Sec.  90.677   Reconfiguration of the 806–824/851–869 MHz band in order to separate
cellular systems from non-cellular systems.

   In order to facilitate reconfiguration of the 806–824/851–869 MHz band (“800
   MHz band”) to separate high-density cellular systems from non-cellular
   systems, Nextel Communications, Inc. (Nextel) may relocate incumbents within
   the 800 MHz band by providing “comparable facilities.” For the limited
   purpose of band reconfiguration, the provisions of  Sec. 90.157 shall not apply
   and inter-category sharing will be permitted under all circumstances. Such
   relocation is subject to the following provisions:

   (a) Within thirty days of Commission approval of the Transition
   Administrator, the Transition Administrator described in  Sec. 90.676 will
   provide the Commission with a schedule detailing when band reconfiguration
   shall commence for each NPSPAC Region. The plan should also detail—by NPSPAC
   Region—which relocation option each non-Nextel ESMR licensees has chosen.
   The Chief of the Public Safety and Critical Infrastructure Division of the
   Wireless Telecommunications Bureau will finalize and approve such a plan.
   The schedule shall provide for completion of band reconfiguration in no more
   than thirty-six months following release of a public notice announcing the
   start date of reconfiguration in the first NPSPAC region. Relocation will
   commence according to the schedule set by the Transition Administrator but
   all systems must have commenced reconfiguration within thirty months of
   release of a public notice announcing the start date of reconfiguration in
   the first NPSPAC region.

   (b) Voluntary negotiations. Thirty days before the start date for each
   NPSPAC region, the Chief of the Public Safety and Critical Infrastructure
   Division of the Wireless Telecommunications Bureau will issue a public
   notice initiating a three-month voluntary negotiation period. During this
   voluntary negotiation period, Nextel and all incumbents may negotiate any
   mutually agreeable relocation agreement. Nextel and relocating incumbents
   may agree to conduct face-to-face negotiations or either party may elect to
   communicate with the other party through the Transition Administrator.

   (c) Mandatory negotiations. If no agreement is reached by the end of the
   voluntary period, a three-month mandatory negotiation period will begin
   during which both Nextel and the incumbents must negotiate in “good
   faith.” Nextel and relocating incumbents may agree to conduct face-to-face
   negotiations or either party may elect to communicate with the other party
   through the Transition Administrator. All parties are charged with the
   obligation of utmost “good faith” in the negotiation process. Among the
   factors relevant to a “good-faith” determination are:

   (1) Whether the party responsible for paying the cost of band
   reconfiguration has made a bona fide offer to relocate the incumbent to
   comparable facilities;

   (2) The steps the parties have taken to determine the actual cost of
   relocation to comparable facilities; and

   (3) Whether either party has unreasonably withheld information, essential to
   the accurate estimation of relocation costs and procedures, requested by the
   other party. The Transition Administrator may schedule mandatory settlement
   negotiations and mediation sessions and the parties must conform to such
   schedules.

   (d) Transition Administrator. (1) The Transition Administrator, or other
   mediator, shall attempt to resolve disputes referred to it before the
   conclusion of the mandatory negotiation period as described in  Sec. 90.677(c)
   within thirty working days after the Transition Administrator has received a
   submission by one party and a response from the other party. Any party
   thereafter may seek expedited non-binding arbitration which must be
   completed within thirty days of the Transition Administrator's, or other
   mediator's recommended decision or advice. Should issues still remain
   unresolved after mediation or arbitration they shall be referred to the
   Chief of the Public Safety and Critical Infrastructure Division of the
   Wireless Telecommunications Bureau within ten days of the Transition
   Administrator's or other mediator's advice, or if arbitration has occurred,
   within ten days of the completion of arbitration. When referring an
   unresolved matter to the Chief of the Public Safety and Critical
   Infrastructure Division, the Transition Administrator shall forward the
   entire record on any disputed issues, including such dispositions thereof
   that the Transition Administrator has considered. Upon receipt of such
   record and advice, the Commission will decide the disputed issues based on
   the record submitted. The authority to make such decisions is delegated to
   the Chief of the Public Safety and Critical Infrastructure Division of the
   Wireless Telecommunications Bureau who may decide the disputed issue or
   designate it for an evidentiary hearing before an Administrative Law Judge.
   If the Chief of the Public Safety and Critical Infrastructure Division of
   the Wireless Telecommunications Bureau decides an issue, any party to the
   dispute wishing to appeal the decision may do so by filing with the
   Commission, within ten days of the effective date of the initial decision, a
   Petition for de novo review; whereupon the matter will be set for an
   evidentiary hearing before an Administrative Law Judge. Any disputes
   submitted to the Transition Administrator after the conclusion of the
   mandatory negotiation period as described in  Sec. 90.677(c) shall be resolved as
   described in  Sec. 90.677(d)(2).

   (2) If no agreement is reached during either the voluntary or mandatory
   negotiating periods, all disputed issues shall be referred to the Transition
   Administrator, or other mediator, who shall attempt to resolve them. If
   disputed issues remain thirty working days after the end of the mandatory
   negotiation period, the Transition Administrator shall forward the record to
   the Chief of the Public Safety and Critical Infrastructure Division,
   together with advice on how the matter(s) may be resolved. The Chief of the
   Public Safety and Critical Infrastructure Division is hereby delegated the
   authority to rule on disputed issues, de novo. If the Chief of the Public
   Safety and Critical Infrastructure Division of the Wireless
   Telecommunications Bureau decides an issue, any party to the dispute wishing
   to appeal the decision may do so by filing with the Commission, within ten
   days of the effective date of the initial decision, a Petition for de novo
   review; whereupon the matter will be set for an evidentiary hearing before
   an Administrative Law Judge.

   (e) Waiver Requests. Incumbents who wish not to relocate according to the
   schedule may petition the Commission for a waiver of the relocation
   obligation. Such a waiver would only be granted on a strict non-interference
   basis.

   (f) Comparable Facilities. The replacement system provided to an incumbent
   must be at least equivalent to the existing 800 MHz system with respect to
   the four factors described in  Sec. 90.699(d) part.

   (g) Information Exchange. Absent agreement between parties, the Transition
   Administrator will be responsible for determining the information that
   relocating incumbents must supply in support of a relocation agreement.

   (h) The relevant Regional Planning Committee shall be informed of any
   proposed changes to any NPSPAC channel.

   [ 69 FR 67849 , Nov. 22, 2004, as amended at  70 FR 76711 , Dec. 28, 2005;  71 FR 52751 , Sept. 7, 2006]

Policies Governing the Licensing and Use of EA-Based SMR Systems in the
809–824/851–869 MHz Band