[Code of Federal Regulations]
[Title 47, Volume 5]
[Revised as of October 1, 2002]
From the U.S. Government Printing Office via GPO Access
[CITE: 47CFR101.73]

[Page 616-617]
 
                       TITLE 47--TELECOMMUNICATION
 
                         COMMISSION (CONTINUED)
 
PART 101--FIXED MICROWAVE SERVICES--Table of Contents
 
                  Subpart B--Applications and Licenses
 
Sec. 101.73  Mandatory negotiations.

    (a) If a relocation agreement is not reached during the 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-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.
    (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.
    (d) Provisions for Relocation of Fixed Microwave Licensees in the 
2165-2200 MHz band. Mandatory negotiations will commence when the 
Mobile-Satellite Service (MSS) licensee informs the fixed microwave 
licensee in writing of its desire to negotiate. Mandatory negotiations 
will be conducted with the goal of providing the fixed microwave 
licensee with comparable facilities, defined as facilities possessing 
the following characteristics:
    (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, comparable facilities 
provide an equivalent number of 4 kHz voice channels. If digital 
facilities are being replaced with digital, comparable facilities 
provide equivalent data loading bits per second (bps).
    (2) Reliability. System reliability is the degree to which 
information is transferred accurately within a system. Comparable 
facilities provide reliability equal to the overall reliability of the 
FMS system. For digital systems, reliability is measured by the percent 
of time the bit error rate (BER) exceeds a desired value, and for analog 
or digital voice transmission, it is measured by the percent of time 
that audio signal quality meets an established threshold. If an analog 
system is replaced with a digital system, only

[[Page 617]]

the resulting frequency response, harmonic distortion, signal-to-noise 
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. MSS licensees would compensate FMS licensees 
for any increased recurring costs associated with the replacement 
facilities (e.g., additional rental payments, and increased utility 
fees) for five years after relocation. MSS licensees could 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 would be equivalent to the 2 GHz system in order for the 
replacement system to be comparable.

[61 FR 29694, June 12, 1996, as amended at 62 FR 12758, Mar. 18, 1997; 
65 FR 48182, Aug. 7, 2000]