[Code of Federal Regulations]

[Title 47, Volume 5]

[Revised as of October 1, 2006]

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

[CITE: 47CFR101.73]



[Page 622-623]

 

                       TITLE 47--TELECOMMUNICATION

 

        CHAPTER I--FEDERAL COMMUNICATIONS COMMISSION (CONTINUED)

 

PART 101_FIXED MICROWAVE SERVICES--Table of Contents

 

                   Subpart B_Applications and Licenses

 

Sec.  101.73  Mandatory negotiations.



    (a) A mandatory negotiation period may be initiated at the option of 

the ET licensee. Relocation of FMS licensees by Mobile Satellite Service 

(MSS) operators (including MSS operators providing Ancillary Terrestrial 

Component (ATC) service) and AWS licensees in the 2110-2150 MHz and 

2160-2200 MHz bands will be subject to mandatory negotiations only.

    (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 

2110-2150 and 2160-2200 MHz bands. Except as otherwise provided in Sec.  

101.69(e) pertaining to FMS relocations by MSS/ATC operators, a separate 

mandatory negotiation period will commence for each FMS licensee when an 

ET licensee informs that FMS licensee in writing of its desire to 

negotiate. Mandatory negotiations will be conducted with the goal of 

providing the FMS licensee with comparable facilities defined as 

facilities possessing the following characteristics:



[[Page 623]]



    (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 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. ET 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. ET 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; 68 FR 3464, Jan. 24, 2003; 68 FR 68253, Dec. 

8, 2003; 69 FR 62622, Oct. 27, 2004; 71 FR 29842, May 24, 2006]