[Code of Federal Regulations]
[Title 47, Volume 5, Parts 80 to end]
[Revised as of October 1, 1998]
From the U.S. Government Printing Office via GPO Access
[CITE: 47CFR90.699]

[Page 470-474]

                       TITLE 47--TELECOMMUNICATION

                         COMMISSION (CONTINUED)

PART 90--PRIVATE LAND MOBILE RADIO SERVICES--Table of Contents

Subpart S--Regulations Governing Licensing and Use of Frequencies in the
            806-824, 851-869, 896-901, and 935-940 MHz Bands

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

    In order to facilitate provision of service throughout an EA, an EA
licensee may relocate incumbent licensees in its EA by providing
``comparable facilities'' on other frequencies in the 800 MHz band. Such
relocation is subject to the following provisions:
    (a) EA licensees may negotiate with incumbent licensees as defined
in Sec. 90.693 operating on frequencies in Spectrum Blocks A, B, and C
for the purpose of agreeing to terms under which the incumbents would
relocate their operations to other frequencies in the 800 MHz band, or
alternatively, would accept a sharing arrangement with the EA licensee
that may result in an otherwise impermissible level of interference to
the incumbent licensee's operations. EA licensees may also negotiate
agreements for relocation of

[[Page 471]]

the incumbents' facilities within Spectrum Blocks A, B or C in which all
interested parties agree to the relocation of the incumbent's facilities
elsewhere within these bands. ``All interested parties'' includes the
incumbent licensee, the EA licensee requesting and paying for the
relocation, and any EA licensee of the spectrum to which the incumbent's
facilities are to be relocated.
    (b) The relocation mechanism consists of two phases that must be
completed before an EA licensee may proceed to request the involuntary
relocation of an incumbent licensee.
    (1) Voluntary negotiations. There is a one year voluntary period
during which an EA licensee and an incumbent may negotiate any mutually
agreeable relocation agreement. The Commission will announce the
commencement of the first phase voluntary period by Public Notice. EA
licensees must notify incumbents operating on frequencies included in
their spectrum block of their intention to relocate such incumbents
within 90 days of the release of the Public Notice that commences the
voluntary negotiation period. Failure on the part of the EA licensee to
notify the incumbent licensee during this 90 period of its intention to
relocate the incumbent will result in the forfeiture of the EA
licensee's right to request involuntary relocation of the incumbent at
any time in the future.
    (2) Mandatory negotiations. If no agreement is reached by the end of
the voluntary period, a one-year mandatory negotiation period will begin
during which both the EA licensee and the incumbent must negotiate in
``good faith.'' Failure on the part of the EA licensee to negotiate in
good faith during this mandatory period will result in the forfeiture of
the EA licensee's right to request involuntary relocation of the
incumbent at any time in the future.
    (c) Involuntary relocation procedures. If no agreement is reached
during either the voluntary or mandatory negotiating periods, the EA
licensee may request involuntary relocation of the incumbent's system.
In such a situation, the EA licensee must:
    (1) Guarantee payment of relocation costs, including all
engineering, equipment, site and FCC fees, as well as any legitimate and
prudent transaction expenses incurred by the incumbent licensee that are
directly attributable to an involuntary relocation, subject to a cap of
two percent of the hard costs involved. Hard costs are defined as the
actual costs associated with providing a replacement system, such as
equipment and engineering expenses. EA licensees are not required to pay
incumbent licensees for internal resources devoted to the relocation
process. EA licensees are not required to pay for transaction costs
incurred by incumbent licensees during the voluntary or mandatory
periods once the involuntary period is initiated, or for fees that
cannot be legitimately tied to the provision of comparable facilities;
    (2) Complete all activities necessary for implementing the
replacement facilities, including engineering and cost analysis of the
relocation procedure and, if radio facilities are used, identifying and
obtaining, on the incumbents' behalf, new frequencies and frequency
coordination; and
    (3) Build the replacement system and test it for comparability with
the existing 800 MHz system.
    (d) Comparable facilities. The replacement system provided to an
incumbent during an involuntary relocation must be at least equivalent
to the existing 800 MHz system with respect to the following four
factors:
    (1) System. System is defined functionally from the end user's point
of view (i.e., a system is comprised of base station facilities that
operate on an integrated basis to provide service to a common end user,
and all mobile units associated with those base stations). A system may
include multiple-licensed facilities that share a common switch or are
otherwise operated as a unitary system, provided that the end user has
the ability to access all such facilities. A system may cover more than
one EA if its existing geographic coverage extends beyond the EA
borders.
    (2) Capacity. To meet the comparable facilities requirement, an EA
licensee must relocate the incumbent to facilities that provide
equivalent channel capacity. We define channel capacity

[[Page 472]]

as the same number of channels with the same bandwidth that is currently
available to the end user. For example, if an incumbent's system
consists of five 50 kHz (two 25 kHz paired frequencies) channels, the
replacement system must also have five 50 kHz channels. If a different
channel configuration is used, it must have the same overall capacity as
the original configuration. Comparable channel capacity requires
equivalent signaling capability, baud rate, and access time. In
addition, the geographic coverage of the channels must be coextensive
with that of the original system.
    (3) Quality of service. Comparable facilities must provide the same
quality of service as the facilities being replaced. Quality of service
is defined to mean that the end user enjoys the same level of
interference protection on the new system as on the old system. In
addition, where voice service is provided, the voice quality on the new
system must be equal to the current system. Finally, reliability of
service is considered to be integral to defining quality of service.
Reliability is the degree to which information is transferred accurately
within the system. Reliability is a function of equipment failures
(e.g., transmitters, feed lines, antennas, receivers, battery back-up
power, etc.) and the availability of the frequency channel due to
propagation characteristics (e.g., frequency, terrain, atmospheric
conditions, radio-frequency noise, etc.) For digital data systems, this
will be measured by the percent of time the bit error rate exceeds the
desired value. For analog or digital voice transmissions, this will be
measured by the percent of time that audio signal quality meets an
established threshold. If analog voice system is replaced with a digital
voice system the resulting frequency response, harmonic distortion,
signal-to-noise ratio, and reliability will be considered.
    (4) Operating costs. Operating costs are those costs that affect the
delivery of services to the end user. If the EA licensee provides
facilities that entail higher operating cost than the incumbent's
previous system, and the cost increase is a direct result of the
relocation, the EA licensee must compensate the incumbent for the
difference. Costs associated with the relocation process can fall into
several categories. First, the incumbent must be compensated for any
increased recurring costs associated with the replacement facilitates
(e.g., additional rental payments, increased utility fees). Second,
increased maintenance costs must be taken into consideration when
determining whether operating costs are comparable. For example,
maintenance costs associated with analog systems may be higher than the
costs of digital equipment because manufacturers are producing mostly
digital equipment and analog replacement parts can be difficult to find.
An EA licensee's obligation to pay increased operating costs will end
five years after relocation has occurred.
    (e) If an EA licensee cannot provide comparable facilities to an
incumbent licensee as defined in this section, the incumbent licensee
may continue to operate its system on a primary basis in accordance with
the provisions of this rule part.
    (f) Cost-sharing plan for 800 MHz SMR EA licensees. EA licensees are
required to relocate the existing 800 MHz SMR licensee in these bands if
interference to the existing incumbent operations would occur. All EA
licensees who benefit from the spectrum clearing by other EA licensees
must contribute, on a pro rata basis to such relocation costs. EA
licensees may satisfy this requirement by entering into private cost-
sharing agreements or agreeing to terms other than those specified in
this section. However, EA licensees are required to reimburse other EA
licensees that incur relocation costs and are not parties to the
alternative agreement as defined in this section.
    (1) Pro rata formula. EA licensees who benefit from the relocation
of the incumbent must share the relocation costs on a pro rata basis.
For purposes of determining whether an EA licensee benefits from the
relocation of an incumbent, benefitted will be defined as any EA
licensee that:
    (i) Notifies incumbents operating on frequencies included in their
spectrum block of their intention to relocate such incumbents within 90
days of the

[[Page 473]]

release of the Public Notice that commences the voluntary negotiation
period; or
    (ii) Fails to notify incumbents operating on frequencies included in
their spectrum block of their intention to relocate such incumbents
within 90 days of the release of the Public Notice that commences the
voluntary negotiation period, but subsequently decides to use the
frequencies included in their spectrum block. EA licensees who do not
participate in the relocation process will be prohibited from invoking
mandatory negotiations or any of the provisions of the Commission's
mandatory relocation guidelines. EA licensees who do not provide notice
to the incumbent, but subsequently decide to use the frequencies in
their EA will be required to reimburse, outside of the Commission's
mandatory relocation guidelines, those EA licensees who have established
a reimbursement right pursuant to paragraph (f)(3) of this section.
    (2) Triggering a reimbursement obligation. An EA licensees
reimbursement obligation is triggered by:
    (i) Notification (i.e., files a copy of the relocation notice and
proof of the incumbent's receipt of the notice to the Commission within
ten days of receipt), to the incumbent within 90 days of the release of
the Public Notice commencing the voluntary negotiation period of its
intention to relocate the incumbent; or
    (ii) An EA licensee who does not provide notification within 90 days
of the release of the Public Notice commencing the voluntary negotiation
period, but subsequently decides to use the channels that were relocated
by other EA licensees.
    (3) Triggering a reimbursement right. In order for the EA licensee
to trigger a reimbursement right, the EA licensee must notify (i.e.,
files a copy of the relocation notice and proof of the incumbent's
receipt of the notice to the Commission within ten days of receipt), the
incumbent of its intention to relocate the incumbent within 90 days of
the release of the Public Notice commencing the voluntary negotiation
period, and subsequently negotiate and sign a relocation agreement with
the incumbent. An EA licensee who relocates a channel outside of its
licensed EA (i.e., one that is in another frequency block or outside of
its market area), is entitled to pro rata reimbursement from non-
notifying EA licensees who subsequently exercise their right to the
channels based on the following formula:
[GRAPHIC] [TIFF OMITTED] TR31JY97.002

Ci  equals the amount of reimbursement
Tc  equals the actual cost of relocating the incumbent
TCh  equals the total number of channels that are being relocated
Chj  equals the number of channels that each respective EA licensee will
benefit from

    (4) Payment issues. EA licensees who benefit from the relocation of
the incumbent will be required to submit their pro rata share of the
relocation expense to EA licensees who have triggered a reimbursement
right and have incurred relocation costs as follows:
    (i) For an EA licensee who, within 90 days of the release of the
Public Notice announcing the commencement of the voluntary negotiation
period, provides notice of its intention to relocate the incumbent, but
does not participate or incur relocation costs in the relocation
process, will be required to reimburse those EA licensees who have
triggered a reimbursement right and have incurred relocation costs
during the relocation process, its pro rata share when the channels of
the incumbent have been cleared (i.e., the incumbent has been fully
relocated and the channels are free and clear).
    (ii) For an EA licensee who does not, within 90 days of the release
of the Public Notice announcing the commencement of the voluntary
negotiation period, provide notice to the incumbent of its intention to
relocate and does not incur relocation costs during the relocation
process, but subsequently decides to use the channels in its EA, will be
required to submit its pro rata share payment to those EA licensees who
have triggered a reimbursement right and have incurred relocation costs
during the relocation process prior to commencing testing of its system.

[[Page 474]]

    (5) Sunset of reimbursement rights. EA licensees who do not trigger
a reimbursement obligation as set forth in paragraph (f)(2) of this
section, shall not be required to reimburse EA licensees who have
triggered a reimbursement right as set forth in paragraph (f)(3) of this
section ten (10) years after the voluntary negotiation period begins for
EA licensees (i.e., ten (10) years after the Commission releases the
Public Notice commencing the voluntary negotiation period).
    (6) Resolution of disputes that arise during relocation. Disputes
arising out of the costs of relocation, such as disputes over the amount
of reimbursement required, will be encouraged to use expedited ADR
procedures. ADR procedures provide several alternative methods such as
binding arbitration, mediation, or other ADR techniques.
    (7) Administration of the cost-sharing plan. We will allow for an
industry supported, not-for-profit clearinghouse to be established for
purposes of administering the cost-sharing plan adopted for the 800 MHz
SMR relocation procedures.

[62 FR 41217, July 31, 1997]