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

    In order to facilitate provision of service throughout an EA, an EA 
licensee may relocate incumbent licensees in its EA by providing 
``comparable facilities'' on other frequencies in the 800 MHz band. Such 
relocation is subject to the following provisions:
    (a) EA licensees may negotiate with incumbent licensees as defined 
in Sec. 90.693 operating on frequencies in Spectrum Blocks A, B, and C 
for the purpose of agreeing to terms under which the incumbents would 
relocate their operations to other frequencies in the 800 MHz band, or 
alternatively, would accept a sharing arrangement with the EA licensee 
that may result in an otherwise impermissible level of interference to 
the incumbent licensee's operations. EA licensees may also negotiate 
agreements for relocation of the incumbents' facilities within Spectrum 
Blocks A, B or C in which all interested parties agree to the relocation 
of the incumbent's facilities elsewhere within these bands. ``All 
interested parties'' includes the incumbent licensee, the EA licensee 
requesting and paying for the relocation, and any EA licensee of the 
spectrum to which the incumbent's facilities are to be relocated.
    (b) The relocation mechanism consists of two phases that must be 
completed before an EA licensee may proceed to request the involuntary 
relocation of an incumbent licensee.
    (1) Voluntary negotiations. There is a one year voluntary period 
during which an EA licensee and an incumbent may negotiate any mutually 
agreeable relocation agreement. The Commission will announce the 
commencement of the first phase voluntary period by Public Notice. EA 
licensees must notify incumbents operating on frequencies included in 
their spectrum block of their intention to relocate such incumbents 
within 90 days of the release of the Public Notice that commences the 
voluntary negotiation period. Failure on the part of the EA licensee to 
notify the incumbent licensee during this 90 period of its intention to 
relocate the incumbent will result in the forfeiture of the EA 
licensee's right to request involuntary relocation of the incumbent at 
any time in the future.
    (2) Mandatory negotiations. If no agreement is reached by the end of 
the voluntary period, a one-year mandatory negotiation period will begin 
during which both the EA licensee and the incumbent must negotiate in 
``good faith.'' Failure on the part of the EA licensee to negotiate in 
good faith during this mandatory period will result in the forfeiture of 
the EA licensee's right to request involuntary relocation of the 
incumbent at any time in the future.
    (c) Involuntary relocation procedures. If no agreement is reached 
during either the voluntary or mandatory negotiating periods, the EA 
licensee may request involuntary relocation of the incumbent's system. 
In such a situation, the EA licensee must:
    (1) Guarantee payment of relocation costs, including all 
engineering, equipment, site and FCC fees, as well as any legitimate and 
prudent transaction expenses incurred by the incumbent licensee that are 
directly attributable to an involuntary relocation, subject to a cap of 
two percent of the hard costs involved. Hard costs are defined as the 
actual costs associated with providing a replacement system, such as 
equipment and engineering expenses. EA licensees are not required to pay 
incumbent licensees for internal resources devoted to the relocation 
process. EA licensees are not required to pay for transaction costs 
incurred by incumbent licensees during the voluntary or mandatory 
periods once the involuntary period is initiated, or for fees that 
cannot be legitimately tied to the provision of comparable facilities;
    (2) Complete all activities necessary for implementing the 
replacement facilities, including engineering and cost analysis of the 
relocation procedure and, if radio facilities are used, identifying and 
obtaining, on the incumbents' behalf, new frequencies and frequency 
coordination; and
    (3) Build the replacement system and test it for comparability with 
the existing 800 MHz system.
    (d) Comparable facilities. The replacement system provided to an 
incumbent during an involuntary relocation must

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be at least equivalent to the existing 800 MHz system with respect to 
the following four factors:
    (1) System. System is defined functionally from the end user's point 
of view (i.e., a system is comprised of base station facilities that 
operate on an integrated basis to provide service to a common end user, 
and all mobile units associated with those base stations). A system may 
include multiple-licensed facilities that share a common switch or are 
otherwise operated as a unitary system, provided that the end user has 
the ability to access all such facilities. A system may cover more than 
one EA if its existing geographic coverage extends beyond the EA 
borders.
    (2) Capacity. To meet the comparable facilities requirement, an EA 
licensee must relocate the incumbent to facilities that provide 
equivalent channel capacity. We define channel capacity as the same 
number of channels with the same bandwidth that is currently available 
to the end user. For example, if an incumbent's system consists of five 
50 kHz (two 25 kHz paired frequencies) channels, the replacement system 
must also have five 50 kHz channels. If a different channel 
configuration is used, it must have the same overall capacity as the 
original configuration. Comparable channel capacity requires equivalent 
signaling capability, baud rate, and access time. In addition, the 
geographic coverage of the channels must be coextensive with that of the 
original system.
    (3) Quality of service. Comparable facilities must provide the same 
quality of service as the facilities being replaced. Quality of service 
is defined to mean that the end user enjoys the same level of 
interference protection on the new system as on the old system. In 
addition, where voice service is provided, the voice quality on the new 
system must be equal to the current system. Finally, reliability of 
service is considered to be integral to defining quality of service. 
Reliability is the degree to which information is transferred accurately 
within the system. Reliability is a function of equipment failures 
(e.g., transmitters, feed lines, antennas, receivers, battery back-up 
power, etc.) and the availability of the frequency channel due to 
propagation characteristics (e.g., frequency, terrain, atmospheric 
conditions, radio-frequency noise, etc.) For digital data systems, this 
will be measured by the percent of time the bit error rate exceeds the 
desired value. For analog or digital voice transmissions, this will be 
measured by the percent of time that audio signal quality meets an 
established threshold. If analog voice system is replaced with a digital 
voice system the resulting frequency response, harmonic distortion, 
signal-to-noise ratio, and reliability will be considered.
    (4) Operating costs. Operating costs are those costs that affect the 
delivery of services to the end user. If the EA licensee provides 
facilities that entail higher operating cost than the incumbent's 
previous system, and the cost increase is a direct result of the 
relocation, the EA licensee must compensate the incumbent for the 
difference. Costs associated with the relocation process can fall into 
several categories. First, the incumbent must be compensated for any 
increased recurring costs associated with the replacement facilitates 
(e.g., additional rental payments, increased utility fees). Second, 
increased maintenance costs must be taken into consideration when 
determining whether operating costs are comparable. For example, 
maintenance costs associated with analog systems may be higher than the 
costs of digital equipment because manufacturers are producing mostly 
digital equipment and analog replacement parts can be difficult to find. 
An EA licensee's obligation to pay increased operating costs will end 
five years after relocation has occurred.
    (e) If an EA licensee cannot provide comparable facilities to an 
incumbent licensee as defined in this section, the incumbent licensee 
may continue to operate its system on a primary basis in accordance with 
the provisions of this rule part.
    (f) Cost-sharing plan for 800 MHz SMR EA licensees. EA licensees are 
required to relocate the existing 800 MHz SMR licensee in these bands if 
interference to the existing incumbent operations would occur. All EA 
licensees who benefit from the spectrum clearing by other EA licensees 
must contribute, on a pro rata basis to such relocation

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

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

    (4) Payment issues. EA licensees who benefit from the relocation of 
the incumbent will be required to submit their pro rata share of the 
relocation expense to EA licensees who have triggered a reimbursement 
right and have incurred relocation costs as follows:
    (i) For an EA licensee who, within 90 days of the release of the 
Public Notice announcing the commencement of the voluntary negotiation 
period, provides notice of its intention to relocate the incumbent, but 
does not participate or incur relocation costs in the relocation 
process, will be required to reimburse those EA licensees who have 
triggered a reimbursement right and have incurred relocation costs 
during the relocation process, its pro rata share when the channels of 
the incumbent have

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been cleared (i.e., the incumbent has been fully relocated and the 
channels are free and clear).
    (ii) For an EA licensee who does not, within 90 days of the release 
of the Public Notice announcing the commencement of the voluntary 
negotiation period, provide notice to the incumbent of its intention to 
relocate and does not incur relocation costs during the relocation 
process, but subsequently decides to use the channels in its EA, will be 
required to submit its pro rata share payment to those EA licensees who 
have triggered a reimbursement right and have incurred relocation costs 
during the relocation process prior to commencing testing of its system.
    (5) Sunset of reimbursement rights. EA licensees who do not trigger 
a reimbursement obligation as set forth in paragraph (f)(2) of this 
section, shall not be required to reimburse EA licensees who have 
triggered a reimbursement right as set forth in paragraph (f)(3) of this 
section ten (10) years after the voluntary negotiation period begins for 
EA licensees (i.e., ten (10) years after the Commission releases the 
Public Notice commencing the voluntary negotiation period).
    (6) Resolution of disputes that arise during relocation. Disputes 
arising out of the costs of relocation, such as disputes over the amount 
of reimbursement required, will be encouraged to use expedited ADR 
procedures. ADR procedures provide several alternative methods such as 
binding arbitration, mediation, or other ADR techniques.
    (7) Administration of the cost-sharing plan. We will allow for an 
industry supported, not-for-profit clearinghouse to be established for 
purposes of administering the cost-sharing plan adopted for the 800 MHz 
SMR relocation procedures.
[ 62 FR 41217 , July 31, 1997]

Subpart T--Regulations Governing Licensing and Use of Frequencies in the 
                            220-222 MHz Band

    Source:  56 FR 19603 , Apr. 29, 1991, unless otherwise noted.