Goto Section: 101.71 | 101.75 | Table of Contents
Revised as of October 26, 2020
Goto Year:2020 |
§ 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 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
(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. 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:
(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; 78 FR 8272 , Feb. 5, 2013; 78 FR 48621 , Aug. 9, 2013]
Goto Section: 101.71 | 101.75
Goto Year: 2020 |
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