[Code of Federal Regulations]

[Title 47, Volume 5]

[Revised as of October 1, 2005]

From the U.S. Government Printing Office via GPO Access

[CITE: 47CFR101.89]



[Page 626-627]

 

                       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



[[Page 627]]



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 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.