    Second R&O*, 15 FCC Rcd at 12346, ¶ 97, n.160 (in the case of
    terrestrial new service/FS interference, the relevant standard is
    found in TIA TSB 10-F or any standard successor).

[^334]: *MSS Third R&O*, 18 FCC Rcd at 23672, ¶ 71, n.186 (*citing* 47
    C.F.R. § 101.105(c)).

[^335]: *See supra* ¶ 79.

[^336]: *See, e.g., Microwave Cost Sharing First R&O and FNPRM*, 11 FCC
    Rcd at 8892, Appendix A ¶¶ 32-33. Thus, the Proximity Threshold Test
    will be used to determine (1) when an AWS licensee is obliged to
    reimburse an MSS (including ATC) operator that relocated a microwave
    link, and (2) when an ATC operator is obliged to reimburse an AWS
    licensee that relocated a microwave link.

[^337]: *MSS Third R&O*, 18 FCC Rcd at 23672, ¶ 70.

[^338]: *See, e.g.*, *Microwave Cost Sharing First R&O and FNPRM*, 11
    FCC Rcd at 8893-94, Appendix A ¶¶ 33-34. (excluding adjacent channel
    interference as a trigger for cost sharing greatly simplifies the
    cost sharing plan and eliminates many possible disagreements over
    whether a system would have caused or experienced adjacent channel
    interference).

[^339]: *See, e.g.*, *id*. at 8893, ¶ 33 (a base station will either
    fall inside the reimbursement "box" or outside of it and this
    approach will permit existing and prospective providers to project
    their cost sharing obligations more accurately).

[^340]: *MSS Second R&O*, 15 FCC Rcd at 12340-41, ¶ 78 (adopted TIA TSB
    86 as the standard for assessing interference) and *id.,*15 FCC Rcd
    at 12346, ¶ 97 (MSS licensee will not be required to reimburse
    initial licensee for relocation expenses where interference modeling
    in accordance with TIA TSB 86 indicates that MSS licensee could have
    successfully shared spectrum with a FS microwave incumbent).

[^341]: *See* 47 C.F.R. § 101.79(a).

[^342]: *See MSS Third R&O*, 18 FCC Rcd at 23678; *recon. denied,* 19
    FCC Rcd 20720 (2004).

[^343]: *See supra* ¶ 82.

[^344]: *See MSS Third R&O*, 18 FCC Rcd at 23673, ¶ 73.

[^345]: *MSS Second R&O*, 15 FCC Rcd at 12347, ¶ 101.

[^346]: *See AWS Fifth Notice*, 20 FCC Rcd at 15889, ¶ 50, n.129.

[^347]: *See supra* ¶ 77.

[^348]: *See AWS Fifth Notice*, 20 FCC Rcd at 15888-89, ¶¶ 47, n.124,
    50.

[^349]: *See* 47 C.F.R. § 101.69(e).

[^350]: *AWS Fifth Notice*, 20 FCC Rcd at 15889, ¶ 51.

[^351]: *Id.*

[^352]: *Id.*

[^353]: *Id.*

[^354]: *Id.*

[^355]: *Id.*, 20 FCC Rcd at 15890, ¶ 52.

[^356]: *Id.*

[^357]: *See* CTIA Comments at 14 ("all those that benefit from the
    relocation of BRS incumbents should be required to pay a
    proportional share of the costs of relocation"); PCIA Comments at
    2-3; T-Mobile Comments at 2, 4; WCA Comments at 2, n.41 (stating
    that "\[t\]here is no doubt that multiple AWS licensees will benefit
    from most BRS relocations and thus cost sharing may be
    appropriate"); Comsearch Reply at 4; PCIA Reply at 4; US Cellular
    Reply at 4.

[^358]: *See* Sprint Nextel Comments at 2, n.3 ("AWS licensees should be
    free to seek reimbursement for relocation expenses from new entrants
    that occupy the 2155-2162 MHz band once the spectrum above 2155 MHz
    is licensed.").

[^359]: PCIA Comments at 3; T-Mobile Comments at 4; CTIA Reply at 9.

[^360]: CTIA Reply at 9.

[^361]: US Cellular Reply at 4; *see also* Sprint Nextel Comments at 2,
    n.3.

[^362]: US Cellular Reply at 4.

[^363]: Comsearch Reply at 3, n.10.

[^364]: T-Mobile Reply at 5.

[^365]: *See* CTIA Comments at 7, 9-10.

[^366]: *Id.*

[^367]: *See* CTIA Comments at 14; Comsearch Reply at 2, 4; PCIA Reply
    at 4. However, as noted below, WCA, though not opposed to the use of
    a cost-sharing clearinghouse, expresses the view that a third-party
    administrator is not needed to oversee the relocation process "due
    to the relatively limited number of BRS facilities that will need to
    be relocated . . . and the fact that most are likely to be relocated
    pursuant to private agreements negotiated among AWS licensees, BRS
    licensees and BRS spectrum lessees . . . ." WCA Comments at 22.

[^368]: Comsearch Reply at 4.

[^369]: PCIA Reply at 4.

[^370]: CTIA Comment at 14.

[^371]: *See* CTIA Comments at 14; PCIA Comments at 3; T-Mobile Comments
    at 4; Comsearch Reply at 4; PCIA Reply at 4; US Cellular Reply at 4.

[^372]: We emphasize that our conclusions with regard to the appropriate
    rules, procedures, and implementation of cost sharing for BRS
    relocation apply only to the relocation of BRS incumbents in the
    2150-2160/62 MHz band. Nothing in this discussion should be taken to
    prejudge or apply to issues regarding the transition of incumbents
    in the 2.5 GHz spectrum to the new BRS/EBS band plan.

[^373]: *See* PCIA Comments at 3; T-Mobile Comments at 4; CTIA Reply at
    9.

[^374]: At this time, we make no determination of whether a
    clearinghouse must provide administration for both FS and
    BRS-related cost sharing.

[^375]: As noted above BRS systems licensed after 1992 to use the
    2160-2162 MHz band operate in that spectrum on a secondary basis and
    are not entitled to relocation. *See supra,* ¶ 25. We clarify that
    if AWS licensees relocate a system operating in the 2160-62 MHz band
    on a secondary basis and voluntarily agree with the incumbent to be
    responsible for the entire costs of relocation, including the costs
    of relocating the 2160-62 MHz band, the costs attributable to the
    relocation of the 2160-62 MHz band constitute a "premium" to the
    incumbent and may not be recovered through the cost sharing process.
    Accordingly, in such a case, the relocator must deduct from the
    actual costs of relocation it submits to the clearinghouse a *pro
    rata* share of the costs associated with the 2160-2162 MHz band. If
    the system operated in the 2160-62 MHz band on a primary basis, no
    such deduction is necessary.

[^376]: US Cellular Reply at 4. Sprint Nextel asserts that "\[t\]he
    mechanics of the interference from AWS base stations in non-adjacent
    AWS channel blocks are the same as for the co-channel interference
    described here" and that "AWS base stations in the AWS Blocks A-E
    will cause harmful interference to highly sensitive BRS 1-2 receive
    station hubs . . . ." Sprint Nextel Comments at 16, n.29. Thus,
    Sprint Nextel advocates using the same line-of-sight test for AWS
    entrants whether operating in spectrum that is co-channel to BRS
    system spectrum or not. *See id.* at 17. As noted above, however, we
    find that whether licensees in the A-E blocks can operate within
    line of sight of a BRS system without causing harmful interference
    can only be determined on a complex case-by-case analysis. *See
    supra*, ¶¶ 53-54.

[^377]: As with the test for triggering relocation, parties applying
    this cost sharing test should follow the line-of-sight determination
    method described in Appendix D of the *Two-Way R&O and FNRPM*,
    Appendix D, 15 FCC Rcd 14566, 14625, 14626 (2000) (describing the
    method of determining whether a path between a transmitter and a
    receiver is line of sight).

[^378]: *See* WCA Comments at 36-37; *see also* 47 C.F.R. § 21.902(f)(5)
    (2004). This provision specifies that a line-of-sight determination
    should be based on the assumption that a BRS receiving antenna is
    installed 30 feet above ground level at each point in the GSA,
    determination of the actual height of the proposed station's
    transmitting antenna and actual terrain elevation data, and assuming
    4/3 Earth radius propagation conditions. *Id.* We also note that any
    AWS transmitter within the GSA will necessarily satisfy the
    line-of-sight test in this case, and thus, the need for a
    line-of-sight analysis is obviated.

[^379]: *See* Comsearch Reply at 3 n.10. T-Mobile does advocate
    adopting, as an alternative to the line-of-sight test, a "version of
    the proximity threshold \[test\] used in the 1.9 GHz relocation
    process . . . ." T-Mobile Reply at 5. However, it offers no
    suggestion as to what that version would look like.

[^380]: *See* *supra*, ¶¶ above-52.

[^381]: *See supra*, ¶ 51. *See also* CTIA Comments at 5, 6 n.19
    (describing the line-of-sight test as "a bright line test" that
    provides the "simplest, most equitable, and most cost-effective
    manner of protecting AWS and BRS licensees against interference . .
    . .").

[^382]: For example, PCIA emphasized the "need . . . for clarity in the
    rules and unambiguous, straight forward criteria for assessing
    reimbursement and cost sharing." PCIA Reply at 4. PCIA argued that,
    "\[o\]nly then will AWS licensees be able to accurately predict the
    financial ramifications of BRS clearing in their pre-auction
    strategic planning." *Id.* PCIA therefore urged the Commission, "in
    resolving the BRS relocation issues, to apply bright line tests to
    achieve the best and most efficient transition practicable." *Id.
    See* *also* PCIA Comments at 5 ("Having a bright line test
    eliminated many disputes over whether an entity was obligated under
    the \[cost\] sharing rules."); T-Mobile Reply at 5 (agreeing "with
    those commenters advocating the efficacy of bright-line tests").

[^383]: *See* *supra* ¶¶ 13-14.

[^384]: There are twelve Regional Economic Area Groupings (REAGs), the
    first six covering the continental United States and the other six
    covering smaller areas (*i.e.*, Alaska, Hawaii, the islands, and the
    Gulf of Mexico). 47 C.F.R. § 27.6(a)(1).

[^385]: *See* PCIA Reply at 4.

[^386]: Thus, if the relocation process is extended due to an incumbent
    exercising the right of return or asserting defects in the new
    facilities that need to be remedied, the deadline to register the
    system will also be extended.

[^387]: As explained in our discussion of the cost sharing rules for FS
    relocation above, we require all AWS licensees constructing new
    sites or modifying existing sites to file site-specific data with
    the clearinghouse prior to initiating operations. *See* *supra*, ¶
    78. The site data must provide a detailed description of the
    proposed site's spectral frequency use and geographic location. We
    will also impose a continuing duty on those entities to maintain the
    accuracy of the data on file with the clearinghouse. We find that
    such an approach will ensure fairness in the process and preclude
    new entrants from conducting independent interference studies for
    the purpose or effect of evading the requirement to file
    site-specific data with the clearinghouse prior to initiating
    operations. However, we will continue to require entrants and
    licensees to comply with the coordination requirements currently set
    forth in the Commission's Rules. *See, e.g.,* 47 C.F.R. § 24.249(a)
    (new entrant must file PCN with clearinghouse); 47 C.F.R. §
    101.103(d) (proposed frequency usage must be prior coordinated with
    existing licensees).

[^388]: Because the cost sharing regime depends critically on a
    clearinghouse having accurate information, we strongly emphasize
    that AWS licensees are responsible for both providing all requisite
    information on a timely basis and for ensuring that the
    clearinghouse is informed on a timely basis of any changes to that
    data.

[^389]: *See* *Microwave Cost Sharing Notice*, 11 FCC Rcd 1923, 1937-38,
    ¶ 32 (1995); *Microwave Cost Sharing First R&O and FNPRM*, 11 FCC
    Rcd 8825, 8884, Appendix A ¶ 16 (1996).

[^390]: By comparison, the PCS rules treat a microwave link as
    non-interfering if it is (1) fully outside the relocator's spectrum
    or (2) fully outside the relocator's licensed market area. *See* 47
    C.F.R. § 24.245(c).

[^391]: Thus, because a relocator is not responsible for reimbursing an
    incumbent's internal costs, *see supra*, ¶ **40**, they likewise may
    not be recovered through a cost-sharing obligation.

[^392]: *See* 47 C.F.R. § 24.245(b).

[^393]: *See id.*

[^394]: As we have with documentation on FS relocation, *see supra*, ¶
    84, we require relocators of BRS systems, after registering a
    relocated system for cost-sharing purposes, to maintain
    documentation of cost related issues records until the applicable
    cost-sharing sunset date and to provide such documentation, upon
    request, to the clearinghouse, the Commission, or entrants that
    trigger a cost sharing obligation. As above, we do not require the
    clearinghouse to maintain cost documentation, including the
    appraisals, for examination by either licensees, nor do we prohibit
    it from doing so.

[^395]: We also note that the cost of the third-party appraisal may be
    included in a claim for reimbursement.

[^396]: Parties bringing such disputes may choose whether to seek
    binding resolution from the clearinghouse or not. If they opt out of
    binding resolution, the general rules for dispute resolution will
    apply, except that in all cases, the relocator will bear the
    elevated burden of proof.

[^397]: We address the requirements for a good faith challenge to a
    reimbursement claim above in connection with cost sharing for FS
    relocation. *See* *supra*, ¶ 84. As with FS cost sharing, we require
    all parties to the BRS cost-sharing process to act in good faith in
    either registering reimbursement claims or making challenges to such
    claims.

[^398]: We note that the obligation to file new or modified site data
    may not be waived by agreement.

[^399]: 47 C.F.R. § 24.249(a), (b).

[^400]: *See supra*, ¶ 80.

[^401]: Service Rules for Advanced Wireless Services in the 1.7 GHz and
    2.1 GHz Bands, WT Docket No. 02-353, *Report and Order*, 18 FCC Rcd
    25162 (2003) ("*AWS-1 Service Rules Order*"). We previously
    addressed five petitions for reconsideration of the *AWS-1 Service
    Rules Order* and stated that we would address WCA's petition for
    reconsideration of the criteria for AWS licensees to protect
    incumbent BRS operations in the 2150-2160 MHz band in a subsequent
    order. *See* Service Rules for Advanced Wireless Services in the 1.7
    GHz and 2.1 GHz Bands, WT Docket No. 02-353, *Order on
    Reconsideration*, 20 FCC Rcd 14058 (2005).

[^402]: *See* 47 C.F.R. § 27.1132 (Protection of Part 21 operations).
    *See also supra* note Error: Reference source not found.

[^403]: Petition for Reconsideration filed by the Wireless
    Communications Association International, Inc. (WCA) on March 8,
    2004, WT Docket No. 02-353 ("WCA Petition").

[^404]: WCA Petition at 7 (*quoting* *AWS-1 Service Rules Order* at ¶
    109).

[^405]: WCA Petition at 2, 7-8.

[^406]: WCA Petition at 7 (*quoting AWS Service Rules R&O* at ¶ 115 &
    n.92).

[^407]: WCA Petition at 3.

[^408]: *See Ninth R&O*, *supra* (adopting interference criteria based
    on the line-of-sight criteria that protected MDS under former Part
    21 and MM Docket No. 97-217, and requiring AWS licensees in the
    2110-2155 MHz band, prior to operating a base station that would
    cause harmful interference to incumbent BRS operations in the
    2150-2160/62 MHz band, to either relocate the BRS operations or
    undertake system modifications).

[^409]: *See* 5 U.S.C. § 603. The RFA, *see* 5 U.S.C. § 601 -- 612, has
    been amended by the Small Business Regulatory Enforcement Fairness
    Act of 1996 (SBREFA), Pub. L. No. 104-121, Title II, 110 Stat. 857
    (1996).

[^410]: Amendment of Part 2 of the Commission's Rules to Allocate
    Spectrum Below 3 GHz for Mobile and Fixed Services to Support the
    Introduction of New Advanced Wireless Services, including Third
    Generation Wireless Systems, ET Docket No. 00-258, *Eighth Report
    and Order, Fifth Notice of Proposed Rule Making and Order*, 20 FCC
    Rcd 15866 (2005).

[^411]: 5 U.S.C. § 604.

[^412]: The Multipoint Distribution Service (MDS) was renamed the
    Broadband Radio Service (BRS). *See* Amendment of Parts 1, 21, 73,
    74 and 101 of the Commission's Rules to Facilitate the Provision of
    Fixed and Mobile Broadband Access, Educational and Other Advanced
    Services in the 2150-2162 MHz Band, WT Docket No. 03-66, *Report and
    Order and Further Notice of Proposed Rulemaking*, 19 FCC Rcd 14165
    (2004).

[^413]: *See* Redevelopment of Spectrum to Encourage Innovation in the
    Use of New Telecommunications Technologies, ET Docket No. 92-9,
    *First Report and Order and Third Notice of Proposed Rule Making*, 7
    FCC Rcd 6886 (1992); *Second Report and Order*, 8 FCC Rcd 6495
    (1993); *Third Report and Order and Memorandum Opinion and Order*, 8
    FCC Rcd 6589 (1993); *Memorandum Opinion and Order*, 9 FCC Rcd 1943
    (1994); *Second Memorandum Opinion and Order*, 9 FCC Rcd 7797
    (1994); *aff'd Association of Public Safety Communications
    Officials-International, Inc. v. FCC*, 76 F.3d 395 (D.C. Cir. 1996)
    (collectively, "*Emerging Technologies* proceeding"). *See also
    Teledesic, LLC v. FCC*, 275 F.3d 75 (D.C. Cir. 2001) (affirming
    modified relocation scheme for new satellite entrants to the 17.7 --
    19.7 GHz band). *See also* Amendment to the Commission's Rules
    Regarding a Plan for Sharing the Costs of Microwave Relocation, WT
    Docket No. 95-157, *First Report and Order and Further Notice of
    Proposed Rule Making* , 11 FCC Rcd 8825 (1996); *Second Report and
    Order*, 12 FCC Rcd 2705 (1997) (collectively, *Microwave Cost
    Sharing* proceeding).

[^414]: 5 U.S.C. § 604(a)(3).

[^415]: 5 U.S.C. § 601(6).

[^416]: 5 U.S.C. § 601(3) (incorporating by reference the definition of
    "small business concern" in the Small Business Act, 15 U.S.C. §
    632). Pursuant to 5 U.S.C § 601(3), the statutory definition of a
    small business applies "unless an agency, after consultation with
    the Office of Advocacy of the Small Business Administration and
    after opportunity for public comment, establishes one or more
    definitions of such term which are appropriate to the activities of
    the agency and publishes such definition(s) in the Federal
    Register."

[^417]: 15 U.S.C. § 632.

[^418]: Amendment of Parts 21 and 74 of the Commission's Rules with
    Regard to Filing Procedures in the Multipoint Distribution Service
    and in the Instructional Television Fixed Service and Implementation
    of Section 309(j) of the Communications Act -- Competitive Bidding,
    *Report and Order*, 10 FCC Rcd 9589, 9593, ¶ 7 (1995) ("*MDS Auction
    R&O*"*)*. The MDS and ITFS was renamed the Broadband Radio Service
    (BRS) and Educational Broadband Service (EBS), respectively. *See*
    Amendment of Parts 1, 21, 73, 74 and 101 of the Commission's Rules
    to Facilitate the Provision of Fixed and Mobile Broadband Access,
    Educational and Other Advanced Services in the 2150-2162 MHz Band,
    WT Docket No. 03-66, *Report and Order and Further Notice of
    Proposed Rulemaking*, 19 FCC Rcd 14165 (2004).

[^419]: *See* Letter to Margaret Wiener, Chief, Auctions and Industry
    Analysis Division, Wireless Telecommunications Bureau, FCC, from
    Gary Jackson, Assistant Administrator for Size Standards, Small
    Business Administration (dated Mar. 20, 2003) (noting approval of
    \$40 million size standard for MDS auction).

[^420]: Basic Trading Areas (BTAs) were designed by Rand McNally and are
    the geographic areas by which MDS was auctioned and authorized.
    *See* *MDS Auction R&O*, 10 FCC Rcd at 9608, ¶ 34.

[^421]: 47 U.S.C. § 309(j). Hundreds of stations were licensed to
    incumbent MDS licensees prior to implementation of section 309(j) of
    the Communications Act of 1934, 47 U.S.C. § 309(j). For these
    pre-auction licenses, the applicable standard is SBA's small
    business size standard for "other telecommunications" (annual
    receipts of \$13.5 million or less). *See* 13 C.F.R. § 121.201,
    NAICS code 517910.

[^422]: 13 C.F.R. § 121.201, NAICS code 517510.

[^423]: *Id.*

[^424]: U.S. Census Bureau, 1997 Economic Census, Subject Series:
    Information, "Establishment and Firm Size (Including Legal Form of
    Organization)," Table 4 (issued October 2000).

[^425]: *Id.*

[^426]: 47 C.F.R. Part 101 *et seq*. (formerly, part 21 of the
    Commission's Rules) for common carrier fixed microwave services
    (except MDS).

[^427]: Persons eligible under Parts 80 and 90 of the Commission's rules
    can use Private-Operational Fixed Microwave services. *See* 47
    C.F.R. Parts 80 and 90. Stations in this service are called
    operational-fixed to distinguish them from common carrier and public
    fixed stations. Only the licensee may use the operational-fixed
    station, and only for communications related to the licensee's
    commercial, industrial, or safety operations.

[^428]: Auxiliary Microwave Service is governed by Part 74 of Title 47
    of the Commission's Rules. *See* 47 C.F.R. Part 74 *et seq*.
    Available to licensees of broadcast stations and to broadcast and
    cable network entities, broadcast auxiliary microwave stations are
    used for relaying broadcast television signals from the studio to
    the transmitter, or between two points such as a main studio and an
    auxiliary studio. The service also includes mobile TV pickups, which
    relay signals from a remote location back to the studio.

[^429]: 13 C.F.R. § 121.201, NAICS code 517212.

[^430]: U.S. Census Bureau, 1997 Economic Census, Subject Series:
    Information, "Employment Size of Firms Subject to Federal Income
    Tax: 1997," Table 5 (issued Oct. 2000).

[^431]: *Id*. The census data do not provide a more precise estimate of
    the number of firms that have employment of 1,500 or fewer
    employees; the largest category provided is "Firms with 1,000
    employees or more."

[^432]: 13 C.F.R. § 121.201, North American Industry Classification
    System (NAICS) code 517211 (changed from 513321 in October 2002).

[^433]: 13 C.F.R. § 121.201, North American Industry Classification
    System (NAICS) code 517212 (changed from 513322 in October 2002).

[^434]: FCC, Wireline Competition Bureau, Industry Analysis and
    Technology Division, "Trends in Telephone Service", Table 5.3, page
    5-5 (June 2005). This source uses data that are current as of
    October 1, 2004.

[^435]: *Id*.

[^436]: 5 U.S.C. § 603(c).

[^437]: *See* 5 U.S.C*.* § 801(a)(1)(A).

[^438]: *See* 5 U.S.C. § 604(b).