Federal Register / Vol. 61, No. 114 / Wednesday, June 12, 1996 / Rules and Regulations 29679

provide the public with any necessary

policy and practices for the

administration of recreation program

through procedural guidance.

EFFECTIVE DATE: July 12, 1996.

FOR FURTHER INFORMATION CONTACT:

Edna Taylor, (202) 452–5068.

SUPPLEMENTARY INFORMATION: This final

regulation removes 43 CFR Part 8000—

Recreation Programs from BLM’s

regulatory program as part of its effort

to eliminate unnecessary and

inappropriate material in the Code of

Federal Regulations.

BLM published a proposed rule on

the removal of 43 CFR Part 8000—

Recreation Programs in the Federal

Register of April 9, 1996 (61 FR 15753),

requesting comments by May 9, 1996.

During the 30-day comment period,

BLM did not receive any comments.

This rule is not subject to the Office

of Management and Budget review

under Executive Order 12866.

BLM has determined that this final

rule is categorically excluded from

environmental review under section

102(2)(C) of the National Environmental

Policy Act, pursuant to 516

Departmental Manual (DM), Chapter 2,

Appendix I, Item 1.10, and that the final

rule does not meet any of the 10 criteria

for exceptions to categorical exclusion

listed in 516 DM, Chapter 2, Appendix

2. Pursuant to Council on

Environmental Quality regulations (40

CFR 1508.4) and the environmental

policies and procedures of the

Department of the Interior, the term

‘‘categorical exclusions’’ means a

‘‘category of actions that do not

individually or cumulatively have a

significant effect on the human

environment and that have been found

to have no such effect in procedures

adopted by the Federal agency and for

which neither an environmental

assessment nor an environmental

impact statement is required.’’

The final rule will not have a

significant economic impact on a

substantial number of small entities

under the Regulatory Flexibility Act (5

U.S.C. 601 et seq.). The rule does not

contain information collection

requirements that need approval by the

Office of Management and Budget under

44 U.S.C. 3501 et seq.

The principal author of this final rule

is Edna Taylor, Regulatory Management

Team, BLM.

Accordingly, under the authority of 5

U.S.C. 301, 43 CFR Part 8000—

Recreation Programs is removed.

Dated: June 5, 1996.

Sylvia V. Baca,

Acting Assistant Secretary of the Interior.

[FR Doc. 96–14846 Filed 6–11–96; 8:45 am]

BILLING CODE 4310–84–P

43 CFR Part 8300

[WO–340–1220–00–24 1A]

RIN 1004–AC50

Recreation Management

AGENCY: Bureau of Land Management,

Interior.

ACTION: Final Rule; removal.

SUMMARY: This final rule removes 43

CFR Part 8300—Procedures regarding

recreation management on public lands,

in its entirety. 43 CFR Part 8300—

Procedures contains no substantive

material that is not repeated in

subsequent sections of 43 CFR. The

Bureau of Land Management (BLM) will

provide the public with any necessary

policy and practices for the

administration of recreation program

through procedural guidance.

EFFECTIVE DATE: July 12, 1996.

FOR FURTHER INFORMATION CONTACT:

Edna Taylor, (202) 452–5068.

SUPPLEMENTARY INFORMATION: This final

regulation removes 43 CFR Part 8300—

Procedures from BLM’s regulatory

program as part of its effort to eliminate

unnecessary and inappropriate material

in the Code of Federal Regulations.

BLM published a proposed rule on

the removal of 43 CFR Part 8300—

Procedures in the Federal Register of

April 9, 1996 (61 FR 15753), requesting

comments by May 9, 1996. During the

30-day comment period, BLM did not

receive any comments.

This rule is not subject to the Office

of Management and Budget review

under Executive Order 12866.

BLM has determined that this final

rule is categorically excluded from

environmental review under section

102(2)(C) of the National Environmental

Policy Act, pursuant to 516

Departmental Manual (DM), Chapter 2,

Appendix I, Item 1.10, and that the final

rule does not meet any of the 10 criteria

for exceptions to categorical exclusion

listed in 516 DM, Chapter 2, Appendix

2. Pursuant to Council on

Environmental Quality regulations (40

CFR 1508.4) and the environmental

policies and procedures of the

Department of the Interior, the term

‘‘categorical exclusions’’ means a

‘‘category of actions that do not

individually or cumulatively have a

significant effect on the human

environment and that have been found

to have no such effect in procedures

adopted by the Federal agency and for

which neither an environmental

assessment nor an environmental

impact statement is required.’’

The final rule will not have a

significant economic impact on a

substantial number of small entities

under the Regulatory Flexibility Act (5

U.S.C. 601 et seq.). The rule does not

contain information collection

requirements that need approval by the

Office of Management and Budget under

44 U.S.C. 3501 et seq.

The principal author of this final rule

is Edna Taylor, Regulatory Management

Team, BLM.

Accordingly, under the authority of 5

U.S.C. 301, 43 CFR Part 8300—

Procedures is removed.

Dated: June 5, 1996.

Sylvia V. Baca,

Acting Assistant Secretary of the Interior.

[FR Doc. 96–14845 Filed 6–11–96; 8:45 am]

BILLING CODE 4310–84–P

FEDERAL COMMUNICATIONS

COMMISSION

47 CFR Parts 15, 22, 24, and 101

[WT Docket No. 95–157; RM–8643; FCC 96–

196]

Microwave Facilities Operating in

1850–1990 MHz (2GHz) Band;

Relocation Costs Sharing

AGENCY: Federal Communications

Commission.

ACTION: Final rule.

SUMMARY: By this First Report and

Order, the Commission changes and

clarifies certain aspects of the

microwave relocation rules adopted in

our Emerging Technologies proceeding,

ET Docket No. 92–9. The Commission

also adopts a plan for sharing the costs

of relocating microwave facilities

currently operating in the 1850 to 1990

MHz (‘‘2 GHz’’) band, which has been

allocated for use by broadband Personal

Communications Services (‘‘PCS’’). The

Commission’s plan establishes a

mechanism whereby PCS licensees that

incur costs to relocate microwave links

receive reimbursement for a portion of

those costs from other PCS licensees

that also benefit from the resulting

spectrum clearance. The Commission

conditions the cost-sharing plan,

however, on selection of one or more

entities or organizations to administer

the plan.

EFFECTIVE DATES: Sections 15.307 and

22.602 are effective August 12, 1996.
29680 Federal Register / Vol. 61, No. 114 / Wednesday, June 12, 1996 / Rules and Regulations

Sections 24.5, 24.237, 24.238, 24.239,

24.241, 24.243, 24.245, 24.247, 24.249,

24.251 and 24.253 will become effective

August 12, 1996, and will become

applicable on the date that the Wireless

Telecommunications Bureau selects a

clearinghouse to administer the costsharing plan. The Commission will

publish a document announcing the

selection of the clearinghouse at a later

date. Sections 101.3, 101.69, 101.71,

101.73, 101.75, 101.77, 101.79, 101.81,

and 101.147 will become effective

August 1, 1996.

FOR FURTHER INFORMATION CONTACT:

Michael Hamra (202) 418–0620,

Wireless Telecommunications Bureau.

SUPPLEMENTARY INFORMATION: This is a

synopsis of the First Report and Order,

adopted April 24, 1996 and released

April 30, 1996. For information

regarding the proposed plan for sharing

the costs of microwave relocation, see

Amendment to the Commission’s Rules

Regarding a Plan for Sharing the Costs

of Microwave Relocation, Notice of

Proposed Rule Making, WT Docket No.

95–157, 60 FR 55529 (November 1,

1995) (‘‘Cost-Sharing Notice’’). Part 101

will become effective August 1, 1996.

See 61 FR 26670 (May 28, 1996). The

complete text of this First Report and

Order is available for inspection and

copying during normal business hours

in the FCC Reference Center, Room 230,

1919 M Street, N.W., Washington, D.C.,

and also may be purchased from the

Commission’s copy contractor,

International Transcription Service, at

(202) 857–3800, 2100 M Street, N.W.,

Suite 140, Washington, D.C. 20037.

I. Background

1. In the First Report and Order and

Third Notice of Proposed Rule Making

in ET Docket No. 92–9, 57 FR 49020

(October 29, 1992) the Commission

reallocated the 1850–1990, 2110–2150,

and 2160–2200 MHz bands from private

and common carrier fixed microwave

services to emerging technology

services. The Commission also

established procedures for 2 GHz

microwave incumbents to be relocated

to available frequencies in higher bands

or to other media, by encouraging

incumbents to negotiate voluntary

relocation agreements with emerging

technology licensees or manufacturers

of unlicensed devices when frequencies

used by the incumbent are needed to

implement the emerging technology.

The First Report and Order stated that,

should negotiations fail, the emerging

technology licensee could request

involuntary relocation of the incumbent,

provided that the emerging technology

service provider pays the cost of

relocating the incumbent to a

comparable facility. In the

Commission’s Third Report and Order

in ET Docket No. 92–9, 58 FR 46547

(September 2, 1993) as modified on

reconsideration by the Memorandum

Opinion and Order, 59 FR 19642 (April

25, 1994) the Commission established

additional details of the transition plan

to enable emerging technology providers

to relocate incumbent facilities. The

relocation process consists of two

negotiation periods that must expire

before an emerging technology licensee

may request involuntary relocation. The

first is a fixed two-year period for

voluntary negotiations—three years for

public safety incumbents, e.g., police,

fire, and emergency medical—

commencing with the Commission’s

acceptance of applications for emerging

technology services, during which the

emerging technology providers and

microwave licensees may negotiate any

mutually acceptable relocation

agreement. Negotiations are strictly

voluntary. If no agreement is reached,

the emerging technology licensee may

initiate a one-year mandatory

negotiation period—or two-year

mandatory period if the incumbent is a

public safety licensee—during which

the parties are required to negotiate in

good faith.

2. Should the parties fail to reach an

agreement during the mandatory

negotiation period, the emerging

technology provider may request

involuntary relocation of the existing

facility. Involuntary relocation requires

that the emerging technology provider

(1) guarantee payment of all costs of

relocating the incumbent to a

comparable facility; (2) complete all

activities necessary for placing the new

facilities into operation, including

engineering and frequency coordination;

and (3) build and test the new

microwave (or alternative) system. Once

comparable facilities are made available

to the incumbent microwave operator,

the Commission will amend the 2 GHz

license of the incumbent to secondary

status. After relocation, the microwave

incumbent is entitled to a one-year trial

period to determine whether the

facilities are indeed comparable, and if

they are not, the emerging technology

licensee must remedy the defects or pay

to relocate the incumbent back to its

former or an equivalent 2 GHz

frequency.

3. Under these procedures, it is

possible for a relocation agreement

between a PCS licensee and a

microwave incumbent to have

spectrum-clearing benefits for other PCS

licensees as well. First, some microwave

spectrum blocks overlap with one or

more PCS blocks, because the spectrum

in the 1850–1990 MHz band was

assigned differently in the two services.

Second, incumbents’ receivers may be

susceptible to adjacent or co-channel

interference from PCS licensees in more

than one PCS spectrum block. For

example, a microwave link located

partially in Block A, partially in Block

D, and adjacent to Block B, may cause

interference to or receive interference

from PCS licensees that are licensed in

each of those blocks. Third, because

most 2 GHz microwave licensees

operate multi-link systems, PCS

licensees may be asked to relocate links

that do not directly encumber their own

spectrum or service area in order to

obtain the microwave incumbent’s

voluntary consent to relocate. Finally,

the Unlicensed PCS Ad Hoc Committee

for 2 GHz Microwave Transition and

Management Inc. (‘‘UTAM’’), the

frequency coordinator for the PCS

spectrum designated for unlicensed

devices, expects that some licensed PCS

providers will have to relocate links in

the unlicensed band that are paired with

links in licensed PCS spectrum. The

Commission has designated UTAM to

coordinate relocation in the 1910–1930

MHz band, which has been reallocated

for unlicensed PCS devices. Once the

1910–1930 MHz band is clear, or there

is little risk of interference to the

remaining incumbents, and UTAM has

recovered its relocation costs, UTAM’s

role will end and it will be dissolved.

4. Because the Commission is

licensing PCS providers at different

times and multiple PCS licensees may

benefit from the relocation of a

microwave system or even a single link,

the first PCS licensee in the market

potentially bears a disproportionate

share of relocation costs. Subsequent

PCS licensees to enter the market may

therefore obtain a windfall. As a result

of this potential ‘‘free rider’’ problem,

the first PCS licensee in the market

might not relocate a link or might delay

its deployment of PCS if it believes that

another PCS licensee will relocate the

link first, thus paying for some or all of

the relocation costs. In addition, unless

cost-sharing is adopted, PCS licensees

might not engage in relocation that is

cost-effective if viewed from an

industry-wide perspective. For example,

a link that encumbers two PCS blocks

might not be moved if the cost is greater

than the benefit to any single licensee,

even though the joint benefit received

by two or more licensees exceeds the

cost of relocating the link.

5. In 1994, PCIA proposed a costsharing plan to alleviate the free rider

problem, which the Commission found

to be attractive in theory but dismissed
Federal Register / Vol. 61, No. 114 / Wednesday, June 12, 1996 / Rules and Regulations 29681

as underdeveloped. On May 5, 1995,

Pacific Bell (‘‘PacBell’’) filed a Petition

for Rulemaking. In its petition, PacBell

proposed a detailed cost-sharing plan in

which PCS licensees on all blocks,

licensed and unlicensed, would share in

the cost of relocating microwave

stations. On May 16, 1995, the

Commission requested comment on

PacBell’s proposal. Most parties that

commented on PacBell’s Petition for

Rulemaking supported the cost-sharing

concept, although the comments

reflected some differences regarding the

details of the proposal. On October 12,

1995, the Commission adopted a Notice

of Proposed Rule Making, 60 FR 55529

(November 1, 1995) which sought

comment on a modified version of the

plan proposed by PacBell.

6. The Commission released and

adopted, with this First Report and

Order, a Further Notice of Proposed

Rule Making, 61 FR 24470 (May 15,

1996).

II. First Report and Order

7. In the Cost-Sharing Notice, the

Commission proposed a number of

changes and clarifications to the

microwave relocation rules adopted in

the Emerging Technologies docket. The

Commission suggested that additional

guidance with respect to certain aspects

of its rules would facilitate negotiations,

reduce disputes, and expedite

deployment of PCS. As explained

below, the Commission adopts many of

the changes and clarifications the

Commission proposed, along with some

suggestions made by commenters. By

adopting these rule changes and

clarifications, as well as the cost-sharing

plan discussed in Section B, infra, the

Commission intends to expedite the

clearing of the 2 GHz band and the

introduction of PCS to the public, while

protecting the rights of incumbents. The

Commission seeks to promote an

efficient and equitable relocation

process, which minimizes transaction

costs and maximizes benefits for all

parties, including incumbents, PCS

licensees, and the public.

A. Microwave Relocation Rules

1. Voluntary Negotiations

8. The Commission agrees with

commenters who argue that the public

interest would not be served by

changing the rules regarding the

voluntary period for the A and B blocks

at this time. First, the A and B block

licensees who are now negotiating with

incumbents were on notice of the

voluntary period when they bid for their

licenses, and they presumably have

factored the length of the period and the

potential cost of relocation into their

bids. They have offered no persuasive

justification to shorten the period now.

Second, the Commission notes that

many voluntary agreements have

already been reached or are now being

negotiated between A and B block

licensees and incumbents. The

Commission is concerned that altering

the voluntary period could

inadvertently delay the deployment of

PCS, because negotiations are likely to

be interrupted while parties reassess

their bargaining positions. Nevertheless,

the Commission agrees with PCS

licensees that changing the negotiation

period for blocks other than the A and

B blocks may not raise the same

concerns, because negotiations in these

blocks have not commenced.

9. Whether or not the negotiation

periods are changed, the Commission

also agrees with PCS licensees that

additional information about the value

of an incumbent’s system, the estimated

amount of time it would take to relocate

the incumbent, and the anticipated cost

of relocation may help facilitate

negotiations during the voluntary

period, as the Commission suggested in

the Cost-Sharing Notice. Therefore, the

Commission will require that, if the

parties have not reached an agreement

within one year after the

commencement of the voluntary period,

the incumbent must allow the PCS

licensee, if the PCS licensee so chooses,

to gain access to the microwave

facilities to be relocated so that an

independent third party can examine

the incumbent’s 2 GHz system and

prepare an estimate of the cost and the

time needed to relocate the incumbent

to comparable facilities. The PCS

licensee must pay for any such cost

estimate. Because the one-year

anniversary of the commencement of

the voluntary period for A and B block

licensees has already passed, this

requirement shall become effective for

the A and B block on the effective date

of the rules adopted in this proceeding.

The Commission disagrees with

incumbents that a cost estimate paid for

by the PCS licensee changes the nature

of the voluntary period, because

participation in negotiations remains

voluntary.

10. Finally, although the Commission

is not altering the basic structure or

length of the voluntary period for A and

B block PCS licensees, the Commission

emphasizes that its rules provide

incentives for voluntary agreements.

The Commission has stated in the past

that PCS licensees may choose to offer

incumbents premiums to relocate

quickly. ‘‘Premiums’’ could include:

replacing the analog facilities with

digital facilities, paying all of the

incumbent’s transactions costs, or

relocating an entire system as opposed

to just the interfering links. These

incentives are available only to

microwave incumbents who consent to

relocation by negotiation. By contrast,

PCS licensees are not obligated to pay

for such premiums during an

involuntary relocation, which is

discussed in Section IV(A)(3), infra.

2. Mandatory Negotiations

11. As the comments on this issue

demonstrate, the question of whether

parties are negotiating in good faith

typically requires consideration of all

the facts and circumstances underlying

the negotiations, and thus is likely to

depend on the specific facts in each

case. The Commission is concerned that

creating a presumption that a party is

acting in good or bad faith, as proposed

in the Cost-Sharing Notice, may slow

down resolution of disputes by

prompting parties to bring claims of bad

faith to the Commission prematurely

rather than focusing on resolving the

underlying disputes through the

negotiation process. For these reasons,

the Commission declines to adopt its

proposal creating a presumption that a

party who declines an offer of

comparable facilities is acting in bad

faith. Instead, the Commission

concludes that good faith should be

evaluated on a case-by-case basis under

basic principles of contract law.

Nevertheless, the Commission agrees

with those commenters who suggest that

guidance with respect to the factors the

Commission will consider if a dispute

arises over good faith would be helpful.

12. First, the Commission believes

that good faith requires each party to

provide information to the other that is

reasonably necessary to facilitate the

relocation process. For example, upon

request by a PCS licensee, the

Commission expects incumbents to

allow inspection of their facilities by the

PCS licensee and to provide any other

information that the PCS licensee needs

in order to evaluate the cost of

relocating the incumbent to comparable

facilities. Second, when evaluating

claims that a party has not negotiated in

good faith, the Commission will

consider, inter alia, the following

factors: (1) whether the PCS licensee has

made a bona fide offer to relocate the

incumbent to comparable facilities; (2) if

the microwave incumbent has

demanded a premium, the type of

premium requested (e.g., whether the

premium is directly related to

relocation, such as system-wide

relocations and analog-to-digital

conversions, versus other types of
29682 Federal Register / Vol. 61, No. 114 / Wednesday, June 12, 1996 / Rules and Regulations

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; and

(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.

13. To ensure that parties do not bring

frivolous bad faith claims, the

Commission will also require any party

alleging a violation of the Commission’s

good faith requirement to provide an

independent estimate of the relocation

costs of the facilities in question.

Independent estimates must include a

specification for the comparable facility

and a statement of the costs associated

with providing that facility to the

incumbent licensee. These cost

estimates are similar to the cost

estimates that the Commission requires

if a dispute arises over comparable

facilities during the involuntary

relocation period. The Commission

believes that requiring such estimates

will assist them in determining whether

the parties are negotiating in good faith.

Finally, the Commission agrees with

those commenters who argue that

penalties for failure to negotiate in good

faith should be imposed on a case-bycase basis. The Commission

emphasizes, however, that they intend

to use the full realm of enforcement

mechanisms available to them in order

to ensure that licensees bargain in good

faith.

3. Involuntary Relocation

14. If no agreement is reached during

either the voluntary or mandatory

negotiation period, a PCS licensee may

initiate involuntary relocation

procedures. Under involuntary

relocation, the incumbent is required to

relocate, provided that the PCS licensee

meets the conditions under the

Commission’s rules for making the

incumbent whole, such as providing the

incumbent with comparable facilities.

a. Comparable Facilities

15. The Commission concludes that

the factors they have identified—

communications throughput, system

reliability, and operating costs—will be

the three factors used to determine

when a facility is comparable. As the

Commission stated in the Cost-Sharing

Notice, the Commission believes that

providing guidance with respect to the

term comparable facilities will facilitate

negotiations and reduce disputes. The

record in this proceeding also supports

adoption of the factors the Commission

has identified. Each factor is discussed

in more detail below.

16. Communication Throughput. The

Commission defines communications

throughput as the amount of

information transferred within the

system in a given amount of time. For

analog systems the throughput is

measured by the number of voice

channels, and for digital systems it is

measured in bits per second (‘‘bps’’).

Therefore, if analog facilities are being

replaced by analog facilities, the PCS

licensee will be required to provide the

incumbent with an equivalent number

of 4 kHz voice channels. If an existing

digital system is being replaced by

digital facilities, the PCS licensee will

be required to provide the incumbent

with equivalent data loading bps in

order for the system to be considered

comparable. The Commission agrees

with commenters that the more difficult

issue will be determining equivalent

throughput when analog equipment is

being replaced with digital equipment,

which can be like comparing ‘‘apples

with oranges.’’ If disputes arise, the

Commission will determine on a caseby-case basis whether comparable

throughput has been achieved. For

guidance, the Commission plans to refer

to other parts of its rules where analogdigital comparisons have been made,

such as the minimum channel loading

requirements for fixed point-to-point

microwave systems in Section

21.710(d).

17. The Commission also concludes

that, during involuntary relocation, PCS

licensees will only be required to

provide incumbents with enough

throughput to satisfy their needs at the

time of relocation, rather than to match

the overall capacity of the system, as

some microwave incumbents suggest.

For example, the Commission will not

require that a 2 GHz incumbent with 5

MHz of bandwidth be relocated to a 5

MHz bandwidth, 6 GHz location when

its current needs only justify a 1.25 MHz

bandwidth system. If a dispute arises,

the Commission will determine what an

incumbent’s needs are by looking at

actual system use rather than total

capacity at the time of relocation. The

Commission expressly adopted

channelization plans for the 6 GHz band

with bandwidth requirements ranging

from 400 kHz to 30 MHz to increase the

efficiency of use by point-to-point

microwave operations. Although the

Commission recognizes that this policy

may affect an incumbent’s ability to

increase its capacity over time, the

Commission agrees with PCS licensees

that the public interest would not be

served if spectrum is automatically held

in reserve for all incumbents with the

expectation that some may require

additional capacity in the future. The

Commission’s goal is to foster efficient

use of the spectrum, which would be

thwarted if all incumbents are relocated

to systems with capacity that exceeds

their current needs. Also, limiting

spectrum to current needs serves the

public interest, because the Commission

believes that it will promote the

development of spectrum-efficient

technology capable of increasing

capacity without increasing bandwidth.

18. Reliability. The Commission

defines system reliability as the degree

to which information is transferred

accurately within the system. As stated

in the Cost-Sharing Notice, the

reliability of a system is a function of

equipment failures (e.g., transmitters,

feed lines, antennas, receivers, battery

back-up power, etc.), the availability of

the frequency channel due to

propagation characteristic (e.g.,

frequency, terrain, atmospheric

conditions, radio-frequency noise, etc.),

and equipment sensitivity. The

Commission defines comparable

reliability as that equal to the overall

reliability of the incumbent system, and

the Commission will not require the

system designer to build the radio link

portion of the system to a higher

reliability than that of the other

components of the system. For example,

if an incumbent system had a radio link

reliability of 99.9999 percent, but an

overall reliability of only 99.999 percent

because of limited battery back-up

power, the Commission requires that the

new system have a radio link reliability

of 99.999 percent to be considered

comparable. For digital data systems

this would be measured by the percent

of time the bit error rate (‘‘BER’’)

exceeds a desired value, and for analog

or digital voice transmissions this

would be measured by the percent of

time that audio signal quality met an

established threshold. Under this

approach, for a replacement digital

system to be comparable, the data rate

throughput must be equal to or greater

than that of the incumbent system with

an equal or greater reliability. If an

analog voice system is replaced with a

digital voice system the resulting

frequency response, harmonic

distortion, signal-to-noise ratio, and

reliability would be the factors

considered. The Commission declines to

adopt AUE’s request that the

Commission include a ‘‘system age’’

component that takes into account how

the age of a given system can affect

system reliability, because the
Federal Register / Vol. 61, No. 114 / Wednesday, June 12, 1996 / Rules and Regulations 29683

Commission does not have enough

information to determine how age will

affect a given system. Moreover, the

Commission believes that older

equipment of high quality may be as

reliable as newer equipment of low

quality.

19. Operating Costs. The Commission

defines operating costs as the cost to

operate and maintain the microwave

system. These costs fall into several

categories. First, the incumbent must be

compensated for any increased

recurring costs associated with the

replacement facilities (e.g., additional

rental payments, increased utility fees).

Although the Commission originally

proposed that recurring costs should be

limited to a ten-year license term, the

Commission is persuaded by PCS

licensees that a five-year time period—

which is the length of a microwave

license in the 1850–1990 MHz band—is

a more appropriate time frame, because

it strikes an appropriate balance

between the burden placed on PCS

licensees who must relocate many

incumbents, and the burden placed on

incumbents that are being forced to

relocate. Furthermore, the Commission

believes that the five-year time period is

not unfair to incumbents because, by

five years from now, many incumbents

would have been forced to bear some of

these costs themselves—such as

increased rents—if they had not already

been relocated by PCS licensees.

Moreover, the Commission is also

persuaded that a five-year time period

provides incumbents with sufficient

time for budget planning and resource

allocation to meet such expenses once

the five-year period expires. Finally, the

Commission concludes that a PCS

licensee is permitted but not required to

satisfy its obligation by making a lumpsum payment based on present value

using current interest rates, as suggested

by some incumbents.

20. Second, increased maintenance

costs must be taken into consideration

when determining whether operating

costs are comparable. As several

commenters point out, maintenance

costs associated with analog systems are

frequently higher than the costs for

equivalent digital systems, because

manufacturers are producing mostly

digital equipment and analog

replacement parts can be difficult to

find. The Commission declines to adopt

API’s suggestion that ‘‘serviceability’’—

which would require that access to

those elements essential to restoration of

service be equal to or greater than the

original system—should be adopted as a

fourth element, however, because the

Commission believes that the ease of

servicing the equipment will affect

repair costs, which will be factored into

operating costs. Furthermore, the

Commission agrees with incumbents

that, in some instances, the operating

costs of 6 GHz analog equipment might

be so high that analog replacement

facilities would not qualify as

comparable. On the other hand, if an

available analog replacement system

would provide equivalent technical

capability without increasing the

incumbent’s operating costs or

sacrificing any of the other factors the

Commission has identified, the

Commission agrees with PCS licensees

that such an analog system would be

acceptable. In sum, the Commission’s

goal is to ensure that incumbents are no

worse off than they would be if

relocation were not required, not to

guarantee incumbents superior systems

at the expense of PCS licensees.

21. Trade Offs. The Commission also

concludes that comparable replacement

facilities may not be provided by trading

off any of the system parameters

discussed above. Thus, the Commission

agrees with incumbents that PCS

licensees should not be permitted to

compromise on one aspect of

comparability, such as system

reliability, by compensating with

another factor, such as increased

throughput. Based on the record in this

proceeding, the Commission believes

that the factors the Commission has

identified are central to the concept of

comparability, and therefore the

replacement system provided to an

incumbent during an involuntary

relocation must be at least equivalent to

the incumbent’s existing system with

respect to system reliability, throughput,

and operating costs. However, other

aspects of the system (e.g., bandwidth)

do not have to be equivalent to the

incumbent’s original 2 GHz system. As

PCS licensees point out, it might be

possible to achieve comparability with

respect to the three main factors, even

though all of the features on the

replacement equipment are not identical

to those of the original system. Other

media, such as land lines, would also be

acceptable, provided that comparability

is achieved.

22. Depreciation. In the Cost-Sharing

Notice, the Commission also sought

comment on whether and how

depreciation of equipment and facilities

should be taken into account, and

whether it would be appropriate for a

PCS licensee to compensate an

incumbent only for the depreciated

value of the old equipment. Some PCS

licensees contend that depreciation

should be taken into account during the

mandatory period as a means of

encouraging incumbents to accept offers

during the voluntary period. The

Commission is persuaded by

incumbents, however, that

compensation for the depreciated value

of old equipment would not enable

them to construct a comparable

replacement system without imposing

costs on the incumbent, which would be

inconsistent with the Commission’s

relocation rules. The Commission

therefore concludes that the depreciated

value of old equipment should not be a

factor when determining comparability.

b. Relocating Individual Links

23. The Commission affirms its

decision in the 1994 Memorandum

Opinion and Order that PCS licensees

are obligated to pay to relocate

incumbents to comparable facilities

only with respect to the specific

microwave links for which their systems

pose an interference problem. Thus, the

Commission clarifies that PCS licensees

are not under an obligation to move an

incumbent’s entire system at once,

unless all of the links in the

incumbent’s system would be subject to

interference by the PCS licensee.

Although system-wide relocations may

be preferable and less disruptive to the

incumbent, the Commission concludes

that it would be inappropriate to

increase a PCS licensee’s monetary

obligation, e.g., by requiring it to pay to

relocate links that it never intended to

move, after the licenses have already

been auctioned. In fact, several

commenters—particularly those bidding

in the C block auction—have stated in

their comments that they are

intentionally designing their systems in

such a way that existing links will not

have to be relocated. Moreover,

incumbents are not harmed by this

policy because, as PCS licensees point

out, many incumbents already operate

networks that consist of both 2 GHz and

6 GHz links or a combination of digital

and analog technology. Furthermore, the

Commission’s rules protect microwave

operations by requiring PCS licensees to

provide incumbents with a seamless

transition from their old facilities to the

replacement facilities. Thus, if

providing a seamless transition requires

it, PCS licensees must relocate

additional links or pay for additional

costs associated with integrating the

new links into the old system, such as

employing a different modulation

technique to preserve the system’s

overall integrity. If problems arise, the

PCS licensee is required under the

Commission’s rules to remedy the

situation.

24. To ease the burden on

incumbents, the Commission has

adopted a cost-sharing plan to promote
29684 Federal Register / Vol. 61, No. 114 / Wednesday, June 12, 1996 / Rules and Regulations

the relocation of all links in a system at

the same time. By enabling PCS

licensees to collect reimbursement from

subsequent licensees that benefit from

the relocation, the Commission believes

that its cost-sharing plan will promote a

larger number of system-wide

relocations.

c. Transaction Expenses

25. The Commission concludes that

incumbents should be reimbursed only

for legitimate and prudent transaction

expenses that are directly attributable to

an involuntary relocation, subject to a

cap of two percent of the ‘‘hard’’ costs

involved (e.g., equipment, new towers,

site acquisition). Although the

Commission proposed in the CostSharing Notice that PCS licensees

should not be required to reimburse

incumbents for any ‘‘extraneous’’

expenses, such as fees for attorneys and

consultants, the Commission is

persuaded by commenters that some

reimbursement for outside assistance is

necessary, because not all incumbents

have expertise in these fields within

their organizations. The Commission

concludes that PCS licensees are not

required to pay incumbents for internal

resources devoted to the relocation

process, however, because such

expenses are difficult to determine and

would be too hard for a PCS licensee to

verify. Moreover, the benefits

incumbents receive as a result of

relocation, such as superior equipment,

are likely to outweigh any internal costs

they incur.

26. To prevent abuses, PCS licensees

will not be required to reimburse

incumbents for transaction costs that

exceed two percent of the hard costs

associated with an involuntary

relocation. Rather than adopt a cap on

the dollar amount that can be spent on

transaction expenses, the Commission

believes that a percentage of the total

hard costs, as suggested by Cox & Smith,

is more appropriate. Therefore, if

complicated and costly actions, such as

land acquisition, are required to

accomplish relocation, the permissible

amount of reimbursement for

transaction costs would be higher. The

Commission also believes that a twopercent cap is reasonable and strikes a

fair balance between the concerns of

PCS licensees and microwave

incumbents. The Commission derived

two percent from CIPCO’s suggested cap

of $5,000 per link, which is two-percent

of $250,000—the amount the

Commission has determined to be the

average cost of relocating a link.

Furthermore, PCS licensees will not be

required to pay for transaction costs

incurred by incumbents during the

voluntary or mandatory negotiation

periods once an involuntary relocation

is initiated, nor will they be required to

pay for fees that cannot be legitimately

tied to the provision of comparable

facilities, such as consultant fees for

determining how much of a premium

payment PCS licensees would be

willing to pay. The Commission agrees

with PCS licensees that they should not

have to reimburse incumbents for such

fees, because it would encourage

incumbents to view the relocation

process as a business opportunity.

Furthermore, requiring PCS licensees to

pay such fees does not serve the public

interest, because added expenses are

likely to be passed on to the public in

the form of increased PCS subscriber

fees.

d. Twelve-Month Trial Period

27. As a preliminary matter, the

Commission clarifies that the twelvemonth trial period is only automatic if

an involuntary relocation occurs.

Therefore, if the parties decide that a

trial period should be established for

relocations that occur during the

voluntary and mandatory period, they

must provide for such a period in the

relocation contract.

28. Because our proposed

clarifications to the twelve-month trial

period received broad record support,

the Commission adopts the following

clarifications to Section 94.59(e) of our

rules:

(1) The trial period will commence on

the date that the incumbent begins full

operation (as opposed to testing) on the

replacement link; and

(2) An incumbent’s right to a twelvemonth trial period resides with the

incumbent as a function of the

Commission’s relocation rules,

regardless of whether the incumbent has

previously surrendered its license. If,

however, a microwave licensee has

retained its 2 GHz authorization during

the trial period, it is required to return

the license to the Commission at the

conclusion of that period.

In Commission’s initial rule, 47 CFR

§ 94.59(c), the Commission stated that

they would convert the microwave

incumbent to secondary status after the

replacement system is built and the

microwave incumbent has been

provided with a reasonable amount of

time to determine comparability. The

Commission sees no reason, however,

for the incumbent to retain its 2 GHz

license once it has been relocated. The

Commission declines to adopt the

suggestion that the Commission’s

twelve-month trial period should be

extended or begin again if a problem

arises. The Commission concludes that

incumbents are adequately protected

without such an extension because, by

the end of the twelve-month period, the

Commission’s rules require that they be

operating on facilities that are

comparable. If at the end of the twelve

months the PCS licensee has still failed

to meet this requirement, it must

relocate the incumbent back to its

former or equivalent 2 GHz frequencies.

Thus, the expiration of the twelvemonth period does not leave the

incumbent without further recourse.

29. As a related matter, the

Commission clarifies that, even after the

PCS licensee has initiated the

involuntary relocation process, a

mutually acceptable agreement will still

be permissible. If the parties do sign an

agreement specifying their own terms,

the Commission will treat the agreement

in the same manner as the Commission

treats agreements that are consummated

during the voluntary and mandatory

periods, and the parties will be bound

by contract rather than our rules. The

Commission agrees with commenters

that neither incumbents nor PCS

licensees are harmed by such a policy,

because neither party is obligated to

enter into such an agreement. If the

agreement falls through, however, the

incumbent will be subject to

involuntary relocation.

30. Finally, the Commission declines

to reduce the trial period to one month

as suggested by PCS licensees. The

Commission agrees with incumbents

that twelve months is an appropriate

time period, because it gives the

incumbent the opportunity to ensure

that the facilities function properly

during changes in climate and

vegetation. The Commission also takes

this opportunity to clarify that PCS

licensees are not required to leave the

incumbent’s former 2 GHz spectrum

vacant during the twelve-month trial

period. The Commission agrees with

PCIA that requiring PCS licensees to

hold this spectrum in reserve would

delay the deployment of PCS for at least

one year, which does not serve the

public interest. The Commission also

clarifies that, if the microwave

incumbent demonstrates that the new

facilities are not comparable to the

former facilities, the PCS licensee must

remedy the defects or pay to relocate the

microwave 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 qualifies as

comparable.
Federal Register / Vol. 61, No. 114 / Wednesday, June 12, 1996 / Rules and Regulations 29685

e. Request for Clarification of

Involuntary Relocation Procedures

31. The Commission believes that

AT&T Wireless, et al., have raised

legitimate issues regarding the

procedures for implementing

involuntary relocation at the conclusion

of the mandatory negotiation period.

The issues raised in their letter,

however, were not included in the CostSharing Notice, nor were they raised in

any of the regularly filed comments or

reply comments in this proceeding.

Because of the relative lateness of the

parties’ ex parte filing and the lack of

opportunity for other parties to

comment, the Commission declines to

address these issues at this time.

Nevertheless, the Commission

encourages the parties to the April 15

letter or any other interested parties to

file a petition for rulemaking on the

issues raised in the letter.

4. Public Safety Certification

32. The Commission agrees with PCS

licensees that certification is necessary

to ensure that only those public safety

incumbents meriting special status are

allowed the advantages of extended

negotiation periods. The Commission

also agrees with incumbents, however,

that self-certification is appropriate,

because self-certification will not

burden public agencies with timeconsuming reporting requirements. The

Commission declines to adopt the

suggestion made by AT&T that all

public safety incumbents should be

required to apply to the Commission for

certification, because such a

requirement would be administratively

burdensome for the Commission and

could delay negotiations. Furthermore,

the Commission believes that PacBell’s

concerns about biased public agencies

are overstated, because the Commission

does not believe public agencies will be

inclined to falsify the certification.

33. The Commission concludes that,

in order for a public safety licensee to

qualify for extended negotiation periods

under the Commission’s rules, the

department head responsible for system

oversight must certify to the PCS

licensee requesting relocation that:

(1) The agency is a licensee in the

Police Radio, Fire Radio, Emergency

Medical, Special Emergency Radio

Services, or that it is a licensee of other

Part 94 facilities licensed on a primary

basis under the eligibility requirements

of Part 90, Subparts B and C; and

(2) the majority of communications

carried on the facilities at issue involve

safety of life and property.

A public safety licensee must provide

certification within 30 days of a request

from a PCS licensee or the PCS licensee

may presume that special treatment is

inapplicable to the incumbent. If an

incumbent falsely certifies to a PCS

licensee that it qualifies for the

extended time periods, the incumbent

will be in violation of the Commission’s

rules and subject to appropriate

penalties. Such an incumbent would

also immediately become subject to the

non-public safety time periods.

5. Dispute Resolution

34. Because relocations that occur

pursuant to agreements arrived at

during the voluntary and mandatory

period are relocations pursuant to

private contracts, the Commission

anticipates that parties will pursue

common law contract remedies if a

dispute arises. Thus, if parties do not

agree to use alternative dispute

resolution techniques, the Commission

expects that they will file suit in a court

of competent jurisdiction.

35. To the extent that disputes arise

over violation of the Commission’s rules

(e.g., the good faith requirement,

involuntary relocation procedures), the

Commission has stated that parties are

encouraged to use ADR techniques.

Commenters agree that resolution of

such disputes entirely by the

Commission’s adjudication processes

would be time consuming and costly to

all parties. Therefore, the Commission

continues to encourage parties to

employ ADR techniques when disputes

arise.

6. Ten Year Sunset

36. As the Commission stated in the

Cost-Sharing Notice, the Commission

continues to believe that an emerging

technology licensee’s obligation to

relocate 2 GHz microwave incumbents

should not continue indefinitely;

however, the Commission is also

persuaded by incumbents that

immediate conversion to secondary

status in the year 2005 may not be

necessary, especially with respect to

rural links that would not interfere with

any PCS systems. To strike a fair

balance between these competing

interests, the Commission concludes

that 2 GHz microwave incumbents will

retain primary status unless and until an

emerging technology licensee requires

use of the spectrum, but that the

emerging technology licensee will not

be obligated to pay relocation costs after

the relocation rules sunset, i.e., ten years

after the voluntary period begins for the

first emerging technology licensees in

the service (which is April 4, 2005, for

PCS licensees and unlicensed PCS).

Once the relocation rules sunset, an

emerging technology licensee may

require the incumbent to either cease

operations or pay to relocate itself to

alternate facilities, provided that the

emerging technology licensee intends to

turn on a system within interference

range of the incumbent, as determined

by TIA Bulletin 10–F or any standard

successor thereto. Notification must be

in writing, and the emerging technology

licensee must provide the incumbent

with no less than six months to vacate

the spectrum. Emerging technology

licensees may provide notice prior to

the date that the relocation rules sunset,

but may not turn on their systems until

after that date. After the six-month

notice period has expired, the

incumbent will be required to turn its 2

GHz license back into the Commission,

unless the parties have entered into an

agreement which allows the incumbent

to continue to operate on a mutually

agreed upon basis. The Commission

concludes that their decision promotes

spectrum efficiency, because it allows

microwave incumbents to continue to

operate in the 2 GHz band until their

spectrum is needed by an emerging

technology licensee.

37. The Commission believes that a

sunset date for the Commission’s

microwave relocation rules serves the

public interest, because it provides

certainty to the process and prevents the

emerging technology licensee from

being required to pay for relocation

expenses indefinitely. Moreover, the

Commission agrees with commenters

that ten years provides incumbents with

sufficient time (1) to negotiate a

relocation agreement or (2) to plan for

relocation themselves. In fact, well over

ten years will have passed since the

Commission first announced our

intention to reallocate 2 GHz spectrum

to foster the introduction of emerging

technologies services in 1992. In other

services, the Commission has provided

incumbents with even less time to

complete relocation. For example,

private operational fixed microwave

stations in the 12 GHz band received

only five years to relocate their facilities

before they became secondary to the

Direct Broadcast Satellite (‘‘DBS’’)

Service.

38. The Commission also believes that

adopting a sunset date is important,

because it will provide 2 GHz

microwave incumbents with an

incentive to relocate to other bands

when it comes time to change or replace

their equipment. At the current time,

the Commission’s licensing records

indicate that most 2 GHz microwave

incumbents use analog equipment.

APCO contends that operating 2 GHz

analog microwave systems is becoming

infeasible, because analog systems are
29686 Federal Register / Vol. 61, No. 114 / Wednesday, June 12, 1996 / Rules and Regulations

now outdated and replacement parts

will soon be difficult, if not impossible,

to find. APCO also states that most

incumbents have long-term plans to

replace their analog systems with digital

systems once the useful life of current

equipment has expired and/or adequate

funding has been found. As BellSouth

points out, by the time the sunset date

arrives, much of the microwave

equipment operating today at 2 GHz is

likely to be either fully amortized or in

need of replacement. The Commission

believes that informing 2 GHz

incumbents that they will have to cover

their own relocation expenses after ten

years will encourage incumbents to

relocate to another band when they

replace existing equipment. By contrast,

if emerging technology licensees are

required to pay to relocate incumbents

regardless of when the relocation

occurs, incumbents will have little

incentive to make such a transition to an

alternate band voluntarily. For similar

reasons, the Commission rejects the

argument by incumbents that PCS

licensees should be required to make

relocation offers prior to the sunset date

to all incumbents located within their

market area. Again, incumbents would

have no incentive to change out their

own systems voluntarily if they knew

that PCS licensees would be required to

cover the expenses for them at a later

date. Furthermore, even if the

Commission had not reallocated the

spectrum, these incumbents would have

had to plan ahead for repair costs,

replacement equipment, and

infrastructure improvement. Given that

most incumbents will incur significant

expenses in any event when they

replace their analog system with digital

equipment, the Commission believes

that providing an incentive to

incumbents to relocate voluntarily at the

same time they purchase new

equipment serves the public interest. In

sum, the Commission believes that the

benefits of imposing a sunset date

outweigh the burdens, if any, that such

a date may impose.

39. Finally, the Commission believes

that six months is a reasonable amount

of time for most incumbents to relocate

their facilities, especially because they

will have been on notice for ten years

that they might be requested to move.

Nevertheless, the Commission

acknowledges that special

circumstances might warrant an

extension of the six-month period in

some instances to enable the incumbent

to complete relocation activities. If the

incumbent is unable to move or cannot

complete relocation in time, the

Commission encourages the parties to

negotiate a mutually acceptable

solution. In the event that the parties

cannot agree on a schedule or an

alternative arrangement, the

Commission will entertain extension

requests on a case-by-case basis.

However, the Commission intends to

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).

B. Cost-Sharing Plan

1. Overview

40. The Commission adopts its

proposed plan with a few modifications

suggested by commenters. The

Commission believes that cost-sharing

serves the public interest because (1) it

will distribute relocation costs more

equitably among PCS licensees, and (2)

it will promote the relocation of entire

microwave systems at once, which will

benefit microwave incumbents. The

Commission also believes that costsharing will accelerate the relocation

process for the PCS band as a whole,

thus promoting more rapid deployment

of service to the public. Furthermore,

the Commission concludes that the

benefits of cost-sharing outweigh the

costs that may be incurred by licensees

who become subject to reimbursement

obligations. Under the plan, these

licensees will be required to pay

reimbursement obligations only when

they have benefitted from the spectrumclearing efforts of another party.

Moreover, as discussed in greater detail

below, the Commission is adopting

limits on reimbursement to ensure that

licensees subject to the plan do not bear

a disproportionate cost. The

Commission concludes that these

provisions amply protect the interests of

such licensees.

41. Under the Commission’s costsharing plan, a PCS licensee obtains

reimbursement rights for a particular

link on the date that it signs a relocation

agreement with the microwave

incumbent operating on the link at

issue. Within ten business days of the

date the agreement is signed, the PCS

licensee submits documentation of the

agreement to a non-profit clearinghouse,

which will be selected by the Wireless

Telecommunications Bureau

(‘‘Bureau’’). If the clearinghouse has not

yet been selected, the PCS relocator will

be responsible for submitting

documentation of a relocation

agreement within ten business days of

the date that the Bureau announces that

the clearinghouse has been established

and has begun operation.

42. Prior to commencing commercial

operation, each PCS licensee is required

to send a prior coordination notification

(‘‘PCN’’) to all existing users in the area.

At the same time, each PCS licensee

shall file a copy of the PCN with the

clearinghouse. The clearinghouse will

then apply an objective test to

determine whether the proposed base

station would have posed an

interference problem to the relocated

link. If the test shows that the proposed

base station is close enough to have

posed an interference problem, the

clearinghouse will notify the subsequent

licensee that it is required to reimburse

the PCS relocator under the cost-sharing

formula for a portion of the expenses the

relocator incurred to move the link.

UTAM will be required to reimburse

PCS relocators who relocate microwave

links that were operating in the

unlicensed PCS band.

43. The clearinghouse will determine

the amount that the subsequent PCS

licensee must pay the relocator through

the use of a cost-sharing formula. The

formula takes into consideration such

factors as the actual amount paid to

relocate the link and the number of PCS

licensees that would have interfered

with the link. All calculations will be

done on a per-link basis. The

reimbursement amount also decreases

over time to reflect the fact that the

initial PCS relocator has received the

benefit of being first to market, and to

ensure that the PCS relocator pays the

largest amount, which the Commission

believes will provide an incentive to the

relocator to limit relocation expenses.

As an additional protection for laterentrants, the Commission has imposed a

cap of $250,000 per link, with an

additional $150,000 if a new or

modified tower is required, on the

amount that a PCS relocator may recoup

for the relocation of each individual

microwave link. PCS relocators are

entitled to full reimbursement, up to the

cap, for relocating non-interfering links

fully outside their market area or

licensed frequency band. Also, costs

that are incurred prior to the selection

of a clearinghouse will be reimbursable

after a clearinghouse is established.

44. Once a PCS licensee receives

written notification from the

clearinghouse of its reimbursement

obligation, it must pay the entire

amount owed within thirty calendar

days, with the exception of those small

businesses that qualify for installment

payments under the Commission’s

auction rules. UTAM will be required to
Federal Register / Vol. 61, No. 114 / Wednesday, June 12, 1996 / Rules and Regulations 29687

reimburse a PCS relocator once a county

is cleared of enough microwave links to

enable unlicensed PCS devices to

operate. Because UTAM receives its

funding in small increments over an

extended period of time, UTAM will be

permitted to satisfy its reimbursement

obligation by making quarterly

installment payments to the PCS

relocator over a period of five years, at

an interest rate of prime plus three

percent.

45. The cost-sharing plan will sunset

for all PCS licensees ten years after the

date that voluntary negotiations

commenced for A and B block licensees,

on April 4, 2005. However, the sunset

date will not eliminate the existing

obligations of PCS licensees that are

paying their portion of relocation costs

on an installment basis. Those licensees

must continue their payments until the

obligation is satisfied. Finally, while the

Commission concludes that the costsharing plan is in the public interest, the

Commission is conditioning its

adoption of these rules on approval of

an entity or organization to administer

the plan. Once an administrator is

selected, the cost-sharing rules will take

effect.

46. Participation in Cost-Sharing

Plan. By this Report and Order, the

Commission mandates that all PCS

licensees benefitting from spectrum

clearance by other PCS licensees must

contribute to such relocation costs. As

the Commission emphasized in the

Cost-Sharing Notice, however, PCS

licensees remain free to negotiate

alternative cost-sharing terms. The

Commission also agrees with

commenters that allowing PCS licensees

to enter into such private agreements

serves the public interest, because it

adds flexibility to the cost-sharing

process and may enable such parties to

save both time and the administrative

expense of seeking reimbursement from

a clearinghouse. The Commission

therefore concludes that licensees are

not required to participate in the

Commission’s cost-sharing plan if they

enter into alternative cost-sharing

agreements. The Commission also

agrees with commenters that all parties

to a separate agreement will still be

liable under the cost-sharing plan to

other PCS licensees that incur relocation

expenses. Finally, the Commission

concludes that parties to a private costsharing agreement may also seek

reimbursement through the

clearinghouse from PCS licensees that

are not parties to the agreement.

2. Dispute Resolution Under the CostSharing Plan

47. The Commission agrees with those

commenters who argue that disputes

arising out of the cost-sharing plan, such

as disputes over the amount of

reimbursement required, should be

brought to the clearinghouse first for

resolution. At the time the dispute is

brought to the clearinghouse, the parties

will be required to submit appropriate

documentation, e.g., an independent

appraisal of the equipment expenses at

issue, to support their position. To the

extent that disputes cannot be resolved

by the clearinghouse, the Commission

encourages parties to use expedited

ADR procedures, such as binding

arbitration, mediation, or other ADR

techniques. At this time, the

Commission does not designate a

specific penalty for failure to comply

with cost-sharing requirements;

however, the Commission emphasizes

that they intend to use the full realm of

enforcement mechanisms available to

them in order to ensure that

reimbursement obligations are satisfied.

3. Administration of the Cost-Sharing

Plan

48. The Commission agrees with those

commenters who suggest that the

clearinghouse administrator should be

selected through an open process. The

Commission also believes it is essential

for the plan to be administered by

industry to the fullest extent possible.

Therefore, before the Commission

implements the plan, the Commission

will seek specific proposals from parties

who wish to act as administrator and

will request public comment on any

such proposals.

49. The Commission delegates to the

Wireless Bureau 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 the Bureau.

The Bureau 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, the Bureau shall make its

selection. When the Bureau selects an

administrator, it shall announce the

effective date of the cost-sharing rules.

C. Licensing Issues

50. As of the effective date of the new

rules, the Commission will grant

pending and newly filed applications

for all major modifications and all

extensions to existing 2 GHz microwave

systems on a secondary basis. The

Commission will grant primary status

for the following limited number of

technical changes: decreases in power,

minor changes in antenna height, minor

location changes (up to two seconds),

any data correction which does not

involve a change in the location of an

existing facility, reductions in

authorized bandwidths, minor changes

in structure heights, changes in ground

elevation (but preserving centerline

height), and changes in equipment. All

other modifications will be permitted on

a secondary basis, unless (1) the

incumbent affirmatively justifies

primary status, and (2) the incumbent

establishes that the modification would

not add to the relocation costs of PCS

licensees. The Commission declines to

adopt the suggestion made by PCS

licensees that no modifications should

be allowed even on a secondary basis,

because some incumbents might not

need to relocate for several years, and

they should be permitted to make

modifications to their systems during

that time period. The Commission also

disagrees with incumbents that the

Commission’s licensing policy should

be expanded, because the Commission

believes that limiting primary site grants

is necessary to protect the interests of

PCS licensees. In sum, the Commission

believes that granting secondary site

authorizations serves the public interest,

because it balances existing licensees’

need to expand their systems with the

goal of minimizing the number of

microwave links that PCS licensees

must relocate.

51. Furthermore, the Commission

clarifies that secondary operations may

not cause interference to operations

authorized on a primary basis, and they

are not protected from interference from

primary operations. Thus, an incumbent

operating under a secondary

authorization must cease operations if it

poses an interference problem to a PCS

licensee. However, prior to commencing

operations, PCS licensees are obligated

to provide all incumbents that are

operating within interference range,

regardless of whether an incumbent is

operating under a primary or a

secondary site authorization, with thirty

days notice that they will be

commencing operations in the vicinity.

Finally, PCS licensees are under no

obligation to pay to relocate secondary

links that exist within their market area

and frequency block.

D. Application to Other Emerging

Technology Licensees

52. The Commission agrees with

AT&T that the cost-sharing plan and

rule clarifications adopted in this

proceeding should apply to all emerging

technology services, including those
29688 Federal Register / Vol. 61, No. 114 / Wednesday, June 12, 1996 / Rules and Regulations

services in the 2110–2150 and 2160–

2200 GHz band that have not yet been

licensed, because the microwave

relocation rules already apply to all

emerging technology services. For the

same reasons that these changes will

facilitate the deployment of PCS, the

Commission believes these changes will

also facilitate the deployment of other

emerging technology services. For

example, these changes and

clarifications will provide additional

guidance and help to accelerate

negotiations between the parties.

However, as new services develop, the

Commission may review its relocation

rules and make modifications to these

rules where appropriate. In addition,

while the Commission concludes that

cost-sharing should apply to all

emerging technology services, the

Commission does not adopt specific

cost-sharing rules for new services at

this time, but will develop such rules in

future proceedings.

III. Conclusion

53. The Commission believes that the

rules adopted in this Report and Order

will promote the public policy goals set

forth by Congress. The cost-sharing

formula adopted herein will facilitate

the rapid relocation of microwave

facilities operating in the 2 GHz band,

and will allow PCS licensees to offer

service to the public in an expeditious

manner.

IV. Procedural Matters

A. Regulatory Flexibility Act

As required by Section 603 of the

Regulatory Flexibility Act, an Initial

Regulatory Flexibility Analysis (IRFA)

was incorporated in the Notice of

Proposed Rule Making in WT Docket

No. 95–157, RM–8643. The Commission

has prepared a Regulatory Flexibility

Analysis of the expected impact on

small entities of the proposals suggested

in this document. Written comments

were requested. The Commission’s final

analysis is as follows:

Need for and purpose of the action:

This rulemaking proceeding has

implemented Congress’ goal of

encouraging emerging technologies and

bringing innovative commercial

wireless services to the public in an

efficient manner. The cost-sharing plan

will promote the efficient relocation of

microwave licensees by encouraging

PCS licensees to relocate entire

microwave systems rather than

individual microwave links. A costsharing plan is necessary to enhance the

speed of relocation and provide an

incentive to PCS licensees to negotiate

system-wide relocation agreements with

microwave incumbents. This action will

result in faster deployment of PCS and

delivery of service to the public. The

Commission has also clarified some

terminology regarding certain aspects of

the Commission’s rules for microwave

relocation contained in the

Commission’s Emerging Technologies

proceeding, Docket No. 92–9.

Issues raised in response to the IRFA:

The American Public Power Association

(‘‘APPA’’) states that conversion of 2

GHz microwave systems to secondary

status in the year 2005 would have a

particularly severe impact on the

limited budgets of small, non-profit

public utility systems.

Significant alternatives considered

and rejected: Although the Commission

has decided not to convert microwave

incumbents to secondary status

automatically as the Commission

proposed in the Cost-Sharing Notice,

microwave incumbents will be required

to pay for their own relocation costs

after the sunset date. The Commission

has considered the impact of the ten

year sunset date, and the Commission

has determined that the benefits of

imposing a sunset date outweigh the

burdens such a date may impose on

these incumbents. For further

discussion, see Section IV(A)(6), supra.

B. Paperwork Reduction Act

This First Report and Order contains

either a proposed or modified

information collection. The

Commission, as part of its continuing

effort to reduce paperwork burdens,

invites the general public and the Office

of Management and Budget (OMB) to

comment on the information collections

contained in this First Report and

Order, as required by the Paperwork

Reduction Act of 1995, Public Law 104–

13. Comments should address: (a)

whether the proposed collection of

information is necessary for the proper

performance of the functions of the

Commission, including whether the

information shall have practical utility;

(b) the accuracy of the Commission’s

burden estimates; (c) ways to enhance

the quality, utility and clarity of the

information collected; and (d) ways to

minimize the burden of the collection of

information on the respondents,

including the use of automated

collection techniques or other forms of

information technology.

Further Information. For additional

information concerning the information

collections contained in this Report and

Order, contact Dorothy Conway at (202)

418–0217, or via the Internet at

dconway@fcc.gov.

Supplementary Information:

Title: Amendment of the

Commission’s Rules Regarding a Plan

for Sharing the Costs of Microwave

Relocation, First Report and Order.

Type of Review: Revision to existing

collection.

Respondents: Personal

Communications Service licensees that

relocate existing microwave operators,

subsequent Personal Communications

Service applicants potentially benefitted

by such relocation, and incumbent

microwave operators.

Number of Respondents:

Approximately 2,000.

Estimated Time Per Response: One

hour to compose, type and mail the

information to the requesting party.

Total Annual Burden: Approximately

2,000 hours.

Estimated Costs Per Respondent:

Assuming that respondent uses one

attorney at $200/hour to compose, type

and mail the information to the

requesting party, respondents’ costs are

estimated at approximately $200 per

one-time response.

Needs and Uses. The Commission

recently adopted a First Report and

Order regarding a plan for sharing the

costs of relocating microwave facilities

currently operating in the 1850 to 1990

MHz (2 GHz) band, which has been

allocated for use by broadband Personal

Communications Services (PCS).

Amendment of the Commission’s Rules

Regarding a Plan for Sharing the Costs

of Microwave Relocation, First Report

and Order, adopted April 25, 1996. The

First Report and Order establishes a

mechanism whereby PCS licensees that

incur costs to relocate microwave links

would receive reimbursement for a

portion of those costs from other PCS

licensees that also benefit from the

resulting clearance of the spectrum.

The First Report and Order concludes,

inter alia, that in order for a public

safety licensee to qualify for extended

negotiation periods under the

Commission’s Rules, the department

head responsible for system oversight

must certify to the PCS licensee

requesting relocation that:

(1) the agency is a licensee in the

Police Radio, Fire Radio, Emergency

Medical, Special Emergency Radio

Services, or that it is a licensee of other

Part 94 facilities licensed on a primary

basis under the eligibility requirements

of Part 90, Subparts B and C; and

(2) the majority of communications

carried on the facilities at issue involve

safety of life and property.

A public safety licensee must provide

certification within 30 days of a request

from a PCS licensee, or the PCS licensee

may presume that special treatment is

inapplicable to the incumbent.
Federal Register / Vol. 61, No. 114 / Wednesday, June 12, 1996 / Rules and Regulations 29689

In addition, the First Report and

Order concludes that good faith

negotiation between parties involved in

microwave relocation requires each

party to provide information to the other

that is reasonably necessary to facilitate

the relocation process. For example,

upon request by a PCS licensee, the

Commission expects incumbents to

provide any information that the PCS

licensee needs in order to evaluate the

cost of relocating the incumbent to

comparable facilities.

The legal authority for this proposed

information collection includes 47

U.S.C. Sections 154(i), 303(c), 303(f),

303(g), 303(r) and 332. The information

collection would not affect any FCC

Forms. The proposed collection would

increase minimally the burden on

public safety licensees seeking to

qualify for an extended negotiation

period by requiring such a licensee to

self-certify to the PCS licensee

requesting relocation that it is indeed a

public safety licensee, and by requiring

that licensees share information in good

faith.

C. Ex Parte Rules—Non-Restricted

Proceeding

This is a non-restricted notice and

comment rulemaking proceeding. Ex

parte presentations are permitted except

during the Sunshine Agenda period,

provided they are disclosed as provided

in Commission rules.

D. Authority

Authority for issuance of this Report

and Order is contained in the

Communications Act, Sections 4(i), 7,

303(c), 303(f), 303(g), 303(r), and 332, 47

U.S.C. §§ 154(i), 157, 303(c), 303(f),

303(g), 303(r), 332, as amended.

E. Ordering Clauses

Accordingly, it is ordered that Section

15.307 is amended as set forth below

and will become effective August 12,

1996.

It is further ordered that Section

22.602 is amended as set forth below

and will become effective August 12,

1996.

It is further ordered that Sections 24.5,

24.237, 24.239. 24.241, 24.243, 24.245,

24.247, 24.249, 24.251, 24.251 and

24.253 are amended as set forth below.

It is further ordered that the costsharing plan is conditioned on approval

by the Wireless Telecommunications

Bureau of an entity (or entities) to

administer the plan, as described in

Section IV(B)(3), supra.

It is further ordered that Part 24 rule

changes will become applicable on the

date that the Wireless

Telecommunications Bureau selects a

clearinghouse to administer the costsharing plan. The Commission will

issue a public announcement after the

selection has been made.

It is further ordered that Sections

101.3, 101.67, 101.69, 101.71, 101.73,

101.75, 101.77, 101.79, 101.81 and

101.147, the new Part 101 (effective

August 1, 1996) of the Commission’s

rules are amended as set forth below

and will become effective August 1,

1996.

It is further ordered that rules

requiring Paperwork Reduction Act

approval shall become effective upon

approval by the Office of Management

and Budget pursuant to the Paperwork

Reduction Act of 1995, Public Law No.

104–13;

It is further ordered that, as of the

effective dates of the rules listed herein,

the Commission will only grant primary

status to applications for minor

modifications that would not add to the

relocation costs of PCS licensees, as

described in Section IV(C) supra.

It is further ordered that, as of the

effective dates of the rules listed herein,

the Commission will grant applications

for major modifications and extensions

to existing 2 GHz microwave systems

only on a secondary basis, as described

in Section IV(C) supra.

It is further ordered that the

Regulatory Flexibility Analysis, as

required by Section 604 of the

Regulatory Flexibility Act, and as set

forth in Section VII(A) is adopted.

It is further ordered that the Secretary

shall send a copy of this First Report

and Order to the Chief Counsel for

Advocacy of the Small Business

Administration.

List of Subjects

47 CFR Part 15

Radio.

47 CFR Part 22

Radio.

47 CFR Part 24

Personal communications services.

47 CFR Part 101

Fixed microwave services.

Federal Communications Commission.

William F. Caton,

Acting Secretary.

Rule Changes

Parts 15, 22, 24 and 101 of Chapter I

of Title 47 of the Code of Federal

Regulations are amended as follows:

PART 15—RADIO FREQUENCY

DEVICES

1. The authority citation for Part 15 is

revised to read as follows:

Authority: 47 U.S.C. 154, 302, 303, 304,

307 and 544A.

2. Section 15.307 is amended by

revising paragraphs (a), (f) and (g) to

read as follows:

§ 15.307 Coordination with fixed

microwave service.

(a) UTAM, Inc. is designated to

coordinate and manage the transition of

the 1910–1930 MHz band from the

Private Operational-Fixed Microwave

Service (OFS) operating under Part 101

of this chapter to unlicensed PCS

operations,

* * * * *

(f) At such time as the Commission

deems that the need for coordination

between unlicensed PCS operations and

existing Part 101 Private OperationalFixed Microwave Services ceases to

exist, the disabling mechanism required

by paragraph (e) of this section will no

longer be required.

(g) Operations under the provisions of

this subpart are required to protect

systems in the Private OperationalFixed Microwave Service operating

within the 1850–1990 MHz band until

the dates and conditions specified in

§§ 101.69 through 101.73 of this chapter

for termination of primary status.

Interference protection is not required

for Part 101 stations in this band

licensed on a secondary basis.

* * * * *

PART 22—PUBLIC MOBILE SERVICES

3. The authority citation for Part 22 is

revised to read as follows:

Authority: 47 U.S.C. 154, 303, unless

otherwise noted.

4. Section 22.602 is revised to read as

follows:

§ 22.602 Transition of the 2110–2130 and

2160–2180 MHz channels to emerging

technologies.

The microwave channels listed in

§ 22.591 have been allocated for use by

emerging technologies (ET) services. No

new systems will be authorized under

this part. The rules in this section

provide for a transition period during

which existing Paging and

Radiotelephone Service (PARS)

licensees using these channels may

relocate operations to other media or to

other fixed channels, including those in

other microwave bands. For PARS

licensees relocating operations to other

microwave bands, authorization must be

obtained under Part 101 of this chapter.
29690 Federal Register / Vol. 61, No. 114 / Wednesday, June 12, 1996 / Rules and Regulations

(a) Licensees proposing to implement

ET services may negotiate with PARS

licensees authorized to use these

channels, for the purpose of agreeing to

terms under which the PARS licensees

would—

(1) Relocate their operations to other

fixed microwave bands or other media,

or alternatively,

(2) Accept a sharing arrangement with

the ET licensee that may result in an

otherwise impermissible level of

interference to the PARS operations.

(b) PARS operations on these

channels will continue to be co-primary

with other users of this spectrum until

two years after the FCC commences

acceptance of applications for ET

services, and until one year after an ET

licensee initiates negotiations for

relocation of the fixed microwave

licensee’s operations.

(c) Voluntary Negotiations. During the

two year voluntary negotiation period,

negotiations are strictly voluntary and

are not defined by any parameters.

However, if the parties have not reached

an agreement within one year after the

commencement of the voluntary period,

the PARS licensee must allow the ET

licensee (if it so chooses) to gain access

to the existing facilities to be relocated

so that an independent third party can

examine the PARS licensee’s 2 GHz

system and prepare an estimate of the

cost and the time needed to relocate the

PARS licensee to comparable facilities.

The ET licensee must pay for any such

estimate.

(d) Mandatory Negotiations. If a

relocation agreement is not reached

during the two year voluntary period,

the ET licensee may initiate a

mandatory negotiation period. This

mandatory period is triggered at the

option of the ET licensee, but ET

licensees may not invoke their right to

mandatory negotiation until the

voluntary negotiation period has

expired. Once mandatory negotiations

have begun, a PARS licensee may not

refuse to negotiate and all parties are

required to negotiate in good faith. Good

faith requires each party to provide

information to the other that is

reasonably necessary to facilitate the

relocation process. In evaluating claims

that a party has not negotiated in good

faith, the FCC will consider, inter alia,

the following factors:

(1) Whether the ET licensee has made

a bona fide offer to relocate the PARS

licensee to comparable facilities in

accordance with Section 101.75(b) of

this chapter;

(2) If the PARS licensee has

demanded a premium, the type of

premium requested (e.g., whether the

premium is directly related to

relocation, such as system-wide

relocations and analog-to-digital

conversions, versus other types of

premiums), and whether the value of

the premium as compared to the cost of

providing comparable facilities is

disproportionate (i.e., whether there is a

lack of proportion or relation between

the two);

(3) What steps the parties have taken

to determine the actual cost of

relocation to comparable facilities;

(4) Whether either party has withheld

information requested by the other party

that is necessary to estimate relocation

costs or to facilitate the relocation

process. Any party alleging a violation

of our good faith requirement must

attach an independent estimate of the

relocation costs in question to any

documentation filed with the

Commission in support of its claim. An

independent cost estimate must include

a specification for the comparable

facility and a statement of the costs

associated with providing that facility to

the incumbent licensee.

(e) Involuntary period. After the

periods specified in paragraph (b) of this

section have expired, ET licensees may

initiate involuntary relocation

procedures under the Commission’s

rules. ET licensees are obligated to pay

to relocate only the specific microwave

links to which their systems pose an

interference problem. Under

involuntary relocation, a PARS licensee

is required to relocate, provided that:

(1) The ET applicant, provider,

licensee or representative guarantees

payment of relocation costs, including

all engineering, equipment, site and

FCC fees, as well as any legitimate and

prudent transaction expenses incurred

by the PARS licensee that are directly

attributable to an involuntary relocation,

subject to a cap of two percent of the

hard costs involved. Hard costs are

defined as the actual costs associated

with providing a replacement system,

such as equipment and engineering

expenses. ET licensees are not required

to pay PARS licensees for internal

resources devoted to the relocation

process. ET licensees are not required to

pay for transaction costs incurred by

PARS licensees during the voluntary or

mandatory periods once the involuntary

period is initiated or for fees that cannot

be legitimately tied to the provision of

comparable facilities;

(2) The ET applicant, provider,

licensee or representative completes all

activities necessary for implementing

the replacement facilities, including

engineering and cost analysis of the

relocation procedure and, if radio

facilities are involved, identifying and

obtaining, on the incumbents behalf,

new channels and frequency

coordination; and,

(3) The ET applicant, provider,

licensee or representative builds the

replacement system and tests it for

comparability with the existing 2 GHz

system.

(f) Comparable Facilities. The

replacement system provided to an

incumbent during an involuntary

relocation must be at least equivalent to

the existing PARS system with respect

to the following three factors:

(1) Throughput. Communications

throughput is the amount of information

transferred within a system in a given

amount of time. If analog facilities are

being replaced with analog, the ET

licensee is required to provide the PARS

licensee with an equivalent number of

4 kHz voice channels. If digital facilities

are being replaced with digital, the ET

licensee must provide the PARS

licensee with equivalent data loading

bits per second (bps). ET licensees must

provide PARS licensees with enough

throughput to satisfy the PARS

licensee’s system use at the time of

relocation, not match the total capacity

of the PARS system.

(2) Reliability. System reliability is the

degree to which information is

transferred accurately within a system.

ET licensees must provide PARS

licensees with reliability equal to the

overall reliability of their system. For

digital data systems, reliability is

measured by the percent of time the bit

error rate (BER) exceeds a desired value,

and for analog or digital voice

transmissions, it is measured by the

percent of time that audio signal quality

meets an established threshold. If an

analog voice system is replaced with a

digital voice system, only the resulting

frequency response, harmonic

distortion, signal-to-noise ratio and its

reliability will be considered in

determining comparable reliability.

(3) Operating Costs. Operating costs

are the cost to operate and maintain the

PARS system. ET licensees must

compensate PARS licensees for any

increased recurring costs associated

with the replacement facilities (e.g.

additional rental payments, increased

utility fees) for five years after

relocation. ET licensees may satisfy this

obligation by making a lump-sum

payment based on present value using

current interest rates. Additionally, the

maintenance costs to the PARS licensee

must be equivalent to the 2 GHz system

in order for the replacement system to

be considered comparable.

(g) The PARS licensee is not required

to relocate until the alternative facilities

are available to it for a reasonable time

to make adjustments, determine
Federal Register / Vol. 61, No. 114 / Wednesday, June 12, 1996 / Rules and Regulations 29691

comparability, and ensure a seamless

handoff.

(h) The Commission’s Twelve-Month

Trial Period. If, within one year after the

relocation to new facilities, the PARS

licensee demonstrates that the new

facilities are not comparable to the

former facilities, the ET applicant,

provider, licensee or representative

must remedy the defects or pay to

relocate the PARS 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 (f)

of this section. This trial period

commences on the date that the PARS

licensee begins full operation of the

replacement link. If the PARS 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.

(i) After April 25, 1996, all major

modifications and extensions to existing

PARS systems operating on channels in

the 2110–2130 and 2160–2180 MHz

bands will be authorized on a secondary

basis to future ET operations. All other

modifications will render the modified

PARS license secondary to future ET

operations unless the incumbent

affirmatively justifies primary status and

the incumbent PARS licensee

establishes that the modification would

not add to the relocation costs of ET

licensees. Incumbent PARS licensees

will maintain primary status for the

following technical changes:

(1) Decreases in power;

(2) Minor changes (increases or

decreases) in antenna height;

(3) Minor location changes (up to two

seconds);

(4) Any data correction which does

not involve a change in the location of

an existing facility;

(5) Reductions in authorized

bandwidth;

(6) Minor changes (increases or

decreases) in structure height;

(7) Changes (increases or decreases) in

ground elevation that do not affect

centerline height;

(8) Minor equipment changes.

(j) Sunset. PARS licensees will

maintain primary status in the 2110–

2130 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. ten years

after the voluntary period begins for the

first ET licensees in the service). 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

Bulletin 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 sixmonth 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).

PART 24—PERSONAL

COMMUNICATIONS SERVICES

5. The authority citation for Part 24 is

revised to read as follows:

Authority: 47 U.S.C. 154, 301, 302, 303,

309 and 332.

6. Section 24.5 is amended by adding

the definitions for ‘‘PCS Relocator’’ and

‘‘UTAM’’ in alphabetical order to read

as follows:

§ 24.5 Definitions.

* * * * *

PCS Relocator. A PCS entity that pays

to relocate a fixed microwave link from

its existing 2 GHz facility to other media

or other fixed channels.

UTAM. The Unlicensed PCS Ad Hoc

Committee for 2 GHz Microwave

Transition and Management, which

coordinates relocation in the 1910–1930

MHz band.

* * * * *

7. Section 24.237 is amended by

revising paragraph (c) to read as follows:

§ 24.237 Interference protection.

* * * * *

(c) In all other respects, coordination

procedures are to follow the

requirements of § 101.103(d) of this

chapter to the extent that these

requirements are not inconsistent with

those specified in this part.

* * * * *

8. Subpart E is amended by adding a

new heading following Section 24.238

to read as follows:

Policies Governing Microwave

Relocation From the 1850–1990 MHz

Band

9. A new Section 24.239 is added to

Subpart E to read as follows:

§ 24.239 Cost-sharing requirements for

Broadband PCS.

Frequencies in the 1850–1990 MHz

band listed in § 101.147(c) of this

chapter have been allocated for use by

PCS. In accordance with procedures

specified in §§ 101.69 through 101.81 of

this chapter, PCS entities (both licensed

and unlicensed) are required to relocate

the existing Fixed Microwave Services

(FMS) licensees in these bands if

interference to the existing FMS

operations would occur. All PCS

entities who benefit from spectrum

clearance by other PCS entities must

contribute to such relocation costs. PCS

entities may satisfy this requirement by

entering into private cost-sharing

agreements or agreeing to terms other

than those specified in § 24.243.

However, PCS entities are required to

reimburse other PCS 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 § 24.241) from PCS entities that are

not parties to the agreement. The costsharing plan is in effect during all

phases of microwave relocation

specified in § 101.69 of this chapter.

10. A new Section 24.241 is added to

Subpart E to read as follows:

§ 24.241 Administration of the CostSharing Plan.

The Wireless Telecommunications

Bureau, under delegated authority, will

select an entity to operate as a neutral,

not-for-profit clearinghouse. This

clearinghouse will administer the costsharing plan by, inter alia, maintaining

all of the cost and payment records

related to the relocation of each link and

determining the cost-sharing obligation

of subsequent PCS entities. The costsharing rules will not take effect until an

administrator is selected.

11. A new Section 24.243 is added to

Subpart E to read as follows:
29692 Federal Register / Vol. 61, No. 114 / Wednesday, June 12, 1996 / Rules and Regulations

§ 24.243 The Cost-Sharing Formula.

A PCS 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, is

entitled to pro rata reimbursement based

on the following formula:

R

C

N

T

N

m = × [ ] 120 − ( )

120

(a) RN equals the amount of

reimbursement.

(b) C equals the actual cost of

relocating the link. 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; 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. C also includes

incumbent transaction expenses that are

directly attributable to the relocation,

subject to a cap of two percent of the

‘‘hard’’ costs involved. C may not

exceed $250,000 per link, with an

additional $150,000 permitted if a new

or modified tower is required.

(c) N equals the number of PCS

entities that would have interfered with

the link. For the PCS relocator, N = 1.

For the next PCS entity that would have

interfered with the link, N=2, and so on.

(d) TM equals the number of months

that have elapsed between the month

the PCS relocator obtains

reimbursement rights and the month

that the clearinghouse notifies a laterentrant of its reimbursement obligation.

A PCS relocator obtains reimbursement

rights on the date that it signs a

relocation agreement with a microwave

incumbent.

12. A new Section 24.245 is added to

Subpart E to read as follows:

§ 24.245 Reimbursement under the CostSharing Plan.

(a) Registration of Reimbursement

Rights. To obtain reimbursement, a PCS

relocator must submit documentation of

the relocation agreement to the

clearinghouse within ten business days

of the date a relocation agreement is

signed with an incumbent. If the

clearinghouse has not yet been selected,

the PCS relocator will be responsible for

submitting documentation of the

relocation agreement within ten

business days of the date that the

Wireless Telecommunications Bureau

issues a public notice announcing that

the clearinghouse has been established

and has begun operation.

(b) Documentation of Expenses. Once

relocation occurs, the PCS relocator

must submit documentation itemizing

the amount spent for items listed in

§ 24.243(b). The PCS relocator must

identify the particular link associated

with appropriate expenses (i.e., costs

may not be averaged over numerous

links). If a PCS relocator pays a

microwave incumbent a monetary sum

to relocate its own facilities, the PCS

relocator must estimate the costs

associated with relocating the

incumbent by itemizing the anticipated

cost for items listed in § 24.243(b). If the

sum paid to the incumbent cannot be

accounted for, the remaining amount is

not eligible for reimbursement. A PCS

relocator may submit receipts or other

documentation to the clearinghouse for

all relocation expenses incurred since

April 5, 1995.

(c) Full Reimbursement. A PCS

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

§ 24.243(b). Such reimbursement will

not be subject to depreciation under the

cost-sharing formula.

13. A new Section 24.247 is added to

Subpart E to read as follows:

§ 24.247 Triggering a Reimbursement

Obligation.

(a) Licensed PCS. The clearinghouse

will apply the following test to

determine if a PCS entity preparing to

initiate operations must pay a PCS

relocator in accordance with the

formula detailed in § 24.243:

(1) All or part of the relocated

microwave link was initially co-channel

with the licensed PCS band(s) of the

subsequent PCS entity;

(2) A PCS relocator has paid the

relocation costs of the microwave

incumbent; and

(3) The subsequent PCS entity is

preparing to turn on a fixed base station

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:

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BILLING CODE 6712–01–C
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(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 subsequent PCS entity of the total

amount of its reimbursement obligation.

(b) Unlicensed PCS. UTAM’s

reimbursement obligation is triggered

either:

(1) When a county is cleared of

microwave links in the unlicensed

allocation, and UTAM invokes a Zone 1

power cap as a result of third party

relocation activities; or

(2) A county is cleared of microwave

links in the unlicensed allocation and

UTAM reclassifies a Zone 2 county to

Zone 1 status.

14. A new Section 24.249 is added to

Subpart E to read as follows:

§ 24.249 Payment Issues.

(a) Timing. On the day that a PCS

entity files its prior coordination notice

(PCN) in accordance with § 101.103(d)

of this chapter, it must file a copy of the

PCN with the clearinghouse. The

clearinghouse will determine if any

reimbursement obligation exists and

notify the PCS entity in writing of its

repayment obligation, if any. When the

PCS entity receives a written copy of

such obligation, it must pay directly to

the PCS relocator the amount owed

within thirty days, with the exception of

those businesses that qualify for

installment payments. A business that

qualifies for an installment payment

plan must make its first installment

payment within thirty days of notice

from the clearinghouse. UTAM’s first

payment will be due thirty days after its

reimbursement obligation is triggered as

described in § 24.247(b).

(b) Eligibility for Installment

Payments. PCS licensees that are

allowed to pay for their licenses in

installments under our designated entity

rules will have identical payment

options available to them with respect

to payments under the cost-sharing

plan. The specific terms of the

installment payment mechanism,

including the treatment of principal and

interest, are the same as those

applicable to the licensee’s installment

auction payments. If, for any reason, the

entity eligible for installment payments

is no longer eligible for such installment

payments on its license, that entity is no

longer eligible for installment payments

under the cost-sharing plan. UTAM may

make quarterly payments over a fiveyear period with an interest rate of

prime plus 2.5 percent. UTAM may also

negotiate separate repayment

arrangements with other parties.

15. A new Section 24.251 is added to

Subpart E to read as follows:

§ 24.251 Dispute Resolution Under the

Cost-Sharing Plan.

Disputes arising out of the costsharing 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 ADR

procedures, such as binding arbitration,

mediation, or other ADR techniques.

16. A new Section 24.253 is added to

Subpart E to read as follows:

§ 24.253 Termination of Cost-Sharing

Obligations.

The cost-sharing plan will sunset for

all PCS entities on April 4, 2005, which

is ten years after the date that voluntary

negotiations commenced for A and B

block PCS entities. Those PCS entities

that are paying their portion of

relocation costs on an installment basis

must continue the payments until the

obligation is satisfied.

PART 101—FIXED MICROWAVE

SERVICES

17. The authority citation for Part 101

is revised to read as follows:

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

18. Section 101.3 is amended by

adding the definition for ‘‘Secondary

Operations’’ in alphabetical order to

read as follows:

§ 101.3 Definitions.

* * * * *

Secondary Operations. Radio

communications which may not cause

interference to operations authorized on

a primary basis and which are not

protected from interference from these

primary operations.

* * * * *

19. Subpart B is amended by adding

a new heading following Section 101.67

to read as follows:

Policies Governing Microwave

Relocation From the 1850–1990 and

2110–2200 MHZ Bands

20. Section 101.69 is revised to read

as follows:

§ 101.69 Transition of the 1850–1990 and

2110–2200 MHz bands from the Fixed

Microwave Services to Personal

Communications Services and emerging

technologies.

Fixed Microwave Services (FMS)

frequencies in the 1850–1990 and 2110–

2200 MHz bands listed in §§ 101.147 (c),

(d) and (e) have been allocated for use

by emerging technology (ET) services,

including Personal Communications

Services (PCS). The rules in this section

provide for a transition period during

which ET licensees may relocate

existing FMS licensees using these

frequencies to other media or other

fixed channels, including those in other

microwave bands.

(a) ET licensees may negotiate with

FMS licensees authorized to use

frequencies in the 1850–1990 and 2110–

2200 MHz bands, for the purpose of

agreeing to terms under which the FMS

licensees would—

(1) Relocate their operations to other

fixed microwave bands or other media;

or alternatively

(2) Accept a sharing arrangement with

the ET licensee that may result in an

otherwise impermissible level of

interference to the FMS operations.

(b) FMS operations in the 1850–1990

and 2110–2200 MHz bands, with the

exception of public safety facilities

defined in § 101.77, will continue to be

co-primary with other users of this

spectrum until two years after the FCC

commences acceptance of applications

for ET services (voluntary negotiation

period), and until one year after an ET

licensee initiates negotiations for

relocation of the fixed microwave

licensee’s operations (mandatory

negotiation period). In the 1910–1930

MHz band allocated for unlicensed PCS,

FMS operations will continue to be coprimary until one year after UTAM, Inc.

initiates negotiations for relocation of

the fixed microwave licensee’s

operations. Public safety facilities

defined in § 101.77 will continue to be

co-primary in these bands until three

years after the Commission commences

acceptance of applications for an

emerging technology service (voluntary

negotiation period), and until two years

after an emerging technology service

licensee or an emerging technology

unlicensed equipment supplier or

representative initiates negotiations for

relocation of the fixed microwave

licensee’s operations (mandatory

negotiation period). If no agreement is

reached during either the voluntary or

mandatory negotiation periods, 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.

21. A new Section 101.71 is added to

Subpart B to read as follows:
29694 Federal Register / Vol. 61, No. 114 / Wednesday, June 12, 1996 / Rules and Regulations

§ 101.71 Voluntary Negotiations.

During the two or three year voluntary

negotiation period, negotiations are

strictly voluntary and are not defined by

any parameters. However, if the parties

have not reached an agreement within

one year after the commencement of the

voluntary period, the FMS licensee

must allow the ET licensee (if it so

chooses) to gain access to the existing

facilities to be relocated so that an

independent third party can examine

the FMS licensee’s 2 GHz system and

prepare an estimate of the cost and the

time needed to relocate the FMS

licensee to comparable facilities. The ET

licensee must pay for any such estimate.

22. A new Section 101.73 is added to

Subpart B to read as follows:

§ 101.73 Mandatory Negotiations.

(a) If a relocation agreement is not

reached during the two or three year

voluntary period, the ET licensee may

initiate a mandatory negotiation period.

This mandatory period is triggered at

the option of the ET licensee, but ET

licensees may not invoke their right to

mandatory negotiation until the

voluntary negotiation period has

expired.

(b) Once mandatory negotiations have

begun, an FMS licensee may not refuse

to negotiate and all parties are required

to negotiate in good faith. Good faith

requires each party to provide

information to the other that is

reasonably necessary to facilitate the

relocation process. In evaluating claims

that a party has not negotiated in good

faith, the FCC will consider, inter alia,

the following factors:

(1) Whether the ET licensee has made

a bona fide offer to relocate the FMS

licensee to comparable facilities in

accordance with Section 101.75(b);

(2) If the FMS licensee has demanded

a premium, the type of premium

requested (e.g., whether the premium is

directly related to relocation, such as

system-wide relocations and analog-todigital 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.

(c) 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.

23. A new Section 101.75 is added to

Subpart B to read as follows:

§ 101.75 Involuntary Relocation

Procedures.

(a) If no agreement is reached during

either the voluntary or mandatory

negotiation period, an ET licensee may

initiate involuntary relocation

procedures under the Commission’s

rules. ET licensees are obligated to pay

to relocate only the specific microwave

links to which their systems pose an

interference problem. Under

involuntary relocation, the FMS

licensee is required to relocate,

provided that the ET 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 FMS licensee

that are directly attributable to an

involuntary relocation, subject to a cap

of two percent of the hard costs

involved. Hard costs are defined as the

actual costs associated with providing a

replacement system, such as equipment

and engineering expenses. ET licensees

are not required to pay FMS licensees

for internal resources devoted to the

relocation process. ET licensees are not

required to pay for transaction costs

incurred by FMS 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) 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;

and

(3) Builds the replacement system and

tests it for comparability with the

existing 2 GHz system.

(b) Comparable Facilities. The

replacement system provided to an

incumbent during an involuntary

relocation must be at least equivalent to

the existing FMS system with respect to

the following three factors:

(1) Throughput. Communications

throughput is the amount of information

transferred within a system in a given

amount of time. If analog facilities are

being replaced with analog, the ET

licensee is required to provide the FMS

licensee with an equivalent number of

4 kHz voice channels. If digital facilities

are being replaced with digital, the ET

licensee must provide the FMS licensee

with equivalent data loading bits per

second (bps). ET licensees must provide

FMS licensees with enough throughput

to satisfy the FMS licensee’s system use

at the time of relocation, not match the

total capacity of the FMS system.

(2) Reliability. System reliability is the

degree to which information is

transferred accurately within a system.

ET licensees must provide FMS

licensees with reliability equal to the

overall reliability of their system. For

digital data systems, reliability is

measured by the percent of time the bit

error rate (BER) exceeds a desired value,

and for analog or digital voice

transmissions, it is measured by the

percent of time that audio signal quality

meets an established threshold. If an

analog voice system is replaced with a

digital voice system, only the resulting

frequency response, harmonic

distortion, signal-to-noise ratio and its

reliability will be considered in

determining comparable reliability.

(3) Operating Costs. Operating costs

are the cost to operate and maintain the

FMS system. ET licensees must

compensate FMS licensees for any

increased recurring costs associated

with the replacement facilities (e.g.,

additional rental payments, increased

utility fees) for five years after

relocation. ET licensees may satisfy this

obligation by making a lump-sum

payment based on present value using

current interest rates. Additionally, the

maintenance costs to the FMS licensee

must be equivalent to the 2 GHz system

in order for the replacement system to

be considered comparable.

(c) The FMS licensee is not required

to relocate until the alternative facilities

are available to it for a reasonable time

to make adjustments, determine

comparability, and ensure a seamless

handoff.

(d) Twelve-Month Trial Period. If,

within one year after the relocation to

new facilities, the FMS licensee

demonstrates that the new facilities are

not comparable to the former facilities,

the ET licensee must remedy the defects

or pay to relocate the microwave

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 FMS licensee begins full operation

of the replacement link. If the FMS

licensee has retained its 2 GHz
Federal Register / Vol. 61, No. 114 / Wednesday, June 12, 1996 / Rules and Regulations 29695

authorization during the trial period, it

must return the license to the

Commission at the end of the twelve

months.

24. A new Section 101.77 is added to

Subpart B to read as follows:

§ 101.77 Public Safety Licensees in the

1850–1990 and 2110–2200 MHz bands.

(a) Public safety facilities are subject

to the three-year voluntary and two-year

mandatory negotiation period. In order

for public safety licensees to qualify for

extended negotiation periods, the

department head responsible for system

oversight must certify to the ET licensee

requesting relocation that:

(1) The agency is a licensee in the

Police Radio, Fire Radio, Emergency

Medical, Special Emergency Radio

Services, or that it is a licensee of other

Part 101 facilities licensed on a primary

basis under the eligibility requirements

of Part 90, Subparts B and C of this

chapter; and

(2) The majority of communications

carried on the facilities at issue involve

safety of life and property.

(b) A public safety licensee must

provide certification within thirty (30)

days of a request from a ET licensee, or

the ET licensee may presume that

special treatment is inapplicable. If a

public safety licensee falsely certifies to

an ET licensee that it qualifies for the

extended time periods, this licensee will

be in violation of the Commission’s

rules and will subject to appropriate

penalties, as well as immediately

subject to the non-public safety time

periods.

25. A new Section 101.79 is added to

Subpart B to read as follows:

§ 101.79 Sunset provisions for licensees in

the 1850–1990 and 2110–2200 MHz bands.

(a) FMS licensees will maintain

primary status in the 1850–1990 and

2110–2200 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. ten years

after the voluntary period begins for the

first ET licensees in the service). 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

Bulletin 10–F 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. (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 sixmonth 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). 26. A new Section 101.81 is added to

Subpart B to read as follows:

§ 101.81 Future licensing in the 1850–1990

and 2110–2200 MHz bands.

After April 25, 1996, all major

modifications and extensions to existing

FMS systems in the 1850–1990 and

2110–2200 MHz bands will be

authorized on a secondary basis to ET

systems. All other modifications will

render the modified FMS license

secondary to ET operations, unless the

incumbent affirmatively justifies

primary status and the incumbent FMS

licensee establishes that the

modification would not add to the

relocation costs of ET licensees.

Incumbent FMS licensees will maintain

primary status for the following

technical changes: (a) Decreases in power;

(b) Minor changes (increases or

decreases) in antenna height; (c) Minor location changes (up to two

seconds);

(d) Any data correction which does

not involve a change in the location of

an existing facility; (e) Reductions in authorized

bandwidth;

(f) Minor changes (increases or

decreases) in structure height; (g) Changes (increases or decreases) in

ground elevation that do not affect

centerline height; (h) Minor equipment changes.

27. Section 101.147 is amended by

adding references to note 20 in the

entries for frequency ranges 1,850–

1,990, 2,130–2,150, 2,150–2,160 and

2,180–2,200 MHz and revising note 20

to read as follows:

§ 101.147 Frequency assignments.

(a) * * *

1,850–1,990 MHz (20)

* * * * *

2,130–2,150 MHz (20) (22)

2,150–2,160 MHz (20), (22)

* * * * *

2,180–2,200 MHz (20), (22)

* * * * *

Notes

* * * * *

(20) New facilities in these bands will be

licensed only on a secondary basis. Facilities

licensed or applied for before January 16,

1992, are permitted to make modifications

and minor extensions in accordance with

§ 101.77 and still retain primary status.

* * * * *

(22) Frequencies in these bands are for the

exclusive use of Private Operational Fixed

Point-to-Point Microwave Service (Part 101).

[FR Doc. 96–14138 Filed 6–11–96; 8:45 am]

BILLING CODE 6712–01–P

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric

Administration

50 CFR Part 301

[Docket No. 960111003–6068–03; I.D.

060496A]

Pacific Halibut Fisheries; 1996 Halibut

Landing Report No. 2

AGENCY: National Marine Fisheries

Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA),

Commerce.

ACTION: In season action.

SUMMARY: The Assistant Administrator

for Fisheries, NOAA, on behalf of the

International Pacific Halibut

Commission (IPHC), publishes these

inseason actions pursuant to IPHC

regulations approved by the U.S.

Government to govern the Pacific

halibut fishery. This action is intended

to enhance the conservation of the

Pacific halibut stock.

EFFECTIVE DATES: Oregon sport halibut

season closure: 11:59 p.m. May 25, 1996

until May 26, 1996; Southwest

Washington coast sport halibut fishery

closure: 11:59 p.m., May 26, 1996 until

May 27, 1996.

FOR FURTHER INFORMATION CONTACT:

Steven Pennoyer, 907-586-7221;

William W. Stelle, Jr., 206-526-6140; or

Donald McCaughran, 206-634-1838.

SUPPLEMENTARY INFORMATION: The IPHC,

under the Convention between the

United States of America and Canada

for the Preservation of the Halibut

Fishery of the Northern Pacific Ocean

and Bering Sea (signed at Ottawa,

Ontario, on March 2, 1953), as amended

by a Protocol Amending the Convention

(signed at Washington, DC, on March

29, 1979), has issued this inseason

action pursuant to IPHC regulations

governing the Pacific halibut fishery.