Title 47—Telecommunication--Volume 1
PART 301—RELOCATION OF AND SPECTRUM SHARING BY FEDERAL GOVERNMENT STATIONS
§ 301.1   Purpose.
The purpose of this part is to set forth procedures for the Technical Panel and Dispute Resolution Board as required pursuant to the National Telecommunications and Information Administration Organization Act (hereinafter “NTIA Organization Act”), as amended (47 U.S.C. 923(g)-(l) and 928).
§ 301.10   Cross-reference.
The Manual of Regulations and Procedures for Federal Radio Frequency Management (hereinafter referred to as the “NTIA Manual”) issued by the Assistant Secretary of Commerce for Communications and Information, is incorporated by reference in § 300.1 of this chapter and available online at http://www.ntia.doc.gov/osmhome/redbook/redbook.html. Annex O of the NTIA Manual, as revised, contains information, policies and procedures applicable to Federal agencies that implement the statutory provisions referenced in § 301.1 of this subpart with regard to such agencies that operate authorized U.S. Government stations in Eligible Frequencies and that incur relocation costs or sharing costs because of planning for an auction or the reallocation of such frequencies from Federal use to exclusive non-Federal use or to shared use. The NTIA Manual applies only to Federal agencies and does not impact the rights or obligations of the public. Accordingly, this cross reference is for information purposes only.
§ 301.20   Definitions.
Assistant Secretary means the Assistant Secretary of Commerce for Communications and Information.
Auction means the competitive bidding process through which licenses are assigned by the Commission under section 309(j) of the Communications Act of 1934 (47 U.S.C. 309(j)).
Commission means the Federal Communications Commission.
Dispute Resolution Board means any board established pursuant to section 113(i) of the NTIA Organization Act (47 U.S.C. 923(i)) and subpart C of this part.
Eligible Federal Entity means any Federal Entity that:
(1) Operates a U.S. Government station; and
(2) That incurs relocation costs or sharing costs because of planning for an auction of eligible spectrum frequencies or the reallocation of eligible spectrum frequencies from Federal use to exclusive non-Federal use or to shared use.
Eligible frequencies means any band of frequencies reallocated from Federal use to non-Federal use or to shared use after January 1, 2003, that is assigned by auction.
Federal Entity means any department, agency, or other instrumentality of the Federal Government that utilizes a Government station license obtained under section 305 of the 1934 Act (47 U.S.C. 305). [47 U.S.C. 923(l)]
Non-Federal user means a Commission licensee authorized to use Eligible Frequencies or a winning bidder in a Commission auction for Eligible Frequencies that has fulfilled the Commission's requirements for filing a long-form license application and remitting its final bid payment.
NTIA means the National Telecommunications and Information Administration.
NTIA Manual means the Manual of Regulations and Procedures for Federal Radio Frequency Management issued by the Assistant Secretary of Commerce for Communications and Information and incorporated by reference in § 300.1 of this chapter (47 CFR 300.1).
OMB means the Office of Management and Budget.
Spectrum Pipeline Plan means a plan submitted by a Federal Entity pursuant to section 118(g)(2)(E)(i) of the NTIA Organization Act (47 U.S.C. 928(g)(2)(E)(i)).
Technical Panel means the panel established by section 113(h)(3)(A) of the NTIA Organization Act (47 U.S.C. 923(h)(3)(A)) and governed by subpart B of this part.
Transition Plan means the plan submitted by a Federal Entity pursuant to section 113(h)(1) of the NTIA Organization Act (47 U.S.C. 923(h)(1).
§ 301.30   Address for submissions to the Technical Panel and Dispute Resolution Board.
Submissions to the Technical Panel and the Dispute Resolution Board under this section shall be made to the Office of the Assistant Secretary, National Telecommunications and Information Administration, Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230.
§ 301.100   Membership.
(a) Technical Panel membership. The Technical Panel established by section 113(h)(3)(A) of the NTIA Organization Act (47 U.S.C. 923(h)(3)(A)) shall be composed of three (3) members, to be appointed as follows:
(1) One member to be appointed by the Director of OMB;
(2) One member to be appointed by the Assistant Secretary, with the approval of the Secretary of Commerce; and
(3) One member to be appointed by the Chairman of the Commission.
(b) Qualifications. (1) Each member of the Technical Panel shall be a radio engineer or a technical expert.
(2) The Assistant Secretary, in consultation with the Director of OMB and the Chairman of the Commission, may impose or suggest additional qualifications for one or more members of the Technical Panel as are necessary pursuant to section 113(g)(6) of the NTIA Organization Act (47 U.S.C. 923(g)(6)), including, but not limited to, the following:
(i) The member must have the appropriate and current security clearances to enable access to any classified or other sensitive information that may be associated with or relevant to agency Transition Plans;
(ii) The member should be a Federal employee as defined in 5 U.S.C. 2105(a) or a Special Government Employee as defined in 18 U.S.C. 202(a); and
(iii) The member should have the necessary expertise to perform his or her duties.
(c) Term. The term of a member of the Technical Panel shall be eighteen (18) months, and no individual may serve more than one (1) consecutive term.
(d) Vacancies. (1) Any member of the Technical Panel appointed to fill a vacancy occurring before the expiration of the term for which the member's predecessor was appointed shall be appointed only for the remainder of that term.
(2) A member of the Technical Panel may serve after the expiration of that member's term until a successor has taken office.
(3) A vacancy shall be filled in the manner in which the original appointment was made pursuant to paragraph (a) of this section.
(e) Compensation. (1) No member of the Technical Panel shall receive compensation for service on the Technical Panel.
(2) If any member of the Technical Panel is an employee of the agency of the official that appointed such member to the Technical Panel pursuant to paragraph (a) of this section, compensation in the member's capacity as a Federal employee shall not be considered compensation under paragraph (e)(1) of this section.
§ 301.110   Organization and operations.
(a) Chair. (1) The member of the Technical Panel appointed by the Assistant Secretary pursuant to § 301.100(a) of this subpart shall be the Chair of the Technical Panel.
(2) The Chair of the Technical Panel may designate a Vice-Chair who may act as Chair in the absence of the Chair.
(b) Procedures of and actions by the Technical Panel. (1) The Technical Panel may meet either in person or by some mutually agreeable electronic means to take action on the reports required by § 301.120 of this subpart or in providing technical assistance to a Dispute Resolution Board pursuant to § 301.130 of this subpart.
(2) Meetings of the Technical Panel may be convened as necessary for the efficient and timely dispatch of business by either NTIA or the Chair of the Technical Panel to consider reports and any action thereon and to provide technical assistance to a Dispute Resolution Board pursuant to § 301.130 of this subpart.
(3) The Technical Panel shall endeavour to reach its decisions unanimously. Absent unanimous consent of all three members of the Technical Panel, a concurring vote of a majority of the total panel membership constitutes an action of the Technical Panel.
(4) A majority of the Technical Panel members constitutes a quorum for any purpose.
(5) The Chair of the Technical Panel, in consultation with the other members, may adopt additional policies and procedures to facilitate the efficient and timely dispatch of panel business.
(6) The Technical Panel may consult Federal entity subject matter experts as necessary regarding Federal mission risks and other relevant issues while assessing the reasonableness of costs and timelines in the Federal entity's Transition Plans so long as such consultations are disclosed in the Technical Panel's report.
(c) Administrative support. NTIA shall provide the Technical Panel with the administrative support services necessary to carry out its duties under this part.
§ 301.115   Spectrum Pipeline Plans.
(a) Submission of Spectrum Pipeline Plan. A Federal Entity that requests payment from OMB as provided in section 118(g) of the NTIA Organization Act (47 U.S.C. 928(g)) must submit a plan to the Technical Panel for approval.
(b) Contents of Spectrum Pipeline Plan. A Spectrum Pipeline Plan submitted in accordance with this section must describe activities for research and development, engineering studies, economic analyses, activities with respect to systems, or other planning activities intended to improve the efficiency and effectiveness of the spectrum use of Federal Entities in order to make available frequencies for reallocation for non-Federal use or shared Federal and non-Federal use, or a combination thereof, for auction in accordance with such reallocation. Activities with respect to systems that improve the efficiency or effectiveness of the spectrum use of Federal Entities shall include:
(1) Systems that have increased functionality or that increase the ability of a Federal Entity to accommodate spectrum sharing with non-Federal entities;
(2) Systems that consolidate functions or services that have been provided using separate systems; or
(3) Non-spectrum technology or systems.
(c) Review by Technical Panel —(1) Deadline for approval. Not later than 120 days after a Spectrum Pipeline Plan has been submitted to the Technical Panel in accordance with this section, the Technical Panel shall approve or disapprove such plan.
(2) Criteria for Review. As part of its review, the Technical Panel shall consider whether:
(i) The activities that the Federal Entity will conduct with the payment will:
(A) Increase the probability of relocation from or sharing of Federal spectrum;
(B) Facilitate an auction intended to occur not later than 8 years after the payment; and
(C) Increase the net expected auction proceeds in an amount not less than the time value of the amount of the payment.
(ii) The transfer will leave sufficient amounts in the Spectrum Relocation Fund for the other purposes of such fund.
§ 301.120   Reports on agency Transition Plans.
(a) Deadline for initial report. Not later than thirty (30) days after the receipt of a Federal Entity's Transition Plan submitted in accordance with applicable procedures set forth in Annex O of the NTIA Manual, the Technical Panel shall submit to NTIA and to such Federal Entity the Technical Panel's report on the sufficiency of the Transition Plan.
(b) Scope and content of initial report. The Technical Panel's report shall include:
(1) A finding as to whether the Federal Entity's Transition Plan includes the information required by the applicable provisions set forth in Annex O of the NTIA Manual;
(2) An assessment of the reasonableness of the proposed timelines contained in the Federal Entity's Transition Plan;
(3) An assessment of the reasonableness of the estimated relocation or sharing costs itemized in the Federal Entity's Transition Plan, including the costs identified by such plan for any proposed expansion of the capabilities of the Federal Entity's system; and
(4) A conclusion, based on the finding and assessments pursuant to paragraphs (b)(1) through (3) of this section, as to the sufficiency of the Transition Plan.
(c) Insufficient Transition Plan. In the event the Technical Panel's initial report concludes that the Federal Entity's Transition Plan is insufficient pursuant to paragraph (b) of this section, the report shall also include a description of the specific information or modifications that are necessary for the Federal entity to include in a revised Transition Plan.
(d) Revised plan. If the Technical Panel finds the plan insufficient, the applying Federal Entity has up to 90 days to submit to NTIA and the Technical Panel a revised plan.
(e) Report on revised agency Transition Plans. (1) Deadline for Supplemental Report. Not later than thirty (30) days after the receipt of a Federal Entity's revised Transition Plan submitted after an initial or revised plan was found by the Technical Panel to be insufficient pursuant to paragraph (c) of this section, the Technical Panel shall submit to NTIA and to such Federal Entity the Technical Panel's supplemental report on the sufficiency of the revised Transition Plan.
(2) Scope and content of supplemental report. The Technical Panel's supplemental report on the revised Transition Plan shall include:
(i) A finding as to whether the Federal Entity's revised Transition Plan includes the necessary information or modifications identified in the Technical Panel's initial report pursuant to paragraph (b)(1) of this section;
(ii) A reassessment, if required, of the reasonableness of the proposed timelines contained in the Federal Entity's revised Transition Plan;
(iii) A reassessment, if required, of the reasonableness of the estimated relocation or sharing costs itemized in the Federal Entity's revised Transition Plan; and
(iv) A conclusion, based on the finding and reassessments pursuant to paragraphs (e)(2)(i) through (iii) of this section, as to the sufficiency of the revised Transition Plan.
§ 301.130   Technical assistance to Dispute Resolution Boards.
Upon request of a Dispute Resolution Board convened pursuant to subpart C of this part, the Technical Panel shall provide the board with such technical assistance as requested.
§ 301.200   Requests to resolve disputes.
(a) Non-Federal User requests —(1) In general. A Non-Federal User may submit a written request to NTIA in accordance with this section to establish a Dispute Resolution Board (hereinafter “board”) to resolve an actual, unresolved dispute that has arisen between the Non-Federal User and a Federal Entity regarding the execution, timing, or cost of the Transition Plan submitted by the Federal Entity pursuant to section 113(h)(1) of the NTIA Organization Act (47 U.S.C. 923(h)(1)).
(2) Negotiation, mediation and arbitration. Any dispute arising out of the execution, timing, or cost of the Transition Plan submitted by a Federal Entity must be raised, in the first instance, with the officer or employee of the Federal Entity identified in the Transition Plan as being responsible for the relocation or sharing efforts of the entity and who is authorized to meet and negotiate with Non-Federal Users regarding the transition. To the extent that the parties cannot resolve such dispute on an informal basis or through good faith negotiation, they are strongly encouraged to use expedited alternative dispute resolution procedures, such as mediation or non-binding arbitration, before submitting a written request in accordance with this section to establish a board.
(3) Eligibility to request the establishment of a board. To submit a request to establish a board, a Non-Federal User must satisfy the definition of such term in § 301.20 of this part and the dispute must pertain to the execution, timing, or cost of the Transition Plan associated with the license or licenses subject to the winning bid or bids.
(4) Contents of request. In order to be considered by a board under this subpart, a request must include:
(i) Specific allegations of fact regarding the Federal Entity's deviation from the Transition Plan sufficient to support the requested resolution of the dispute. Such allegations of fact, except for those of which official notice may be taken by the board, shall be supported by affidavits of a person or persons having personal knowledge thereof;
(ii) A summary of the parties' prior efforts and attempts to resolve the dispute, including negotiation, mediation, or non-binding arbitration efforts pursuant to paragraph (a)(2) of this section;
(iii) A detailed description of each of the claims upon which a resolution is sought by and available to the Non-Federal User;
(iv) A detailed description of the requested resolution of the dispute;
(v) The requestor's contact information and a certificate of service showing to whom and when an identical copy of the request was provided to the Federal Entity; and
(vi) A meeting proposal setting forth the proposed date, time, and place (including suggested alternatives) for a meeting with the Federal Entity and the board, the date for which shall be no later than fifteen (15) days from the date the request is sent to NTIA.
(vii) A self-certification that the Non-Federal User is a licensee authorized to use Eligible Frequencies or winning bidder in an FCC auction for the Eligible Frequencies.
(5) Federal Entity response. A Federal Entity has the right to submit a response to the board prior to the date of the scheduled meeting. If so directed by the Chair of the board, the Federal Entity shall submit a written response to the Non-Federal User's request.
(b) Federal Entity requests —(1) In general. An Eligible Federal Entity may submit a written request in accordance with this section to establish a Dispute Resolution Board to resolve an actual dispute that has arisen between the Federal Entity and a Non-Federal User regarding the execution, timing, or cost of the Transition Plan submitted by the Federal Entity pursuant to section 113(h)(1) of the NTIA Organization Act (47 U.S.C. 923(h)(1)).
(2) Eligibility to request the establishment of a board. To submit a request to establish a board, a Federal Entity, as such term is defined in § 301.20 of this part, must have submitted a Transition Plan pursuant to section 113(h)(1) of the NTIA Organization Act (47 U.S.C. 923(h)(1)) and the dispute must pertain to the execution, timing, or cost of such plan in connection with that Non-Federal User's license or licenses to use the Eligible Frequencies.
(3) Contents of request. In order to be considered by a board under this subpart, a request must include:
(i) Specific allegations of fact regarding the factors hindering or affecting the plan's execution, timing, or cost sufficient to support the requested resolution of the dispute. Such allegations of fact, except for those for which official notice may be taken by the board, shall be supported by affidavits of a person or persons having personal knowledge thereof;
(ii) A summary of the parties' prior efforts and attempts to resolve the dispute;
(iii) A detailed description of each of the claims upon which a resolution is sought by and available to the Federal Entity;
(iv) A detailed description of the requested resolution of the dispute;
(v) The requestor's contact information and a certificate of service showing to whom and when an identical copy of the request was provided to the Non-Federal User; and
(vi) A meeting proposal setting forth the proposed date, time, and place (including suggested alternatives) for a meeting with the Non-Federal User and the board, the date for which shall be no later than fifteen (15) days from the date the request is sent to NTIA.
(4) Non-Federal User response. A Non-Federal User has the right to submit a response to the board prior to the date of the scheduled meeting. If so directed by the Chair of the board, the Non-Federal User shall submit a written response to the Federal Entity's request.
§ 301.210   Establishment and operation of a Dispute Resolution Board.
(a) In general. If NTIA receives a written request under § 301.200, it shall establish a Dispute Resolution Board in accordance with this section.
(b) Board membership. A board established under this section shall be composed of three (3) members, to be appointed as follows:
(1) A representative of OMB, to be appointed by the Director of OMB;
(2) A representative of NTIA, to be appointed by the Assistant Secretary; and
(3) A representative of the Commission, to be appointed by the Chairman of the Commission.
(c) Qualifications. The Assistant Secretary, in consultation with the Director of OMB and the Chairman of the Commission, may impose qualifications for one or more members of a board established under this section as are necessary pursuant to section 113(g)(6) of the NTIA Organization Act (47 U.S.C. 923(g)(6)), including, but not limited to, the following:
(1) The member has the appropriate and current security clearances to enable access to any classified or other sensitive information that may be associated with or relevant to the Transition Plan subject to dispute;
(2) The member must be an employee of the appointing agency;
(3) The member must be from a predetermined slate of not less than three (3) qualified candidates from NTIA, OMB, and the Commission and able to serve on a board immediately upon the notification of the establishment of a board under this section until it rules on the dispute that it was established to resolve; and
(4) The member may not simultaneously be a member of the Technical Panel governed by subpart B of this part or a former member of the Technical Panel that reviewed the Transition Plan subject to dispute.
(d) Chair. (1) The representative of OMB shall be the Chair of any board established under paragraph (a) of this section.
(2) The Chair may designate a Vice-Chair who may act as Chair in the absence of the Chair.
(e) Term. The term of a member of a board shall be until such board is terminated pursuant to paragraph (j) of this section or until a successor or replacement member is appointed under paragraph (b) of this section.
(f) Vacancies. Any vacancy on a board shall be filled in the manner in which the original appointment was made under paragraph (b) of this section.
(g) Compensation. (1) No member of a board shall receive any compensation for service on such board.
(2) Compensation in the member's capacity as an employee of the agency of the official that appointed such member to a board pursuant to paragraph (b) of this section shall not be considered compensation under paragraph (g)(1) of this section.
(h) Procedures of and actions by a board. (1) Except with respect to meetings with the parties pursuant to § 301.220(a), a board shall meet at the call of the Chair either in person or by some mutually agreeable electronic means to deliberate or rule on the dispute that it was established to resolve under paragraph (a) of this section or to receive technical assistance from the Technical Panel pursuant to § 301.130 of this part.
(2) A board shall endeavour to rule on the dispute that it was established to resolve under paragraph (a) of this section unanimously. Absent unanimous consent of all three members of a board, a concurring vote of a majority of the total board membership constitutes an action of such board.
(3) A majority of board members constitutes a quorum for any purpose.
(4) The Chair of a board, in consultation with the other members, may adopt additional policies and procedures to facilitate the efficient and timely resolution of the dispute that it was established to resolve under paragraph (a) of this section.
(i) Administrative support. NTIA shall provide any board established pursuant to paragraph (a) of this section with the administrative support services necessary to carry out its duties under this subpart.
(j) Termination of a board. (1) A board established pursuant to paragraph (a) of this section shall terminate after it rules on the dispute that it was established to resolve and the time for appeal of its decision under section 113(i)(7) of the NTIA Organization Act (47 U.S.C. 923(i)(7)) has expired, unless such an appeal has been taken.
(2) If such an appeal has been taken, the board shall continue to exist until the appeal process has been exhausted and the board has completed any action required by a court hearing the appeal.
§ 301.220   Dispute Resolution.
(a) Meeting with parties. In consideration of the proposal set forth in a request pursuant to either § 301.200(a)(4)(vi) or (b)(3)(vi) of or at another mutually convenient date, time, and place (including via teleconference or other electronics means), the Chair of the board established under this subpart shall call a meeting of the board to be held simultaneously with representatives of the parties to the dispute to discuss the dispute.
(b) Additional written submissions. The parties to the dispute shall provide the board with any additional written materials and documents as it may request. In cases where the dispute or an element thereof relates to the impact on the Federal Entity's national security, law enforcement, or public safety operations or functions, the board may request, and the Federal entity shall provide, additional written submissions concerning such impact.
(c) Assistance from Technical Panel. A board established under this subpart may request technical assistance, as necessary, from the Technical Panel governed by subpart B of this part.
(d) Deadline for decision. The board shall rule on the dispute not later than thirty (30) days from the date the request was received by the NTIA, unless the parties and the board all agree in writing, and subject to the approval of the Assistant Secretary, to extend this period for a specified number of days.
(e) Board decision. The decision of a board established under this subpart shall:
(1) Be in writing;
(2) Be limited to determinations related to the execution, timing, or cost of the Transition Plan submitted by the Federal entity;
(3) Be based only on the record before it, including the request; meeting(s) with the parties all at the same time; any additional written submissions requested by the board and served on the other party, including submissions from the Federal entity concerning the potential impact on its national security, law enforcement, or public safety operations or functions; input from the Technical Panel, and other matters and material for which it may take official notice;
(4) Ensure that the decision does not have a detrimental impact on the Federal entity's operations or services that have national security, law enforcement, or public safety functions; and
(5) Be final upon issuance.
(f) Recommendations. A decision of the board may include recommendations for remedial or other corrective actions to the appropriate Federal agency with the legal authority to take such actions based on the board's findings.