[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: 47CFR101.89]

[Page 620-621]
 
                       TITLE 47--TELECOMMUNICATION
 
                         COMMISSION (CONTINUED)
 
PART 101--FIXED MICROWAVE SERVICES--Table of Contents
 
                  Subpart B--Applications and Licenses
 
Sec. 101.89  Negotiations.

    (a) The negotiation is triggered by the fixed-satellite service 
(FSS) licensee, who must contact the fixed services (FS) licensee and 
request that negotiations begin.
    (b) Once negotiations have begun, an FS 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 FSS licensee has made a bona fide offer to relocate 
the FS licensee to comparable facilities in accordance with 
Sec. 101.91(b);
    (2) If the FS 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) Negotiations will commence when the FSS licensee informs the FS 
licensee in writing of its desire to negotiate. Negotiations will be 
conducted with the goal of providing the FS 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, the FSS licensee is 
required to provide the FS licensee with an equivalent number of 4 kHz 
voice channels. If digital facilities are being replaced with digital, 
the FSS licensee must provide the FS licensee with equivalent data 
loading bits per second (bps). FSS licensees must provide FS licensees 
with enough throughput to satisfy the FS licensee's system use at the 
time of relocation, not match the total capacity of the FS system.
    (2) Reliability. System reliability is the degree to which 
information is transferred accurately within a system. FSS licensees 
must provide FS 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

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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 FS system. FSS licensees must compensate FS licensees for 
any increased recurring costs associated with the replacement facilities 
(e.g., additional rental payments, increased utility fees) for five 
years after relocation. FSS 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 FS licensee must be 
equivalent to the 18 GHz system in order for the replacement system to 
be considered comparable.