[Federal Register Volume 71, Number 100 (Wednesday, May 24, 2006)]
[Rules and Regulations]
[Pages 29818-29843]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-4769]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Parts 22, 27, and 101

[ET Docket No. 00-258; WT Docket No. 02-353; FCC 06-45]


Advanced Wireless Services

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: This document establishes procedures for the relocation of 
Broadband Radio Service (BRS) operations from the 2150-2160/62 MHz 
band, as well as for the relocation of Fixed Microwave Service (FS) 
operations from the 2160-2175 MHz band, and modifies existing 
relocation procedures for the 2110-2150 MHz and 2175-2180 MHz bands. 
This document also establishes cost-sharing rules to identify the 
reimbursement obligations for Advanced Wireless Service (AWS) and 
Mobile Satellite Service (MSS) entrants benefiting from the relocation 
of incumbent FS operations in the 2110-2150 MHz and 2160-2200 MHz bands 
and AWS entrants benefiting from the relocation of BRS incumbents in 
the 2150-2160/62 MHz band. We continue our ongoing efforts to promote 
spectrum utilization and efficiency with regard to the provision of new 
services, including AWS. This document also dismisses a petition for 
reconsideration filed by the Wireless Communications Association 
International, Inc. (WCA) as moot.

DATES: Effective June 23, 2006, except for Sec. Sec.  27.1166(a), (b) 
and (e); 27.1170; 27.1182(a), (b); and 27.1186, which contain 
information collection requirements that have not been approved by the 
Office of Management and Budget. The Federal Communications Commission 
will publish a document in the Federal Register announcing the 
effective date of these sections.

FOR FURTHER INFORMATION CONTACT: Patrick Forster, Office of Engineering 
& Technology, (202) 418-7061.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Ninth 
Report and Order and Order, ET Docket No. 00-258, WT Docket No. 02-353, 
FCC 06-45, adopted April 12, 2006, and released April 21, 2006. The 
full text of this document is available on the Commission's Internet 
site at http://www.fcc.gov. It is also available for inspection and 
copying during regular business hours in the FCC Reference Center (Room 
CY-A257), 445 12th Street, SW., Washington, DC 20554. The full text of 
this document also may be purchased from the Commission's duplication 
contractor, Best Copy and Printing Inc., Portals II, 445 12th St., SW., 
Room CY-B402, Washington, DC 20554; telephone (202) 488-5300; fax (202) 
488-5563; e-mail [email protected].

Summary of the Report and Order (ET Docket No. 00-258)

    1. In the Ninth Report and Order (``Ninth R&O'') in ET Docket No. 
00-258, the Commission discusses the specific relocation procedures 
that will apply to BRS and FS incumbents in the 2150-2160/62 MHz and 
2160-2175 MHz bands, respectively. We also discuss the cost-sharing 
rules that identify the reimbursement obligations for AWS and MSS 
entrants benefiting from the relocation of incumbent FS operations in 
the 2110-2150 MHz and 2160-2200 MHz bands and AWS entrants benefiting 
from the relocation of BRS incumbents in the 2150-2160/62 MHz band. The 
Commission, in earlier decisions in this docket, has allocated the 
spectrum in the 2150-2160/62 MHz and 2160-2175 MHz bands for Advanced 
Wireless Service (AWS), which is the collective term we use for new and 
innovative fixed and mobile terrestrial wireless applications using 
bandwidth that is sufficient for the provision of a variety of 
applications, including those using voice and data (such as Internet 
browsing, message services, and full-motion video) content. Advanced 
wireless systems could provide, for example, a wide range of voice, 
data, and broadband services over a variety of mobile and fixed 
networks. In establishing these relocation procedures, we facilitate 
the introduction of AWS in these bands, while also ensuring the 
continuation of BRS and FS service to the public.

[[Page 29819]]

A. Relocation of BRS in the 2150-2160/62 MHz Band

    2. In the AWS Fifth Notice of Proposed Rulemaking in ET Docket 00-
258 (``AWS Fifth Notice''), 70 FR 61752, October 26, 2005, the 
Commission proposed to generally apply our Emerging Technologies 
policies to the relocation procedures new AWS entrants should follow 
when relocating BRS incumbent licensees from the 2150-2160 MHz band. 
Comments generally support the proposal to use policies for relocation 
based on those used in the Commission's prior Emerging Technologies 
proceedings, with modifications to accommodate the incumbents in the 
band at issue. The Commission has used the Emerging Technologies 
policies in establishing relocation schemes for a variety of new 
entrants in frequency bands occupied by different types of incumbent 
operations. In establishing these relocation schemes, the Commission 
has found that the Emerging Technologies relocation policies best 
balance the interest of new licensees seeking early entry into their 
respective bands in order to deploy new technologies and services with 
the need to minimize disruption to incumbent operations used to provide 
service to customers during the transition.
    3. BRS operators are providing four categories of service offerings 
today: (1) Downstream analog video; (2) downstream digital video; (3) 
downstream digital data; and (4) downstream/upstream digital data. 
Licensees and lessees have deployed or sought to deploy these services 
via three types of system configurations: High-power video stations, 
high-power fixed two-way systems, and low-power, cellularized two-way 
systems. Traditionally, BRS licensees were authorized to operate within 
a 35-mile-radius protected service area (PSA) and winners of the 1996 
MDS auction were authorized to serve BTAs consisting of aggregations of 
counties. In the proceeding that restructured the BRS band at 2496-2690 
MHz, the Commission adopted a geographic service area (GSA) licensing 
scheme for existing BRS incumbents. Therefore, BRS relocation 
procedures must take into account the unique circumstances faced by the 
various incumbent operations and the new AWS licensees.
    4. As an initial matter, it appears that there are active BRS 
channel 1 and/or 2/2A operations throughout the United States, with 
many licensees serving a relatively small customer base of several 
thousand or fewer subscribers each. The Commission draws this 
conclusion from a number of sources of information, including BRS 
operations data submitted to the Commission in response to the Order 
portion of the AWS Eighth R&O, 70 FR 61742, October 26, 2005, Fifth 
Notice and Order in ET Docket 00-258, as well as pleadings in the 
record of this proceeding including representations made by WCA, an 
industry group that represents many BRS licensees. In response to the 
request for information to assist in determining the scope of AWS 
entrants' relocation obligations, 69 BRS licensees provided information 
on 127 stations. An examination of this data indicates that BRS 
operations can be found across the United States, in approximately 65 
of the 176 U.S. Economic Areas.
    5. WCA has estimated that BRS channels 1 and/or 2 are used in 30-50 
markets in the U.S., providing ``tens of thousands'' of subscribers in 
urban and rural areas with wireless broadband service, and in some 
cases, multichannel video programming service. While Sprint Nextel 
appears to be the largest licensee with approximately 20,000 
subscribers in 14 markets across the country, many operators have 
described smaller operations in more discrete geographic areas. 
Examples of these licensees include: Northern Wireless Communications, 
which provides broadband services on BRS channels 1 and 2 to 
approximately 725 subscribers from hub sites located in Aberdeen and 
Redfield, South Dakota, and multichannel video programming to 
approximately 950 subscribers; and W.A.T.C.H. TV, which provides more 
than 200 channels of digital video and audio to more than 12,000 
subscribers in and around Lima, Ohio, with more than 5,000 subscribers 
using BRS channels 1 and 2 for upstream wireless broadband.
1. Relocation Process
    6. Transition Plan. In the AWS Fifth Notice, the Commission 
proposed to require the AWS entrant to relocate BRS operations on a 
link-by-link basis, based on interference potential. We also proposed 
to allow the AWS entrant to determine its own schedule for relocating 
incumbent BRS operations so long as it relocates incumbent BRS 
licensees before beginning operation in a particular geographic area 
and subject to any other build-out requirements that may be imposed by 
the Commission on the AWS entrant. We further proposed to require that 
the AWS licensee relocate all incumbent BRS operations that would be 
affected by the new AWS operations, in order to provide BRS operators 
with comparable facilities.
    7. The Commission anticipates that an AWS licensee will likely use 
a terrestrial network that is comprised of several discrete geographic 
areas served by multiple base stations. Unlike satellite systems, for 
example, whose signals can blanket the whole country simultaneously, 
the terrestrial nature of an AWS licensee's service allows for the 
gradual relocation of incumbents during a geographically-based build-
out period. We recognize that this build-out period may take time 
because of the large service areas to be built out for new AWS 
networks, but expect that the AWS licensees and the incumbent BRS 
licensees will work cooperatively to ensure a smooth transition for 
incumbent operations. Upon review of the concerns raised in the record 
regarding our initial proposal for a link-by-link approach for 
relocation, we are convinced that adopting a ``system-by-system'' basis 
for relocation, based on potential interference to BRS, will better 
accommodate incumbent BRS operations. If an analysis shows that a BRS 
incumbent's ``system'' needs to be relocated, we will require that the 
base station and all end user units served by that base station be 
relocated to comparable facilities.
    8. The Commission rejects proposals that would allow BRS incumbents 
to voluntarily self relocate, i.e., to unilaterally determine when 
relocation would occur and to require AWS entrants to reimburse BRS 
incumbents based on a cost estimate for comparable facilities that were 
selected and deployed at the discretion of the incumbent without the 
involvement of and negotiation with the AWS licensee. We conclude that 
the diversity of incumbent BRS facilities and services makes it 
difficult to allow self relocation based on cost estimates and a cost 
cap, as some commenters suggest. As a practical matter, we expect a BRS 
incumbent to take an active role in the actual relocation of its 
facilities, including selecting and deploying comparable facilities, 
but we find that relocation should result from AWS-BRS negotiations or 
the involuntary relocation process discussed below. To address the 
concerns raised by BRS incumbents regarding the disclosure of their 
proprietary customer information to potential AWS competitors we do not 
require that AWS entrants be permitted to approach the incumbents' 
customers directly for relocation purposes. To balance AWS interests 
with the need to minimize disruption to an incumbent's customers, we do 
not allow the AWS entrant to begin operations in a particular 
geographic area until the

[[Page 29820]]

affected BRS incumbent is relocated (and subject to any other build-out 
requirements that may be imposed by the Commission on the AWS entrant).
    9. Comparable Facilities. Under the Emerging Technologies policy, 
the Commission allows new entrants to provide incumbents with 
comparable facilities using any acceptable technology. Incumbents must 
be provided with replacement facilities that allow them to maintain the 
same service in terms of: (1) Throughput--the amount of information 
transferred within the system in a given amount of time; (2) 
reliability--the degree to which information is transferred accurately 
and dependably within the system; and (3) operating costs--the cost to 
operate and maintain the system. Thus, the comparable facilities 
requirement does not guarantee incumbents superior systems at the 
expense of new entrants. We note that our relocation policies do not 
dictate that systems be relocated to spectrum-based facilities or even 
to the same amount of spectrum as they currently use, only that 
comparable facilities be provided. In the AWS Fifth Notice, the 
Commission proposed that if relocation were deemed necessary, BRS 
incumbents with primary status would be entitled to comparable 
facilities and sought comment on how to apply the comparable facilities 
requirement to unique situations faced by BRS licensees
    10. The Commission concludes that the Emerging Technologies policy 
of comparable facilities is the best approach to minimize disruption to 
existing services and to minimize the economic impact on licensees of 
those services, and requires that AWS licensees provide BRS incumbents 
with replacement facilities that allow them to maintain the same 
service in terms of: (1) Throughput--the amount of information 
transferred within the system in a given amount of time; (2) 
reliability--the degree to which information is transferred accurately 
and dependably within the system; and (3) operating costs--the cost to 
operate and maintain the system. In order to minimize disruption to the 
incumbent's customers, we also find that the replacement of CPE (i.e., 
end user equipment) in use at the time of relocation and that is 
necessary for the provision of BRS service should be part of the 
comparable facilities requirement. Further, consistent with our 
Emerging Technologies policy, during involuntary relocation, new AWS 
entrants will only be required to provide BRS incumbents with enough 
throughput to satisfy their system use at the time of relocation, not 
to match the overall capacity of the system. For post-1992 licensees 
operating on a combination of BRS channels 1 and 2/2A (e.g., integrated 
for downstream two-way broadband operations), whose operations are 
likely to transition to new channels in the restructured band at 
different times, we require the relocation of operations on both BRS 
channels 1 and 2/2A where the BRS licensee is using the same facility 
for both channels in order to provide service to customers.
    11. The Commission does not further expand the comparable 
facilities definition as the parties request (e.g., requiring only a 
wireless solution; adopting a definition used in the decisions in WT 
Docket 02-55 (collectively the ``800 MHz proceeding''); and including 
internal administrative costs of the incumbent) and rejects parties' 
suggestions that comparable facilities requires only a wireless 
solution. Given advances in technology, e.g., changing from analog to 
digital modulation and the flexibility provided by our existing 
relocation procedures to make incumbents whole, we believe that these 
differences should be taken into account when providing comparable 
facilities. In the 800 MHz proceeding, incumbents in the 800 MHz band 
were being relocated within the same band as part of an overall band 
reconfiguration process designed to resolve the interference concerns 
of public safety licensees in the band. Therefore, a comparable 
facilities definition based on equivalent capacity was the better 
approach in the 800 MHz proceeding, because, for example, the services, 
equipment, and propagation characteristics were not likely to change 
significantly in the newly reconfigured band. Further, the level of 
detail in the comparable facilities definition in the 800 MHz 
proceeding was necessary to ensure that the costs for relocation and 
reconfiguration were easy to compute and verify since these expenses 
were to be used to calculate the credit due to the U.S. Treasury at the 
end of the 800 MHz transition. In the instant case, BRS incumbents are 
to be relocated to a new band where, for example, the equipment and 
propagation characteristics are different, and BRS incumbents use 
various technologies to deploy their services. We therefore believe 
that a more flexible definition of comparable facilities is justified 
in this case and find that the factors we have identified as most 
important for determining comparability (i.e., throughput, reliability, 
operating costs, and now end user equipment) provide the degree of 
flexibility that will better serve the parties during negotiations. 
Finally, consistent with our Emerging Technologies policies, we will 
not require that new AWS licensees reimburse BRS incumbents for their 
internal costs for relocation because these costs are difficult to 
determine and verify.
    12. The Commission further notes that under our relocation policies 
only stations with primary status are entitled to relocation. Because 
secondary operations, by definition, cannot cause harmful interference 
to primary operations nor claim protection from harmful interference 
from primary operations at frequencies already assigned or assigned at 
a later date, new entrants are not required to relocate secondary 
operations. Because BRS stations licensed after 1992 to use the 2160-
2162 MHz band operate on a secondary basis a portion of BRS channel 2 
will have secondary status in some cases, and this portion would not be 
entitled to relocation under existing Emerging Technologies policies. 
BRS stations licensed after 1992 to use the remaining portion of BRS 
channel 2 (2156-2160 MHz) operate on a primary basis and thus, would be 
entitled to relocation. In this situation, we expect the parties will 
work together in negotiating appropriate compensation for the costs to 
relocate four megahertz of a six megahertz block of spectrum. We 
therefore adopt our relocation policies regarding stations with primary 
and secondary status for the BRS.
    13. Leasing. Some BRS licensees of channel(s) 1 and/or 2/2A 
currently lease their spectrum capacity to other commercial operators, 
and the Commission has determined that future leasing of BRS spectrum 
will be allowed under the Secondary Markets policy. In all leasing 
cases, the BRS licensee retains de jure control of the license and is 
the party entitled to negotiate for ``comparable facilities'' in the 
relocation band. The Commission concludes that the approach we proposed 
in the AWS Fifth Notice is consistent with the purpose of the 
``comparable facilities'' policy to provide new facilities in the 
relocation band so that the public continues to receive service, and 
disagrees with commenters who request additional protections for or 
requirements on the lessee. Disputes with respect to private leasing 
agreements between the licensee and lessee are best addressed using 
applicable contractual remedies outside the Commission's purview. While 
we recognize the benefit of including the lessee in negotiations for 
comparable facilities, we do not believe a requirement for 
participation is necessary, and thus conclude that, in

[[Page 29821]]

cases where the BRS licensees continue to lease their spectrum to third 
parties when they relocate to the 2.5 GHz band, the licensee may 
include the lessee in negotiations but lessees would not have a 
separate right of recovery--i.e., the new entrant would not have to 
reimburse both the licensee and lessee for ``comparable facilities.'' 
We also adopt our proposal to allow incumbent BRS licensees to rely on 
the throughput, reliability, and operating costs of facilities operated 
by a lessee in negotiating ``comparable facilities.'' BRS licensees may 
also use these same factors for determinations of ``comparable 
facilities'' during involuntary relocation, except that the BRS 
licensee may only rely on the facilities that are ``in use'' pursuant 
to 47 CFR 101.75 by the lessee at the time of relocation. Finally, in 
cases where the BRS licensee discontinues leasing arrangements prior to 
relocation, the lessee is not entitled to recover lost investment from 
the new AWS entrant.
    14. Licensee Eligibility. In the AWS Fifth Notice, the Commission 
proposed that a primary BRS licensee whose license, prior to 
relocation, is renewed or assigned, or whose control of the license is 
transferred, will continue to be eligible for relocation. The 
Commission also proposed that no new licenses would be issued in the 
2150-2160/62 MHz band if a grandfathered BRS license is cancelled or 
forfeited and does not automatically revert to the BRS licensee that 
holds the corresponding BTA license. The Commission adopts the 
proposals to apply the relocation policies to BRS incumbent primary 
licensees who seek comparable facilities at the time of relocation. Any 
incumbent licensee whose license is renewed before relocation would 
have the right to relocation. An assignment or transfer of control 
would not disqualify a BRS incumbent in the 2150-2160 MHz band from 
relocation eligibility unless, as a result of the assignment or 
transfer of control, the facility is rendered more expensive to 
relocate. In addition, if a grandfathered BRS license (i.e., authorized 
facilities operating with a 35-mile-radius PSA) is cancelled or 
forfeited, and the right to operate in that area has not automatically 
reverted to the BRS licensee that holds the corresponding BTA license, 
no new licenses would be issued for BTA service in the 2150-2160/62 MHz 
band. Finally, in the AWS Fifth Notice, the Commission did not propose, 
nor do we suggest here, that BRS licensees would be entitled to 
relocation compensation as a consequence of reallocating BRS spectrum 
for other services. We note, in particular, that the Emerging 
Technologies relocation policies were intended to prevent disruption of 
existing services and minimize the economic impact on licensees of 
those services. Thus, where authorized BRS licensees have not 
constructed facilities and are not operational, there is no need to 
prevent disruption to existing services. We therefore conclude that BRS 
licensees whose facilities have not been constructed and are in use per 
Sec.  101.75 of the Commission's rules as of the effective date of this 
Report and Order are not eligible for relocation.
    15. Consistent with our Emerging Technologies relocation policy and 
in order to provide some certainty to new AWS licensees on the scope of 
their relocation obligation, the Commission generally adopts the 
proposals for major modifications described in the AWS Fifth Notice. 
Specifically, we find that major modifications to BRS systems that are 
in use made by BRS licensees in the 2150-2160 MHz band after the 
effective date of this Report and Order will not be eligible for 
relocation. Further, major modifications and extensions to BRS systems 
that are in use, as discussed below, will be authorized on a secondary 
basis to AWS systems in the 2150-2160 MHz band after the effective date 
of this Report and Order. In addition, BRS facilities newly authorized 
in the 2150-2160 MHz band after the effective date of this Report and 
Order would not be eligible for relocation. Based on our review of the 
record, and consistent with Emerging Technologies principles, we 
classify the following as types of modifications that are major, and 
thus not eligible for relocation: (1) Additions of new transmit sites 
or base stations made after the effective date of this Report and 
Order; and (2) changes to existing facilities made after the effective 
date of this Report and Order that would increase the size or coverage 
of the service area or interference potential and that would also 
increase the throughput of an existing system (e.g., sector splits in 
the antenna system). However, we will allow BRS incumbents to make 
changes to already deployed facilities to fully utilize existing system 
throughput, i.e., to add customers, even if such changes would increase 
the size or coverage of the service area or interference potential, and 
not treat these changes as major modifications. Because relocation of 
incumbent facilities depends on the availability of spectrum in the 2.5 
GHz band, existing licensees must have some flexibility to continue to 
provide service in their communities, including adding new customers, 
until relocation occurs. On the other hand, new entrants should not be 
required to reimburse a potential competitor for the costs of its 
system expansion. All other modifications would be classified as major 
and their operations authorized on a secondary basis and thus not 
eligible for relocation. Where a BRS licensee who is otherwise eligible 
for relocation has modified its existing facilities in a manner that 
would be classified as ``major'' for purposes of relocation, that BRS 
licensee continues to maintain primary status (e.g., unless it is 
classified as secondary for other reasons or until the sunset date); 
the major modifications themselves are considered secondary and not 
eligible for relocation. Thus, in such cases, the AWS licensee is only 
required to provide comparable facilities for the portions of the 
system that are primary and eligible for relocation.
    16. Because the Commission has already identified relocation 
spectrum in the 2496-2690 MHz band (2.5 GHz band) for BRS licensees 
currently in the 2150-2160/62 MHz band (2.1 GHz band), the AWS Fifth 
Notice also sought comment on a proposal whereby the Commission would 
reassign 2.1 GHz BRS licensees, whose facilities have not been 
constructed and are not in use per Sec.  101.75 of the Commission's 
rules, to their corresponding frequency assignments in the 2.5 GHz band 
as part of the overall BRS transition. Specifically, the Commission 
proposed to modify the licenses of these 2.1 GHz BRS licensees to 
assign them 2.5 GHz spectrum in the same geographic areas covered by 
their licenses upon the effective date of the Report and Order in this 
proceeding. Under this proposal, no subscribers would be harmed by 
immediately reassigning these licensees to the 2.5 GHz band, consistent 
with our policy. Further, these BRS licensees could become proponents 
in the transition of the 2.5 GHz band and avoid delay in initiating new 
service (they would be limited in initiating or expanding service in 
the 2.1 GHz band under other proposals put forth in the AWS Fifth 
Notice), and new AWS entrants in the 2.1 GHz band could focus their 
efforts on relocating the remaining BRS operations and their 
subscribers, facilitating their ability to clear the band quickly and 
provide new service.
    17. Upon consideration of the record, the Commission does not 
mandate reassignment of BRS licensees who have no facilities 
constructed and in use as of the effective date of this Report and 
Order, but we will not preclude these BRS incumbents from voluntarily

[[Page 29822]]

seeking such reassignment from the Commission. Thus, these BRS 
licensees will not be forced to exchange their existing license in the 
2.1 GHz band for an updated license authorizing operation in the 2.5 
GHz band upon the effective date of this Report and Order because their 
corresponding channel assignments in the 2.5 GHz band may be 
unavailable for use pending the transition to the new band plan. We 
will instead afford these BRS licensees the flexibility to seek the 
reassignment of their licenses to their corresponding frequencies in 
the 2.5 GHz band at a time that is most convenient (e.g., when the 
transition for their geographic area is complete). However, as noted 
above, BRS licensees who have no facilities constructed and in use as 
of the effective date of this Report and Order are not entitled to 
relocation to comparable facilities, regardless of whether they 
initiated operations under an existing (2.1 GHz band) or reassigned 
(2.5 GHz band) license.
2. Negotiation Periods/Relocation Schedule
    18. Under the Emerging Technologies policies, there are two periods 
of negotiations--one voluntary and one mandatory--between new entrants 
and incumbents for the relocation of incumbent operations, followed by 
the involuntary relocation of incumbents by new entrants where no 
agreement is reached. In the AWS Fifth Notice, the Commission generally 
proposed to require that negotiations for relocation of BRS operations 
be conducted in accordance with our Emerging Technologies policies, 
except that the Commission proposed to forego a voluntary negotiation 
period and instead require only a mandatory negotiation period that 
must expire before an emerging technology licensee could proceed to 
request involuntary relocation. The Commission recognized that the new 
band where the BRS incumbents are to be relocated is undergoing its own 
transition process that may not be completed until at least 2008. In 
light of these considerations, the Commission proposed to forego a 
voluntary negotiation period and institute ``rolling'' mandatory 
negotiation periods (i.e., separate, individually triggered negotiation 
periods for each BRS licensee) of three years followed by the 
involuntary relocation of BRS incumbents. The Commission also proposed 
that the mandatory negotiation period would be triggered for each BRS 
licensee when an AWS licensee informs the BRS licensee in writing of 
its desire to negotiate. If no agreement is reached during 
negotiations, the Commission proposed that an AWS licensee may proceed 
to involuntary relocation of the incumbent. In such a case, the new AWS 
licensee must guarantee payment of all relocation expenses, and must 
construct, test, and deliver to the incumbent comparable replacement 
facilities consistent with Emerging Technologies procedures. The 
Commission noted that under Emerging Technologies principles, an AWS 
licensee would not be required to pay incumbents for internal resources 
devoted to the relocation process or for fees that cannot be 
legitimately tied to the provision of comparable facilities, because 
such expenses are difficult to determine and verify. Finally, the 
Commission sought comment on whether to apply a ``right of return'' 
policy to AWS/BRS relocation negotiations similar to rule 47 CFR 
101.75(d) (i.e., if after a 12 month trial period, the new facilities 
prove not to be comparable to the old facilities, the BRS licensee 
could return to the old frequency band or otherwise be relocated or 
reimbursed).
    19. Based on its review of the record, the Commission will continue 
to generally follow our Emerging Technologies policies for negotiations 
and adopt our proposal to forego a voluntary negotiation period and 
establish ``rolling'' mandatory negotiation periods (i.e., separate, 
individually triggered negotiation periods for each BRS licensee) of 
three years followed by an involuntary relocation period during which 
the AWS entrant may involuntarily relocate the BRS incumbents. During 
mandatory negotiations, the parties are afforded flexibility in the 
process except that an incumbent licensee may not refuse to negotiate 
and all parties are required to negotiate in good faith. Each mandatory 
negotiation period would be triggered for each BRS licensee when an AWS 
licensee informs the BRS licensee in writing of its desire to 
negotiate. The new 2.5 GHz band where the BRS incumbents are to be 
relocated is undergoing its own transition process that may not be 
completed for several years. Thus, we will allow the BRS licensees to 
suspend the running of the three year negotiation period for up to one 
year if the BRS licensee cannot be relocated to comparable facilities 
at the time the AWS licensee seeks entry into the incumbent's GSA, 
i.e., if the BRS licensee's spectrum in the 2.5 GHz band is not yet 
available because of the 2.5 GHz band transition. If no agreement is 
reached during negotiations, an AWS licensee may proceed to involuntary 
relocation of the incumbent. During involuntary relocation, the new AWS 
licensee must guarantee payment of all relocation expenses necessary to 
provide comparable replacement facilities. Consistent with the Emerging 
Technologies principles, an AWS licensee would not be required to pay 
incumbents for internal resources devoted to the relocation process or 
for fees that cannot be legitimately tied to the provision of 
comparable facilities, because such expenses are difficult to determine 
and verify. In addition, an AWS entrant must ensure that the BRS 
incumbent's spectrum in the 2.5 GHz band is available for the market at 
issue (or an alternate location, e.g., a temporary location in the 2.5 
GHz band, for the provision of comparable facilities) prior to 
relocating that incumbent. This approach is generally consistent with 
Emerging Technologies procedures for involuntary relocation, except 
that, because AWS entrants and BRS incumbents are potential 
competitors, we must include special provisions to protect the BRS 
licensees' legitimate commercial interests. Accordingly, BRS incumbents 
cannot be required to disclose subscriber location information so that 
AWS licensees would be able to construct, test, and deliver replacement 
facilities to the incumbent and will have to take a much more active 
role in the deployment of comparable facilities in an involuntary 
relocation than has typically been the case under previous applications 
of the Emerging Technologies policies. In order to ensure that all 
parties are acting in good faith while simultaneously protecting BRS 
licensees' legitimate commercial interests, we will permit AWS 
licensees to request that the BRS incumbent verify the accuracy of its 
subscriber counts by, for example, requesting a one-to-one return or 
exchange of existing end user equipment.
    20. Finally, the Commission finds that a ``right of return'' policy 
is appropriate. The ``right of return'' policy will apply to AWS/BRS 
involuntary relocations only--if one year after relocation, the new 
facilities prove not to be comparable to the old facilities, the AWS 
licensee must remedy the defects by reimbursement or pay to relocate 
the BRS licensee to its former frequency band or other comparable 
facility (until the sunset date).
    21. Sunset Date. In the AWS Fifth Notice, the Commission proposed 
to apply the sunset rule of 47 CFR 101.79 to BRS relocation 
negotiations. This sunset rule provides that new licensees are not 
required to pay relocation expenses after ten years following the

[[Page 29823]]

start of the negotiation period for relocation. The Commission also 
proposed that the ten year sunset date commence from the date the first 
AWS license is issued in the 2150-2160 MHz band. The Commission 
disagrees with commenters who argue that no sunset date should be 
applied or that a relocation deadline of either ten or fifteen years is 
more appropriate. Because the Emerging Technologies principles are 
intended to allow new licensees early entry into the band and are not 
designed as open-ended mechanisms for providing relocation compensation 
to displaced incumbents, it would be inconsistent with those principles 
to eliminate the sunset date. We continue to believe that the sunset 
date is a vital component of the Emerging Technologies relocation 
principles because it provides a measure of certainty for new 
technology licensees, while giving incumbents time to prepare for the 
eventuality of moving to another frequency band. Further, the unique 
circumstances, i.e., reconfiguring and transitioning the 800 MHz band 
to alleviate unacceptable interference to public safety operations in 
the band, that required setting a relocation deadline for clearing 
incumbent operations in the 800 MHz proceeding are not present here. 
However, as noted above, we recognize that the 2.5 GHz band, where the 
BRS incumbents are to be relocated, is undergoing its own transition 
process and that relocation of existing 2.5 GHz operations may not be 
completed for several years. Also, because portions of the spectrum in 
the 2150-2160/62 MHz band will be made available for AWS auction at 
different times, i.e., spectrum now occupied by part of BRS channel 1 
(2150-2155 MHz) will be licensed in an upcoming auction of the 2110-
2155 MHz band, while spectrum occupied by BRS channels 2 and 2A and the 
upper one megahertz of BRS channel 1 (2155-2160/62 MHz) will be 
licensed at a later date, the entry of AWS licensees into the entire 
band will occur at different times. To account for these unique 
circumstances, we believe that additional time before the AWS entrant's 
relocation obligation ends may be warranted. We therefore adopt a 
single sunset date of fifteen years, commencing from the date the first 
AWS license is issued in the 2150-2160 MHz band, after which new AWS 
licensees are not required to pay for BRS relocation expenses.
    22. Good Faith Requirement. The Commission expects the parties 
involved in the replacement of BRS equipment to negotiate in good 
faith, that is, each party will be required to provide information to 
the other that is reasonably necessary to facilitate the relocation 
process. Among the factors relevant to a good-faith determination are: 
(1) Whether the party responsible for paying the cost of band 
reconfiguration has made a bona fide offer to relocate the incumbent to 
comparable facilities; (2) the steps the parties have taken to 
determine the actual cost of relocation to comparable facilities; and 
(3) whether either party has unreasonably withheld information 
essential to the accurate estimation of relocation costs and procedures 
requested by the other party. The record generally supports a good 
faith requirement and we therefore adopt our proposal to apply the good 
faith guidelines of 47 CFR 101.73 to BRS negotiations. In addition, we 
note that our cost-sharing rules require the AWS relocator to obtain a 
third party appraisal of relocation costs, which, in turn, would 
require the appraiser to have access to the BRS incumbent's system 
prior to relocation. Accordingly, we will require that a BRS incumbent 
cooperate with an AWS licensee's request to provide access to the 
facilities to be relocated, other than subscribers' end user equipment, 
so that an independent third party can examine the system and prepare 
an appraisal of the costs to relocate the incumbent to comparable 
facilities.
3. Interference Issues/Technical Standards
    23. Under Sec.  24.237 of the Commission's rules, PCS licensees 
operating in the 1850-1990 MHz band and AWS licensees operating in the 
2110-2155 MHz band must, prior to commencing operations, perform 
certain engineering analyses to ensure that their proposed operations 
do not cause interference to incumbent fixed microwave services. Part 
of that evaluation calls for the use of Telecommunications Industry 
Association Telecommunications Systems Bulletin 10-F (TIA TSB 10-F) or 
its successor standard. In the AWS Fifth Notice, the Commission sought 
comment on whether a rule comparable to Sec.  24.237 in the 
Commission's rules should be developed that could be used to determine 
whether proposed AWS operations would cause interference to incumbent 
BRS systems operating in the 2150-2160 MHz band and, if so, what 
procedures and mechanisms such a rule should contain. As an initial 
matter, the Commission concludes that relocation zones are appropriate 
for assessing the interference potential between new co-channel AWS 
entrants' operations and existing BRS facilities. In addition to being 
supported by many commenters, the line-of-sight approach embodied in 
the relocation zone approach will draw on the established methodology 
that was formerly set out in Part 21 of our Rules, as well as previous 
Commission decisions regarding the BRS and EBS, and will provide an 
easy-to-implement calculation that will afford new AWS entrants some 
certainty in planning new systems. To the extent that a relocation zone 
may require an AWS entrant to relocate some BRS systems that would not 
receive actual harmful interference, we agree with those commenters who 
assert that the administrative ease realized by implementing the 
relocation zone's ``bright-line test'' will serve to promote the rapid 
deployment of new AWS operations by eliminating complex and time 
consuming site-based analyses, and outweighs any disadvantages 
associated with any over inclusiveness.
    24. To determine whether a proposed AWS base station will have line 
of sight to a BRS receive station hub, the Commission is requiring AWS 
entrants that propose to implement co-channel operations in the BRS 
band (i.e., AWS licensees using the upper five megahertz of channel 
block F--or the 2150-2155 MHz portion of the 2145-2155 MHz block, or 
the 2155-2162 MHz portion of the 2155-2175 MHz band) to use the 
methodology the Commission developed for licensees to employ when 
conducting interference studies from and to two-way MDS/ITFS systems. 
Where the AWS entrant has determined that its station falls within the 
relocation zone under this methodology, then the AWS entrant must first 
relocate the co-channel BRS system that consists of that hub and 
associated subscribers before the AWS entrant may begin operation. In 
the particular case of an incumbent BRS licensee that uses channel(s) 1 
and/or 2/2A for the delivery of video programming to subscribers, we 
recognize that the relocation zone approach will need to operate in a 
slightly different manner because potential interference from the AWS 
licensee would occur at the subscriber's location instead of at a BRS 
receive station hub. In order to provide interference protection to 
subscribers in a manner that does not require disclosure of sensitive 
customer data, and to recognize that these BRS licensees may add 
subscribers anywhere within their licensed GSA, the most appropriate 
method to ascertain whether interference could occur to BRS systems 
providing one-way video delivery in channels 1 and/or 2/2A is to 
determine whether the AWS base

[[Page 29824]]

station has line of sight to a co-channel BRS incumbent's GSA. To make 
this determination, we will require co-channel AWS entrants to use the 
methodology that was formerly codified in 47 CFR 21.902(f)(5) (2004) of 
the Commission's rules.
    25. Although the relocation zone approach is well suited for new 
entrants that propose to implement co-channel operations in the BRS 
band, the Commission concludes that simply using a line-of-sight 
methodology for determining the relocation obligations of adjacent 
channel (e.g., AWS licensees using the lower five megahertz of channel 
block F--or the 2145-2150 MHz portion of the 2145-2155 MHz block) and 
non-adjacent channel AWS licensees (e.g., AWS licensees using channel 
blocks A-E, from 2110-2145 MHz), is not appropriate. In this situation, 
such AWS operations will not pose a large enough potential for 
interference to BRS incumbent licensees to warrant an automatic 
relocation obligation without first determining whether harmful 
interference to BRS will actually occur. We specifically reject the 
contention that any AWS base station in the 2.1 GHz band that proposes 
to operate within line of sight of a centralized BRS channel 1 and/or 
2/2A receive station hub will always interfere with the BRS receive 
station hub and likewise do not believe that the potential for AWS 
intermodulation (i.e. interference caused when multiple signals from 
different frequency bands combine to create harmful interference in a 
particular frequency band--the band in which BRS operations are 
located, in this instance) or AWS cross-modulation (interference caused 
by the modulation of the carrier of a desired signal by an undesired 
signal) is so severe that either situation warrants special treatment. 
Accordingly, a line-of-sight test for AWS entrants operating outside 
the 2150-2160/62 MHz band would be much more over inclusive than the 
application of such a test to in-band operations, and we do not 
implement a relocation zone for AWS entrants in the 2110-2150 MHz band 
or in the 2160/62-2175 MHz band, as applicable. We emphasize, however, 
that if any AWS system--regardless of where within the 2110-2175 MHz 
band--causes actual and demonstrable interference to a BRS system, then 
the AWS licensee is responsible for taking the necessary steps to 
eliminate the harmful interference, up to and including relocation of 
the BRS licensee.

B. Relocation of FS in the 2160-2175 MHz Band

    26. In the AWS Fifth Notice, the Commission discussed how our 
Emerging Technologies relocation principles have been applied to past 
relocation decisions for AWS bands, and sought comment on the 
appropriate relocation procedures to adopt for FS incumbents in the 
2160-2175 MHz band. In the AWS Second Report and Order in ET Docket 00-
258 (``AWS Second R&O''), 66 FR 47618, September 13, 2001, the 
Commission applied a modified version of these Emerging Technologies 
relocation procedures to the 2110-2150 MHz band. Under these 
procedures, the Commission eliminated the voluntary negotiation period 
for relocation of FS incumbents by MSS in the 2165-2200 MHz band. In 
addition, the Commission decided that a single mandatory negotiation 
period for the band would be triggered when the first MSS licensee 
informs, in writing, the first FS incumbent of its desire to negotiate. 
More recently, in the AWS Sixth Report and Order in ET Docket 00-258, 
69 FR 62615, October 27, 2004, the Commission concluded that, 
consistent with its decision in the AWS Second R&O, it would be 
appropriate to apply the same procedures to the relocation of FS by AWS 
licensees in the 2175-2180 MHz paired band.
    27. The Commission's relocation policies were first adopted to 
promote the rapid introduction of new technologies into bands hosting 
incumbent FS licensees. Thus, we continue to believe, as a general 
matter, that the Emerging Technologies relocation procedures are 
particularly well suited for this band. The Commission's review of the 
historic and current applications of our relocation procedures leads us 
to adopt the following: we will forgo the voluntary negotiation period 
and instead adopt a mandatory negotiation period to be followed by the 
right of the AWS licensee to trigger involuntary relocation procedures. 
We also adopt, as proposed, a ten-year sunset period for the 2160-2175 
MHz band that will be triggered when the first AWS licensee is issued 
in the band. The sunset date is vital for establishing a date certain 
by which incumbent operations become secondary in the band, and the 
date the first license is issued will be both easy to determine and 
well known among licensees and incumbents in the band.
    28. The Commission also adopts ``rolling'' negotiation periods, as 
proposed in the AWS Fifth Notice. Under this approach, a mandatory 
negotiation period will be triggered when an AWS licensee informs a FS 
licensee, in writing, of its desire to negotiate for the relocation of 
a specific FS facility. The result will be a series of independent 
mandatory negotiation periods, each specific to individual incumbent FS 
facilities. We conclude that this approach best serves both incumbent 
licensees and new AWS entrants, and is consistent with the process that 
was successfully employed for the relocation of FS incumbents by PCS 
entrants. Because, under this approach, a mandatory negotiation period 
could be triggered such that it would still be in effect at the sunset 
date, we further clarify that the sunset date shall supersede and 
terminate any remaining mandatory negotiation period that had not been 
triggered or had not yet run its course. We similarly modify our 
relocation procedures for the 2110-2150 MHz and 2175-2180 MHz bands to 
establish individually triggered mandatory negotiation periods and to 
modify the sunset date to be ten years after the first AWS license is 
issued in each band, because doing so promotes harmonization of FS 
relocation procedures among the various AWS designated bands.
    29. The Commission adopts its proposal to apply the most current 
Emerging Technologies relocation procedures to part 22 licensees, and 
will modify part 22 to align the relocation procedures in part 101 to 
the AWS relocation of part 22 FS licensees in the 2110-2130 MHz and 
2160-2180 MHz bands. All FS licenses operating in reallocated bands, 
regardless of whether they are licensed under part 22 or part 101, will 
remain subject to the applicable relocation procedures in effect for 
the band, including the sunset date at which existing operations become 
secondary to new entrants. We also note that, pursuant to Sec.  
553(b)(B) of the Administrative Procedure Act, we are amending our 
relocation rules for FS licensees to delete references to outdated 
requirements. The decision to set forth the appropriate relocation 
procedures that new AWS entrants will follow when relocating FS 
incumbents in the 2160-2175 MHz band does not substitute for the 
establishment of service rules for the band (or a larger spectrum block 
that encompasses this band). We continue to anticipate the issuance of 
a separate Notice of Proposed Rulemaking that will examine specific 
licensing and service rules that will be applicable to new AWS entrants 
in the band.

C. Cost Sharing

    30. In 1996, the Commission adopted a plan to allocate cost-sharing

[[Page 29825]]

obligations stemming from the relocation of incumbent FS facilities 
then operating in the 1850-1990 MHz band (1.9 GHz band) by new 
broadband PCS licensees. This cost-sharing regime created a process by 
which PCS entities that incurred costs for relocating microwave links 
could receive reimbursement for a portion of those costs from other PCS 
entities that also benefit from the spectrum clearance. In a series of 
decisions in WT Docket 95-157 (collectively, the ``Microwave Cost 
Sharing proceeding''), the Commission stated that the adoption of a 
cost-sharing regime serves the public interest because it (1) 
Distributes relocation costs more equitably among the beneficiaries of 
the relocation; (2) encourages the simultaneous relocation of multi-
link communications systems; and (3) accelerates the relocation 
process, promoting more rapid deployment of new services.
1. Relocation of Incumbent FS Licensees in the 2110-2150 MHz and 2160-
2200 MHz Bands
    31. Currently, FS incumbents operate microwave links in the 2110-
2150 MHz and 2160-2200 MHz bands, mostly composed of paired channels in 
the lower and upper bands (i.e., 2110-2130 MHz with 2160-2180 MHz and 
2130-2150 MHz with 2180-2200 MHz). Section 101.82 of the Commission's 
part 101 relocation rules provides that when a new licensee in either 
of these bands relocates an incumbent paired FS link with one path in 
the 2110-2150 MHz band and the paired path in the 2160-2200 MHz band, 
the new licensee is entitled to reimbursement of fifty percent of its 
relocation costs from any subsequently entering new licensee which 
would have been required to relocate the same FS link, subject to a 
monetary ``cap.'' The AWS Fifth NPRM explained that this rule applied 
to both new AWS licensees in the 2110-2150 MHz and 2160-2180 MHz bands, 
as well as to MSS licensees in the 2180-2200 MHz band.
a. Cost Sharing Between AWS Licensees
    32. In the Notice of Proposed Rulemaking in WT Docket No. 04-356 
(``AWS-2 Service Rules NPRM''), 69 FR 63489, November 2, 2004, the 
Commission sought comment on whether it should adopt formal procedures 
for apportioning relocation costs among multiple AWS licensees in the 
2110-2150 MHz and 2175-2180 MHz bands and, in particular, whether it 
should apply the cost-sharing rules in Part 24 that were used by new 
PCS licensees when they relocated incumbent FS links in the 1850-1990 
MHz band. In the AWS Fifth NPRM, the Commission sought comment on the 
same issues in the 2160-2175 MHz band and whether AWS licensees in the 
2160-2175 MHz band should be subject to the same cost-sharing regime as 
it adopts to govern the relocation of FS incumbents in the 2110-2150 
MHz and 2175-2180 MHz bands. Under the part 24 cost-sharing plan, new 
entrants that incurred costs relocating an FS link were eligible to 
receive reimbursement from other entrants that also benefited from that 
relocation. Relocators could submit their reimbursement claims to one 
of the private not-for-profit clearinghouses designated by the Wireless 
Telecommunications Bureau (``WTB'') to administer the plan. 
Specifically, new entrants filing a prior coordination notice (PCN) 
were also required to submit their PCN to the clearinghouse(s) before 
beginning operations. After receiving the PCN, a clearinghouse with a 
reimbursement claim on file determined whether the new entrant 
benefited from the relevant relocation using a Proximity Threshold 
Test. Under the Proximity Threshold Test, a new entrant triggered cost-
sharing obligations for a microwave link if all or part of the 
microwave link was initially co-channel with the PCS band(s) of any PCS 
entrant, a PCS relocator had paid to relocate the link, and the new PCS 
entrant was prepared to start operating a base station within a 
specified geographic distance of the relocated link. The clearinghouse 
then used the cost-sharing formula specified in Sec.  24.243 of the 
Commission's Rules to calculate the amount of the beneficiary's 
reimbursement obligation. This amount was subject to a cap of $250,000 
per relocated link, plus $150,000 if a new or modified tower was 
required. The beneficiary was required to pay reimbursement within 30 
days of notification, with an equal share of the total going to each 
entrant that previously contributed to the relocation. Payment 
obligations and reimbursement rights under the part 24 cost-sharing 
plan can be superseded by a privately negotiated cost-sharing 
arrangement between licensees. Disputes over cost-sharing obligations 
under the rules were addressed, in the first instance, by the 
clearinghouse. If the clearinghouse was unable to resolve the dispute, 
parties were encouraged to pursue alternative dispute resolution (ADR) 
alternatives such as binding arbitration.
    33. Based on the record, the Commission concludes that it will 
apply the part 24 cost-sharing rules, as modified, to the relocation of 
FS incumbents by AWS entrants in the 2.1 GHz band. Doing so will 
accelerate the relocation process and promote rapid deployment of new 
advanced wireless services in the 2.1 GHz band. Adoption of the part 24 
cost-sharing rules, with minor modifications, serves the public 
interest because it will distribute relocation costs more equitably 
among the beneficiaries of the relocation, encourage the simultaneous 
relocation of multi-link communications systems, and accelerate the 
relocation process, thereby promoting more rapid deployment of new 
services. We also incorporate the part 24 cost-sharing provisions for 
voluntary self-relocating FS incumbents to obtain reimbursement from 
those AWS licensees benefiting from the self-relocation. Incumbent 
participation will provide FS incumbents in the 2.1 GHz band with the 
flexibility to relocate themselves and the right to obtain 
reimbursement of their relocation costs, adjusted by depreciation, up 
to the reimbursement cap, from new AWS entrants in the band. We also 
find that incumbent participation will accelerate the relocation 
process by promoting system wide relocations and result in faster 
clearing of the 2.1 GHz band, thereby expediting the deployment of new 
advanced wireless services to the public. Therefore, we require AWS 
licensees in the 2.1 GHz band to reimburse FS incumbents that 
voluntarily self-relocate from the 2110-2150 MHz and 2160-2200 MHz 
bands and AWS licensees will be entitled to pro rata cost sharing from 
other AWS licensees that also benefited from the self-relocation. 
Accordingly, subject to the clarifications and modifications explained 
below, we adopt rules based on the formal cost-sharing procedures 
codified in part 24 of our rules to apportion relocation costs among 
AWS licensees in the 2110-2150 MHz, 2160-2175 MHz, and 2175-2180 MHz 
bands.
    34. The Commission finds that the record in this proceeding 
warrants certain modifications to the part 24 cost-sharing plan to help 
distribute cost-sharing obligations equitably among the beneficiaries 
of the relocation and also encourage and accelerate the relocation 
process. For FS incumbents that elect to self-relocate their paired 
channels in the 2130-2150 MHz and 2180-2200 MHz bands (with AWS in the 
lower band and MSS in the upper band), we will impose cost-sharing 
obligations on AWS licensees but not on MSS operators. Where a 
voluntarily relocating microwave incumbent relocates a paired microwave 
link with paths in the 2130-2150 MHz and 2180-2200 MHz bands, it is 
entitled to partial reimbursement

[[Page 29826]]

from the first AWS beneficiary, equal to fifty percent of its actual 
costs for relocating the paired link, or half of the reimbursement cap, 
whichever is less. This amount is subject to depreciation. For purposes 
of applying the cost-sharing formula relative to other AWS licensees 
that benefit from the self-relocation, the fifty percent attributable 
to the AWS entrant shall be treated as the entire cost of the link 
relocation, and depreciation shall run from the date on which the 
clearinghouse issues the notice of an obligation to reimburse the 
voluntarily relocating microwave incumbent.
    35. The Commission declines to adopt commenters' suggestion that we 
eliminate in its entirety the Part 24 requirement that a relocator or 
self-relocating microwave incumbent file documentation of its 
relocation agreement or discontinuance of service to the clearinghouse. 
We do require AWS relocators in the 2.1 GHz band to file their 
reimbursement requests with the clearinghouse within 30 calendar days 
of the date the relocator signs a relocation agreement with an 
incumbent. Consistent with the Part 24 approach of imposing the same 
obligations on self-relocators seeking reimbursement that apply to 
relocators, we will also require self-relocating microwave incumbents 
in the 2.1 GHz band to file their reimbursement requests with the 
clearinghouse within 30 calendar days of the date that they submit 
their notice of service discontinuance with the Commission.
    36. All AWS licensees in the 2.1 GHz band that are constructing a 
new site or modifying an existing site will have to file site-specific 
data with the clearinghouse prior to initiating operations for a new or 
modified site. The site data must provide a detailed description of the 
proposed site's spectral frequency use and geographic location. Those 
entities will have a continuing duty to maintain the accuracy of the 
data on file with the clearinghouse. Utilizing the site-specific data 
submitted by AWS licensees, the clearinghouse determines the cost-
sharing obligations of each AWS entrant by applying the Proximity 
Threshold Test. We find that the presence of an AWS entrant's site 
within the Proximity Threshold Box, regardless of whether it predates 
or postdates relocation of the incumbent, and regardless of the 
potential for actual interference, will trigger a cost-sharing 
obligation. Accordingly, any AWS entrant that engineers around the FS 
incumbent will trigger a cost-sharing obligation once relocation of the 
FS incumbent occurs. The Proximity Threshold Test is a bright-line test 
that does not require extensive engineering studies or analyses, and it 
yields consistent, predictable results by eliminating the variations--
and thus disputes--which can be associated with the use of interference 
standards such as the TIA TSB 10-F. The use of such a bright-line test 
in this context will expedite the relocation process by facilitating 
cost-sharing, minimizing the possibility of disputes that may arise 
through the use of other standards or tests, and encouraging new 
entrants to relocate incumbent licensees in the first instance.
    37. The Commission adopts a rule that precludes entrants that have 
triggered a cost-sharing obligation, pursuant to the rules adopted 
herein, from avoiding that obligation by deconstructing or modifying 
their facilities. We find that such a policy will promote the goals of 
this proceeding and encourage the relocation of incumbents. We do not 
find, however, that the record in this proceeding demonstrates a need 
to specifically incorporate the phrase ``one trigger--one license'' 
into the triggering language of Sec.  24.243 of the Commission's Rules. 
The rule already explicitly states that the pro rata reimbursement 
formula is based on the number of entities that would have interfered 
with the link and we do not find that further clarification is 
required.
    38. Consistent with precedent, the Commission establishes that the 
cost-sharing plans will sunset on the date on which the relocation 
obligation for the subject band terminates. The sunset dates for the 
2110-2150 MHz, 2160-2175 MHz, 2175-2180 MHz bands may vary among the 
bands, but by establishing sunset dates for cost sharing purposes that 
are commensurate with the sunset date for AWS relocation obligations in 
each band, the Commission appropriately balances the interests of all 
affected parties and ensures the equitable distribution of costs among 
those entrants benefiting from the relocations. AWS entrants that 
trigger a cost-sharing obligation prior to the sunset date must satisfy 
their payment obligation in full.
    39. Under part 24, WTB has delegated authority to assign the 
administration of the cost-sharing rules to one or more private not-
for-profit clearinghouses. As the Commission noted in the AWS Fifth 
NPRM, management of the part 24 cost-sharing rules by third-party 
clearinghouses has been highly successful. The Commission therefore 
adopts the part 24 clearinghouse rules and delegates to WTB the 
authority to select one or more entities to create and administer a 
neutral, not-for-profit clearinghouse to administer the cost-sharing 
plan for the FS incumbents in the 2.1 GHz band. The selection criteria 
will be established by WTB. WTB shall issue a Public Notice announcing 
the criteria and soliciting proposals from qualified parties. Once WTB 
is in receipt of such proposals, and the opportunity for public comment 
on such proposals has elapsed, WTB will make its selection. When WTB 
designates an administrator for the cost-sharing plan, it shall 
announce the effective date of the cost-sharing rules. We decline TMI/
TerreStar's suggestion to delegate the task of selecting a 
clearinghouse(s) jointly to WTB and the International Bureau. Our 
clearinghouse decisions today will impose mandatory requirements only 
on terrestrial operations and we believe that delegating authority to 
one bureau will promote consistency and uniformity.
    40. The Commission continues to require participants in the cost-
sharing plan to submit their disputes to the clearinghouse for 
resolution in the first instance. Where parties are unable to resolve 
their issues before the clearinghouse, parties are encouraged to use 
expedited ADR procedures, such as binding arbitration, mediation, or 
other ADR techniques. We decline, however, to institute the procedures 
suggested by some commenting parties that would permit the 
clearinghouse to refer requests for declaratory rulings and policy 
interpretations to the Commission for expedited consideration because 
we are not convinced that a special procedure is warranted. We do, 
however, agree with PCIA and T-Mobile that a clearinghouse should not 
be required to maintain all documentary evidence. Except for the 
independent third party appraisal of the compensable relocation costs 
for a voluntarily relocating microwave incumbent and documentation of 
the relocation agreement or discontinuance of service required for a 
relocator or self-relocator's reimbursement claim, both of which must 
be submitted in their entirety, we will require participants in the 
cost-sharing plan to only provide the uniform cost data requested by 
the clearinghouse subject to the continuing requirements that 
relocators and self-relocators maintain documentation of cost-related 
issues until the sunset date and provide such documentation, upon 
request, to the clearinghouse, the Commission, or entrants that trigger 
a cost-sharing obligation. In addition, we will also require that 
parties of interest contesting the clearinghouse's

[[Page 29827]]

determination of specific cost-sharing obligations must provide 
evidentiary support to demonstrate that their calculation is reasonable 
and made in good faith. Specifically, these parties are expected to 
exercise due diligence to obtain the information necessary to prepare 
an independent estimate of the relocation costs in question and to file 
the independent estimate and supporting documentation with the 
clearinghouse. New entrants and incumbent licensees are expected to act 
in good faith in all matters relating to the cost-sharing process 
herein established. The Commission declines to adopt a definition of 
what constitutes ``good faith'' in the context of cost sharing. We find 
that the question of whether a particular party was acting in good 
faith is best addressed on a case-by-case basis.
b. Cost Sharing Triggers and Clearinghouse for AWS, MSS/ATC
    41. Mobile-Satellite Service (MSS) is allocated to the 2180-2200 
MHz band. FS links in this band are paired with FS links in the 2130-
2150 MHz band, which is designated for AWS. Cost sharing between MSS 
and AWS licensees in these paired bands is governed by section 101.82. 
This rule provides that when a new licensee in either of these bands 
relocates an incumbent paired FS link with one path in one band and the 
paired path in the other band, the new licensee is entitled to 
reimbursement of fifty percent of its relocation costs (i.e., the total 
cost of relocating both paths) subject to a monetary ``cap,'' from any 
subsequently entering new licensee that would have been required to 
relocate the same FS link. The Commission adopted relocation rules for 
MSS that recognize the unique characteristics of a satellite service. 
For example, unlike a new terrestrial entrant such as AWS that can 
clear the band on a link-by-link basis, MSS (space-to-Earth) must clear 
all incumbent FS operations in the 2180-2200 MHz band within the 
satellite service area if interference will occur. Thus, the relocation 
obligations and cost sharing among MSS new entrants in the 2180-2200 
MHz are relatively straightforward and can function without a 
clearinghouse or formal cost-sharing procedures.
    42. In the AWS Fifth NPRM, the Commission noted that Sec.  101.82 
establishes a cost-sharing obligation between MSS and AWS that is 
reasonable and relatively easy to implement, and because it does not 
depreciate cost-sharing obligations, it provides MSS licensees with 
additional assurance of cost recovery. Furthermore, the Commission 
stated that it did not wish to change the relocation and cost-sharing 
rules applicable to MSS, because MSS licensees are currently in the 
midst of the implementation and relocation process. The Commission also 
sought comment on whether MSS entrants entitled to reimbursement under 
Section 101.82 should submit their reimbursement claims to an AWS 
clearinghouse, including any procedures adopted for filing such claims. 
The Commission believed that this approach would relieve MSS licensees 
of the burden of identifying the AWS licensees who would be obligated 
to pay relocation costs, and sought comment on this proposal.
    43. Based on the record before us, the Commission concludes that 
MSS operators will have different cost-sharing obligations for 
microwave links that are relocated for space-to-Earth downlink 
operations than for microwave links that are relocated for MSS ATC 
operations. As noted above, we had previously adopted rules (see 
Section 101.82) for MSS cost sharing based on an interference criteria 
(TIA Technical Services Bulletin 86 (TIA TSB 86)), and the AWS Fifth 
NPRM did not propose to change these relocation and cost-sharing 
obligations because the MSS operators were already in the midst of 
implementing these processes. The AWS Fifth NPRM did, however, seek 
comment on whether MSS operators should use a clearinghouse for cost 
sharing. The relocation and cost-sharing obligations triggered by 
space-to-Earth links is relatively straightforward to implement because 
the MSS operator will relocate all incumbent microwave operations 
within the satellite service area before it begins operations if 
interference will occur. The MSS operator and the AWS licensees can 
therefore easily identify the parties with whom they will share costs. 
We thus conclude here that we will not require MSS operators to use a 
clearinghouse for microwave links relocated for space-to-Earth 
downlinks and we will continue to apply the relocation and cost-sharing 
obligations provided in Sec.  101.82 to MSS operators that relocate 
microwave links for space-to-Earth downlink operations. We further 
conclude that MSS operators that relocate microwave links for space-to-
Earth downlink operations should have the right, but not the 
obligation, to submit their claims for reimbursement (from AWS 
licensees) to the AWS clearinghouse pursuant to the procedures we 
adopted. We clarify that if an MSS operator submits a claim to the 
clearinghouse, the interference criteria for determining cost-sharing 
obligations for an MSS space-to-Earth downlink is TIA TSB 86.
    44. The Commission finds that, since Sec.  101.82 is silent as to 
reimbursement for microwave links relocated for ATC base stations, it 
is appropriate to adopt a specific rule for ATC reimbursement for 
relocated terrestrial microwave facilities. Based on the record before 
us, we conclude that MSS operators that relocate microwave links for 
ATC operations will be required to use a clearinghouse for cost sharing 
and thus will have the same cost-sharing obligations as AWS entrants. 
ATC operations will trigger incumbent microwave relocations on a link-
by-link basis in the same way as AWS operations. The Commission 
previously determined that cost sharing would be determined using the 
relevant interference modeling and that TIA TSB 10-F, or its successor 
standard, is an appropriate standard for purposes of triggering 
relocation obligations by new terrestrial (ATC or AWS) entrants in the 
2 GHz band. The Commission also noted that procedures other than TIA 
TSB 10-F that follow generally acceptable good engineering practices 
are also acceptable. We conclude that the Proximity Threshold Test is 
an acceptable alternative to TIA TSB 10-F to determine interference for 
purposes of AWS-to-ATC and ATC-to-AWS cost sharing, and we adopt its 
use here as well.
    45. Furthermore, the Commission has specifically concluded that MSS 
terrestrial operations are technically similar to PCS and that TIA TSB 
10-F is a relevant standard for determining whether a new ATC base 
station must relocate an incumbent microwave operation. Given that the 
Proximity Threshold Test used for PCS, and now AWS cost-sharing 
obligations, is an acceptable alternative to TIA TSB 10-F to determine 
interference for purposes of cost sharing, we find it reasonable to 
also use this test for triggering ATC to AWS cost-sharing obligations. 
Under this approach, reimbursement is only triggered if all or part of 
the relocated microwave link was initially co-channel with the licensed 
band(s) of the AWS or ATC operator. The Proximity Threshold Test will 
be easier to administer than TIA TSB 10-F and does not require 
extensive engineering studies or analyses, and it yields consistent, 
predictable results by eliminating the variations which can be 
associated with the use of TIA TSB 10-F.
    46. Given that AWS and ATC are terrestrial operations, the 
Commission agrees that MSS participation in the clearinghouse process 
should be

[[Page 29828]]

mandatory for ATC operations so that the clearinghouse can accurately 
track cost-sharing obligations as they relate to all terrestrial 
operations. Thus, MSS operators must file notices of operation with the 
clearinghouse for all ATC base stations following the same rules and 
procedures that that will govern all AWS base stations. On the other 
hand, we find that the record before us provides no technical basis for 
adopting PCIA's proposal that, when MSS initiates space-to-Earth 
operations, cost sharing should be triggered nationwide automatically 
(rather than based on an interference analysis) for all previously 
relocated co-channel links. Moreover, the Commission previously 
concluded that TIA TSB 86 is the appropriate standard for purposes of 
triggering both relocation and cost-sharing obligations of new MSS 
downlink (space-to-Earth) operations.
    47. Under Sec.  101.79, MSS is not required to pay relocation costs 
after the relocation rules sunset, i.e., ten years after the mandatory 
negotiation period began for MSS/ATC licensees in this service. For 
MSS/ATC, the relocation sunset date will be December 8, 2013. Under 
part 101, new cost-sharing obligations under Sec.  101.82 sunset along 
with the relocation sunset. Nonetheless, TMI/TerreStar's concern that 
any clearinghouse-based reimbursement option should be available until 
at least December 31, 2014, appears to be satisfied because, the AWS 
cost-sharing obligation sunset will not occur until after 2015.
    48. The Commission declines the suggestion to impose an obligation 
on MSS to share costs with self-relocating FS incumbents because the 
proposal is beyond the scope of the AWS Fifth NPRM. Similarly, we 
decline the suggestion to adopt part 24 depreciation for AWS/MSS cost 
sharing both because it beyond the scope of the AWS Fifth NPRM and 
because the Commission concluded in 2000 that the part 24 amortization 
formula, whereby the amount of reimbursement owed by later entrants 
diminishes over time, is irrelevant to AWS/MSS cost sharing. The record 
before us presents no basis for reversing this earlier conclusion. 
Thus, as noted in the AWS Fifth NPRM, the part 24 plan formula, e.g., 
depreciation, will not govern reimbursement due to an MSS licensee who 
requests reimbursement from an MSS or AWS licensee, or to reimbursement 
due to an AWS licensee who requests reimbursement from an MSS licensee 
under Sec.  101.82. If an AWS licensee reimburses an MSS licensee under 
Sec.  101.82, this sum shall be treated as the entire actual cost of 
the link relocation for purposes of applying the cost-sharing formula 
relative to other AWS licensees that benefit. In such instances, the 
AWS licensee must register the link with a clearinghouse within 30 
calendar days of making the payment to the MSS operator. The suggestion 
to require MSS/ATC to coordinate with FS incumbents is similarly beyond 
the scope of the AWS Fifth NPRM, which focused on whether MSS should 
participate in the terrestrial clearinghouse. The AWS Fifth NPRM 
expressly declined to revisit the MSS relocation and cost-sharing 
matters decided between 2000 and 2003 and directly stated that new MSS 
licensees would continue to follow the cost-sharing approach set forth 
in Sec.  101.82. Comsearch's point that it is no longer a certainty 
that MSS will begin operations before AWS is well taken. Nonetheless, 
as noted in the AWS Fifth NPRM, the relocation process adopted for MSS 
is already underway. In this connection, we note that the mandatory 
negotiation period for non-public safety and public safety incumbents 
ended on December 8, 2004, and December 8, 2005, respectively. 
Therefore, because these additional suggestions are beyond the scope of 
the AWS Fifth NPRM and address issues already decided in prior 
Commission decisions, we decline to adopt these requests.
2. Relocation of Incumbent BRS Licensees in the 2150-2160/62 MHz Band
    49. In the AWS Fifth NPRM, the Commission stated that there may be 
instances where an AWS entrant relocates more BRS facilities than an 
interference analysis would indicate was technically necessary. The 
Commission noted, for example, that an AWS entrant might be required to 
relocate facilities outside its own service area to comply with the 
comparable facilities requirement. In that event, a subsequent co-
channel AWS entrant in an adjacent geographic area might also benefit 
from the relocation. The Commission noted, in addition, that the 
relocation of a single BRS facility might benefit more than one AWS 
entrant. The Commission therefore sought comment on whether it should 
require AWS licensees who benefit from an earlier AWS licensee's 
relocation of a BRS incumbent in the 2150-2160/62 MHz band to share in 
the cost of that relocation. In particular, the Commission sought 
comment on what criteria could be used to identify whether a subsequent 
AWS licensee has an obligation to share the cost of relocating a BRS 
incumbent and how costs should be apportioned among new entrants. The 
Commission further sought comment on whether cost-sharing obligations 
should be subject to a specific cap, whether it should adopt formal 
cost-sharing procedures such as the part 24 cost-sharing plan, and 
whether a clearinghouse should be assigned to administer the process.
    50. The Commission finds that cost sharing will provide for a more 
equitable relocation process by spreading the costs of the relocation 
among the AWS licensees that benefit. In addition, cost sharing should 
accelerate the relocation process by encouraging new entrants to 
relocate systems themselves rather than wait for another entrant to do 
so. We therefore conclude that we should establish cost-sharing 
obligations for AWS licensees that benefit from another AWS licensee's 
relocation of a BRS incumbent from the 2150-2160/62 MHz band. We 
further conclude that the part 24 cost-sharing rules provide an 
appropriate framework for BRS relocation cost sharing. The part 24 
cost-sharing rules and procedures have proven effective in sharing the 
costs of FS relocation. Admittedly, as the Commission noted in the AWS 
Fifth NPRM, applying the PCS cost-sharing regime to BRS will require 
significant changes to account for the differences between BRS services 
and fixed point-to-point services. We find, however, that in most 
respects, the PCS cost-sharing regime can be applied to BRS. We further 
find that the PCS cost-sharing system provides the best balance of 
competing concerns, such as precision and ease of administration. 
Adopting a regime based on the PCS cost-sharing rules will also benefit 
AWS licensees to the extent that they already have a familiarity with 
the system. In addition, we anticipate, that an administrator of the 
cost-sharing system can achieve efficiencies by jointly administering 
BRS cost sharing with the very similar regime we have established for 
relocation of FS incumbents. Therefore our implementation of a BRS 
cost-sharing regime is guided generally by the PCS cost-sharing rules 
and departs from those rules only where a different approach is 
justified.
    51. Clearinghouse. The Commission agrees with those commenters who 
recommend using a clearinghouse to administer any cost-sharing rules 
the Commission may adopt in the relocation of BRS incumbents from the 
2150-2160/62 MHz band. We therefore delegate to WTB the authority to 
select one or more entities to create and administer a neutral, not-
for-profit clearinghouse. Selection shall be based on criteria 
established by WTB. WTB shall publicly

[[Page 29829]]

announce the criteria and solicit proposals from qualified parties. 
Once such proposals have been received, and an opportunity has elapsed 
for public comment on them, WTB shall make its selection. When WTB 
selects an administrator, it shall announce the effective date of the 
cost-sharing rules.
    52. Triggering a Reimbursement Obligation. The Commission 
establishes the following rules for identifying when an AWS licensee 
entering a market triggers a cost-sharing obligation in connection with 
the prior relocation of a BRS system in the 2150-2160/62 MHz band. 
First, we limit cost-sharing obligations to those AWS entrants licensed 
in spectrum that is co-channel, at least in part, with the bands 
previously used by the relocated BRS system (i.e., those AWS entrants 
who operate using licenses that overlap with the 2150-2160/62 MHz 
band). We note that the Commission similarly limited the PCS cost-
sharing obligations to new entrants that would have caused co-channel 
interference to the incumbent, and we agree with U.S. Cellular that 
excluding other AWS channels [non-co-channel] for cost sharing purposes 
``greatly simplifies the cost-sharing plan and eliminates many possible 
disagreements over whether an AWS system would have caused or 
experienced adjacent channel interference.''
    53. When an AWS entrant turns on a fixed base station using a 
license that overlaps spectrum in the 2150-2160/62 MHz band previously 
used by a relocated BRS system, a cost obligation will be triggered if 
the base station transmitting antenna is determined to have a line-of-
sight path with the receiving antenna of the relocated BRS system hub. 
For BRS systems using the 2150-2160/62 MHz band exclusively to provide 
one-way transmission to subscribers, i.e., delivery of video 
programming, we employ a different line-of-sight test, as we have above 
in the relocation process, to account for the fact that interference to 
the BRS system would occur at the subscriber's end user equipment. For 
these systems, a cost obligation will be triggered if the AWS entrant 
has line of sight to the BRS incumbent's GSA.
    54. The Commission chooses the line-of-sight test described as the 
test for triggering cost-sharing obligations for a number of reasons. 
As an initial matter, line of sight provides an appropriate test for 
determining whether an AWS entrant in the 2150-2160/62 MHz band must 
relocate a co-channel BRS incumbent. It is therefore also an 
appropriate means of determining whether other AWS entrants would have 
been required to relocate the system, and have thus benefited from the 
relocation. As a `bright line' test, it also satisfies the requests of 
several commenters for clarity and certainty in the cost-sharing 
process. We also expect that the administrative burden of applying the 
line-of-sight test to identify beneficiaries of a relocation and the 
potential for disputes over its application will be limited for several 
reasons. First, because we have excluded licensees operating solely in 
adjacent and non-adjacent spectrum from cost-sharing obligations, only 
co-channel interference need be considered. Second, there are a 
relatively limited number of BRS systems and thus few systems for whom 
potential beneficiaries will need to be determined. Third, because the 
2145-2155 MHz block will be licensed on a REAG basis, which is the 
largest geographic area license in the AWS spectrum, we expect that 
only one 2145-2155 MHz licensee would typically cause interference to a 
BRS system, and thus that there will be few instances of cost sharing 
between 2145-2155 MHz licensees.
    55. Obtaining Reimbursement Rights. As in the PCS system, in order 
to receive reimbursement from licensees that benefit from a relocation, 
we require an AWS relocator to register the system that has been 
relocated with a cost-sharing clearinghouse. Following the PCS model, 
as modified above for AWS relocation of FS, we provide that AWS 
licensees receive rights to reimbursement on the date that they enter 
into an agreement to relocate a BRS system in the 2150-2160/62 MHz 
band, and we require them to register documentation of the relocation 
agreement, with a clearinghouse within 30 calendar days of the date 
that the relocation agreement is signed. In the event that relocation 
is involuntary, we require the AWS licensee to file documentation of 
the relocation with the clearinghouse within 30 calendar days after the 
end of the relocation process, which will be the end of the one-year 
trial period in the absence of any disputes during that period.
    56. The Commission further requires AWS licensees, in registering 
their reimbursement rights with a clearinghouse, to provide certain 
information necessary to implement the reimbursement trigger test we 
have established. To determine whether an AWS licensee beginning 
operation of a base station has triggered a reimbursement obligation, a 
clearinghouse will apply a line-of-sight test. The precise line-of-
sight method differs depending on whether the relocated system used the 
2150-2160/62 MHz band for one-way transmissions to their subscribers' 
end user equipment or to receive broadband data at the BRS receive 
station hub. Therefore, we require AWS licensees registering relocated 
systems to provide the following information to the clearinghouse: (1) 
A detailed description of the relocated system's spectral frequency 
use; (2) if the system exclusively provided one-way transmission to 
subscribers, the GSA of the relocated system; and (3) if the system did 
not exclusively provide one-way transmission to subscribers, the system 
hub antenna's geographic location and the above ground level height of 
the receive station hub's receiving antenna centerline.
    57. Registration of New or Modified AWS Stations. Every AWS 
licensee that constructs a new site or modifies an existing site in the 
2.1 GHz band must file certain site information with the 
clearinghouse(s) prior to commencing operations. To ensure that a 
clearinghouse can apply the line-of-sight test to identify 
beneficiaries of a BRS relocation, however, we will require AWS 
licensees that construct or modify a site in the 2150-2162 MHz band to 
file, in addition to the information required from other 2.1 GHz AWS 
licensees, the above ground level height of the transmitting antenna 
centerline. We note, in particular, that the duty to file this 
information applies to an AWS licensee that modifies the frequencies 
used by a station such that a station previously operating entirely 
outside the 2150-2162 MHz band now operates inside the band. We further 
impose a continuing duty on entities to maintain the accuracy of the 
data on file with the clearinghouse, including height data and spectrum 
use.
    58. Determining Reimbursement Rights. A particular beneficiary's 
cost-sharing obligation will be calculated using the PCS cost-sharing 
formula, which imposes on each beneficiary a pro rata share of the 
relocation cost reduced in amount by a depreciation factor. We modify 
the PCS formula in one respect however using a fifteen year 
depreciation period rather than the ten year period used by PCS and AWS 
licensees. Choosing the same fifteen-year period for depreciation that 
we have chosen above for the relocation sunset period ensures that any 
AWS beneficiary that enters BRS spectrum before the relocation sunset 
will incur some obligation to share in the cost of the prior 
relocation.
    59. The Commission follows the policy in the PCS cost-sharing rules 
that entitles relocators to full reimbursement

[[Page 29830]]

without depreciation (rather than a pro rata amount subject to 
depreciation) where they relocate facilities that do not pose an 
interference problem to their own stations. This policy is intended to 
provide a new licensee with an incentive to relocate an incumbent's 
entire network instead of only those facilities that the licensee would 
be required to relocate under an interference analysis. Here, because 
we require relocation on a system-by-system basis (i.e., a licensee 
that interferes with part of a BRS system must relocate the entire 
system, but not necessarily a separate system that is part of the BRS 
incumbent's network), we hold that relocators will be entitled to 100 
percent reimbursement for the costs of relocating a particular system 
if they would not have triggered a relocation obligation for that 
system. As with the PCS and AWS rules, we adopt a simplified test for 
determining when a relocator would have been required to relocate the 
system that ignores the possibility of adjacent or non-adjacent channel 
interference. Specifically, we will allow full reimbursement of 
compensable costs if either (1) the AWS relocator's licensed frequency 
band is fully outside the BRS system's spectrum; or (2) the AWS 
relocator would not have triggered relocation under the applicable 
line-of-sight test. We decline to adopt a cap on the amount of 
reimbursement that benefiting entrants may owe. Even if the cap were to 
apply only to cost-sharing obligations, we are not persuaded that it is 
practical for incumbents to determine such costs at this time. We also 
note that a cap on cost-sharing obligations would have no effect on 
incumbents' rights to relocation costs and would only limit the rights 
of AWS licensees to receive reimbursement from other AWS licensees. In 
addition, there is no basis in the record to for the Commission to 
determine a specific cap. AWS licensees will therefore not have the 
safeguard and assurance of a specific cap on their reimbursement 
obligations as they do under the PCS cost-sharing rules. We 
nevertheless conclude that the rules we adopt below will provide 
beneficiaries with adequate protection from excessive reimbursement 
obligations. The PCS cost-sharing rules that we will incorporate 
include many other protections against excessive costs and, in 
addition, we have made modifications to the rules, as discussed below, 
to add to those protections.
    60. First, in defining reimbursable costs, we follow the policy in 
the PCS cost-sharing rules of limiting reimbursement to the actual cost 
of providing comparable facilities. Actual costs include those costs 
for which a relocator would be responsible in an involuntary 
relocation. In addition, incumbent transaction costs that are directly 
attributable to the relocation will also be subject to cost-sharing 
reimbursement up to a cap of two percent of the ``hard'' costs. Any 
relocation payments beyond these costs described, so-called ``premium'' 
payments, are not reimbursable. As we have with the FS cost-sharing 
regime, we further require relocators to prepare and submit an itemized 
documentation of all reimbursable relocation costs. In providing 
itemization, we direct parties to provide itemization of any applicable 
costs listed in Sec.  24.243(b), and for other costs, such as equipment 
not listed in Sec.  24.243(b), to be guided by that provision in 
determining appropriate detail of itemization. We direct the 
clearinghouse to require re-filing of any documentation found to be 
insufficiently specific.
    61. In addition to preparing the documentation, the Commission 
requires each relocator, as a prerequisite for receiving reimbursement 
through the cost-sharing regime, to obtain a third-party appraisal of 
the actual costs of replacing the system with comparable facilities 
prior to relocation, and to provide this appraisal to the clearinghouse 
with its registration. We provide one exception to the requirement of a 
third-party appraisal that should allow for a more efficient process in 
cases where cost claims are well within the bounds of reasonableness. 
An AWS relocator may register its reimbursement claim without providing 
the third-party appraisal, on condition that, in submitting its cost 
claim, it consents to binding resolution of any good faith disputes 
regarding that claim by the clearinghouse under the following standard: 
the relocator shall bear the ultimate burden of proof, and shall be 
required to demonstrate by clear and convincing evidence that its 
request does not exceed the actual costs of relocating the relevant BRS 
system or systems to comparable facilities. We expect that, by imposing 
on AWS relocators a substantial burden of proof and the risk of losing 
reimbursement rights, we will discourage them from exercising the 
option to waive an appraisal except in those cases where, even in the 
absence of an appraisal, disputes are unlikely to arise.
    62. The Commission further notes that the depreciation of 
reimbursement obligations itself should help to deter excessive 
relocation costs. The fact that reimbursement obligations depreciate 
over time (with the limited exception noted above) will mean that the 
relocator will usually bear the largest share of the burden. Thus it 
will provide the relocator with greater incentive to obtain relocation 
at a reasonable cost in the first instance.
    63. Taken together, these measures should provide subsequent 
entrants with sufficient assurance in most cases that their cost-
sharing obligations are not excessive. Should parties have good faith 
objections to reimbursement claims, however, they may exercise the same 
dispute resolution options available under the PCS cost-sharing rules 
including review by the clearinghouse, and possible resolution by 
alternative dispute resolution methods such as arbitration. We require, 
as we have above with FS cost-sharing disputes, that parties submit BRS 
cost-sharing disputes to the clearinghouse in the first instance.
    64. Participation in the Cost-sharing Plan. The cost-sharing 
obligations we establish above merely serve as defaults. As in the PCS 
cost-sharing rules parties remain free to enter into private cost-
sharing arrangements that alter some or all of these default 
obligations. Such private agreements may serve to further limit 
disputes regarding particular obligations. We emphasize, however, that 
parties to a private cost-sharing agreement may continue to seek 
reimbursement under the cost-sharing rules from those licensees that 
are not party to the agreement. Further, except insofar as there is a 
superseding agreement, we require all AWS licensees to participate in 
the cost-sharing process as established above. Thus, AWS relocators of 
a BRS system, to receive reimbursement, must pursue such reimbursement 
through the process established above, except to the extent that they 
have made agreements to an alternative process. Likewise, all AWS 
licensees that benefit from a relocation will be subject to the cost-
sharing obligations established above unless there is an applicable 
agreement that supersedes those obligations.
    65. Payment Issues and Incorporation of FS Rulings. With regard to 
the timing of payments, and the eligibility for installment payments, 
the Commission adopts the same rules for the BRS cost-sharing regime as 
we applied in the PCS cost-sharing system. We also follow, in the BRS 
context, the ruling that cost-sharing obligations are not terminated by 
the physical deconstruction of the benefiting AWS base station.
    66. Sunset. The Commission concludes that the cost-sharing regime 
should terminate on the same day that the relocation obligation in the 
2150-

[[Page 29831]]

2160/62 MHz band sunsets. We note that after the obligation to relocate 
BRS incumbents sunsets, a new AWS entrant need not incur any expense to 
require incumbents to vacate, and therefore receives no benefit from an 
earlier relocation. Because licensees entering after the relocation 
sunset receive no benefit from an earlier relocation, we conclude that 
it is appropriate that they should incur no cost obligations. 
Accordingly, while any reimbursement obligation that has accrued on or 
before the cost-sharing sunset date will continue, no new obligations 
will accrue after that date.

Summary of the Order (WT Docket No. 02-353)

    67. In 2003, the Commission adopted a rule in the Report and Order 
in WT Docket No. 02-353 (``AWS-1 Service Rules Order''), 69 FR 5711, 
February 6, 2004, to require AWS licensees in the 2110-2155 MHz band to 
coordinate with incumbent BRS licensees operating in the 2150-2155 MHz 
band prior to initiating operations from any base or fixed station. WCA 
filed a Petition for Reconsideration averring that this rule 
inadequately protects BRS incumbents operating in the 2150-2160/62 MHz 
band from interference. WCA contends that this coordination approach is 
inconsistent with the Commission's statement in the AWS-1 Service Rules 
Order that ``until such time as [MDS] operations are relocated, they 
must be protected from interference from AWS systems.'' WCA adds that 
``had the [AWS-1 Service Rules Order] ended there [WCA's] petition for 
reconsideration would not have been necessary.''
    68. In the Ninth R&O in ET Docket No. 00-258, we adopt significant 
revisions to our rules and policies regarding BRS channel 1 and 2/2A 
relocation. We find that our actions in the Ninth R&O have rendered the 
WCA Petition moot. We therefore dismiss the petition for that reason.

Procedural Matters

    69. Final Regulatory Flexibility Analysis for Ninth Report and 
Order. As required by Section 603 of the Regulatory Flexibility Act, 5 
U.S.C. 603, the Commission has prepared a Final Regulatory Flexibility 
Analysis (FRFA) of the possible significant economic impact on small 
entities of the proposals suggested in this document. The FRFA is set 
forth in Appendix B.
    70. Final Paperwork Reduction Analysis. This Ninth Report and Order 
contains new or modified information collection requirements subject to 
the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. It will 
be submitted to the Office of Management and Budget (OMB) for review 
under Section 3705(d) of the PRA. OMB, the general public, and other 
Federal agencies are invited to comment on the new or modified 
information collections contained in this proceeding. In addition, we 
note that pursuant to the Small Business Paperwork Relief Act of 2002, 
Public Law No. 107-198 (see 44 U.S.C. 3506(c)(4)), the Commission 
previously sought specific comment on how the Commission might 
``further reduce the information collection burden for small business 
concerns with fewer than 25 employees.''
    71. Congressional Review Act. The Commission will send a copy of 
this Ninth Report and Order in a report to be sent to Congress and the 
Government Accountability Office pursuant to the Congressional Review 
Act, see 5 U.S.C. 801(a)(1)(A).

Final Regulatory Flexibility Analysis

    124. As required by the Regulatory Flexibility Act (RFA) \1\ an 
Initial Regulatory Flexibility Analysis was incorporated in the Fifth 
Notice of Proposed Rule Making (Fifth Notice) in ET Docket 00-258, 70 
FR 61752, October 26, 2005.\2\ The Commission sought written public 
comment on the proposals in the Fifth Notice, including comment on the 
IRFA. This Final Regulatory Flexibility Analysis (FRFA) conforms to the 
RFA.\3\
---------------------------------------------------------------------------

    \1\ See 5 U.S.C. 603. The RFA, see 5 U.S.C. 601 et seq., has 
been amended by the Contract With America Advancement Act of 1996, 
Public Law 104-121, 110 Stat. 847 (1996) (CWAAA). Title II of the 
CWAAA is the Small Business Regulatory Enforcement Fairness Act of 
1996 (SBREFA).
    \2\ Amendment of part 2 of the Commission's Rules to Allocate 
Spectrum Below 3 GHz for Mobile and Fixed Services to Support the 
Introduction of New Advanced Wireless Services, including Third 
Generation Wireless Systems, ET Docket No. 00-258, Eighth Report and 
Order, Fifth Notice of Proposed Rule Making and Order, 20 FCC Rcd 
15866 (2005).
    \3\ 5 U.S.C. 604.
---------------------------------------------------------------------------

A. Need for, and Objectives of, the Ninth Report and Order

    125. The Ninth Report and Order (Ninth R&O) adopts relocation 
procedures to govern the relocation of: (1) Broadband Radio Service 
(BRS) \4\ licensees in the 2150-2160/62 MHz band; and (2) Fixed 
Microwave Service (FS) licensees in the 2110-2150 MHz and 2160-2180 MHz 
bands. The Ninth R&O also adopts cost sharing rules that identify the 
reimbursement obligations for Advanced Wireless Service (AWS) and 
Mobile Satellite Service (MSS) entrants benefiting from the relocation 
of FS operations in the 2110-2150 MHz band 2160-2200 MHz band and AWS 
entrants benefiting from the relocation of BRS operations in the 2150-
2160/62 MHz band. The adopted relocation and cost sharing procedures 
generally follow the Commission's relocation and cost sharing policies 
delineated in the Emerging Technologies proceeding, and as modified by 
subsequent decisions.\5\ These relocation policies are designed to 
allow early entry for new technology providers by allowing providers of 
new services to negotiate financial arrangements for reaccommodation of 
incumbent licensees, and have been tailored to set forth specific 
relocation schemes appropriate for a variety of different new entrants, 
including AWS, MSS, Personal Communications Service (PCS) licensees, 18 
GHz Fixed Satellite Service (FSS) licensees, and Sprint Nextel. While 
these new entrants occupy different frequency bands, each entrant has 
had to relocate incumbent operations. The relocation and cost sharing 
procedures we adopt in the Ninth R&O are designed to ensure an orderly 
and expeditious transition of, with minimal disruption to, incumbent 
BRS operations from the 2150-2160/62 MHz band and FS operations from 
the 2110-2150 MHz and 2160-2180 MHz bands, in order to allow early 
entry for new AWS licensees into these bands.
---------------------------------------------------------------------------

    \4\ The Multipoint Distribution Service (MDS) was renamed the 
Broadband Radio Service (BRS). See Amendment of Parts 1, 21, 73, 74 
and 101 of the Commission's Rules to Facilitate the Provision of 
Fixed and Mobile Broadband Access, Educational and Other Advanced 
Services in the 2150-2162 MHz Band, WT Docket No. 03-66, Report and 
Order and Further Notice of Proposed Rulemaking, 19 FCC Rcd 14165 
(2004).
    \5\ See Redevelopment of Spectrum to Encourage Innovation in the 
Use of New Telecommunications Technologies, ET Docket No. 92-9, 
First Report and Order and Third Notice of Proposed Rule Making, 7 
FCC Rcd 6886 (1992); Second Report and Order, 8 FCC Rcd 6495 (1993); 
Third Report and Order and Memorandum Opinion and Order, 8 FCC Rcd 
6589 (1993); Memorandum Opinion and Order, 9 FCC Rcd 1943 (1994); 
Second Memorandum Opinion and Order, 9 FCC Rcd 7797 (1994); aff'd 
Association of Public Safety Communications Officials-International, 
Inc. v. FCC, 76 F.3d 395 (DC Cir. 1996) (collectively, ``Emerging 
Technologies proceeding''). See also Teledesic, LLC v. FCC, 275 F.3d 
75 (DC Cir. 2001) (affirming modified relocation scheme for new 
satellite entrants to the 17.7-19.7 GHz band). See also Amendment to 
the Commission's Rules Regarding a Plan for Sharing the Costs of 
Microwave Relocation, WT Docket No. 95-157, First Report and Order 
and Further Notice of Proposed Rule Making, 11 FCC Rcd 8825 (1996); 
Second Report and Order, 12 FCC Rcd 2705 (1997) (collectively, 
Microwave Cost Sharing proceeding).
---------------------------------------------------------------------------

B. Summary of Significant Issues Raised by Public Comments in Response 
to the IRFA

    126. One comment was filed in response to the Order portion of the 
Eighth Report and Order, Fifth Notice of Proposed Rule Making and 
Order,

[[Page 29832]]

objecting to the suggestion by some commenters to the Fifth NPRM that 
the BRS entities should submit an estimate of the costs necessary to 
relocate the BRS entities' stations. The Wireless Communications 
Association International, Inc. objects to the imposition of any future 
information disclosure obligations on BRS channel 1 and 2 licensees 
regarding their relocation costs because it would require BRS licensees 
to speculate as to future events, conduct extensive due diligence to 
identify information that is not presently within their possession, or 
provide AWS auction participants with commercially sensitive 
information that could be utilized by AWS auction winners to the 
detriment of BRS licensees and lessees. In the Ninth R&O, the 
Commission decides not to require BRS licensees to submit an estimate 
of their relocation costs. Accordingly, we need not further address 
WCA's comments for purposes of this FRFA.

C. Description and Estimate of the Number of Small Entities to Which 
Rules Will Apply

    127. The RFA directs agencies to provide a description of and, 
where feasible, an estimate of the number of entities that will be 
affected by the rules adopted herein.\6\ The RFA defines the term 
``small entity'' as having the same meaning as the terms ``small 
business,'' ``small organization,'' and ``small governmental 
jurisdiction.'' \7\ In addition, the term ``small business'' has the 
same meaning as the term ``small business concern'' under the Small 
Business Act, unless the Commission has developed one or more 
definitions that are appropriate to its activities.\8\ Under the Small 
Business Act, a ``small business concern'' is one that: (1) Is 
independently owned and operated; (2) is not dominant in its field of 
operation; and (3) meets any additional criteria established by the 
Small Business Administration (SBA).\9\
---------------------------------------------------------------------------

    \6\ 5 U.S.C. 604(a)(3).
    \7\ 5 U.S.C. 601(6).
    \8\ 5 U.S.C. 601(3) (incorporating by reference the definition 
of ``small business concern'' in the Small Business Act, 15 U.S.C. 
632). Pursuant to 5 U.S.C. 601(3), the statutory definition of a 
small business applies ``unless an agency, after consultation with 
the Office of Advocacy of the Small Business Administration and 
after opportunity for public comment, establishes one or more 
definitions of such term which are appropriate to the activities of 
the agency and publishes such definition(s) in the Federal 
Register.''
    \9\ 15 U.S.C. 632.
---------------------------------------------------------------------------

    128. Broadband Radio Service. The Broadband Radio Service (BRS) 
consists of Multichannel Multipoint Distribution Service (MMDS) 
systems, which were originally licensed to transmit video programming 
to subscribers using the microwave frequencies of Multipoint 
Distribution Service (MDS) and Instructional Television Fixed Service 
(ITFS).\10\ In connection with the 1996 MDS auction, the Commission 
defined ``small business'' as an entity that, together with its 
affiliates, has average gross annual revenues that are not more than 
$40 million for the preceding three calendar years. The SBA has 
approved of this standard.\11\ The MDS auction resulted in 67 
successful bidders obtaining licensing opportunities for 493 Basic 
Trading Areas (BTAs).\12\ Of the 67 auction winners, 61 claimed status 
as a small business. At this time, we estimate that of the 61 small 
business MDS auction winners, 48 remain small business licensees. In 
addition to the 48 small businesses that hold BTA authorizations, there 
are approximately 392 incumbent MDS licensees that have gross revenues 
that are not more than $40 million and are thus considered small 
entities.\13\
---------------------------------------------------------------------------

    \10\ Amendment of parts 21 and 74 of the Commission's Rules with 
Regard to Filing Procedures in the Multipoint Distribution Service 
and in the Instructional Television Fixed Service and Implementation 
of Section 309(j) of the Communications Act--Competitive Bidding, 
Report and Order, 10 FCC Rcd 9589, 9593, ] 7 (1995) (``MDS Auction 
R&O''). The MDS and ITFS was renamed the Broadband Radio Service 
(BRS) and Educational Broadband Service (EBS), respectively. See 
Amendment of Parts 1, 21, 73, 74 and 101 of the Commission's Rules 
to Facilitate the Provision of Fixed and Mobile Broadband Access, 
Educational and Other Advanced Services in the 2150-2162 MHz Band, 
WT Docket No. 03-66, Report and Order and Further Notice of Proposed 
Rulemaking, 19 FCC Rcd 14165 (2004).
    \11\ See Letter to Margaret Wiener, Chief, Auctions and Industry 
Analysis Division, Wireless Telecommunications Bureau, FCC, from 
Gary Jackson, Assistant Administrator for Size Standards, Small 
Business Administration (dated Mar. 20, 2003) (noting approval of 
$40 million size standard for MDS auction).
    \12\ Basic Trading Areas (BTAs) were designed by Rand McNally 
and are the geographic areas by which MDS was auctioned and 
authorized. See MDS Auction R&O, 10 FCC Rcd at 9608, ] 34.
    \13\ 47 U.S.C. 309(j). Hundreds of stations were licensed to 
incumbent MDS licensees prior to implementation of section 309(j) of 
the Communications Act of 1934, 47 U.S.C. 309(j). For these pre-
auction licenses, the applicable standard is SBA's small business 
size standard for ``other telecommunications'' (annual receipts of 
$13.5 million or less). See 13 CFR 121.201, NAICS code 517910.
---------------------------------------------------------------------------

    129. In addition, the SBA has developed a small business size 
standard for Cable and Other Program Distribution,\14\ which includes 
all such companies generating $13.5 million or less in annual 
receipts.\15\ According to Census Bureau data for 1997, there were a 
total of 1,311 firms in this category that had operated for the entire 
year.\16\ Of this total, 1,180 firms had annual receipts of under $10 
million, and an additional 52 firms had receipts of $10 million or more 
but less than $25 million.\17\ Consequently, we estimate that the 
majority of providers in this service category are small businesses 
that may be affected by the proposed rules and policies. Because the 
Commission's action only affects MDS operations in the 2155-2160/62 MHz 
band, the actual number of MDS providers who will be affected by the 
proposed reallocation will only represent a small fraction of these 
small businesses.
---------------------------------------------------------------------------

    \14\ 13 CFR 121.201, NAICS code 517510.
    \15\ Id.
    \16\ U.S. Census Bureau, 1997 Economic Census, Subject Series: 
Information, ``Establishment and Firm Size (Including Legal Form of 
Organization),'' Table 4 (issued October 2000).
    \17\ Id.
---------------------------------------------------------------------------

    130. Fixed Microwave Services. Microwave services include common 
carrier,\18\ private-operational fixed,\19\ and broadcast auxiliary 
radio services.\20\ At present, there are approximately 36,708 common 
carrier fixed licensees and 59,291 private operational-fixed licensees 
and broadcast auxiliary radio licensees in the microwave services. The 
Commission has not yet defined a small business with respect to 
microwave services. For purposes of the FRFA, we will use the SBA's 
definition applicable to Cellular and other Wireless Telecommunications 
companies--i.e., an entity with no more than 1,500 persons.\21\ 
According to Census Bureau data for 1997, there were 977 firms in this 
category, total, that operated for the entire year.\22\ Of this total, 
965 firms had employment of 999 or fewer employees, and an additional 
twelve firms had employment of 1,000

[[Page 29833]]

employees or more.\23\ Thus, under this size standard, majority of 
firms can be considered small. We note that the number of firms does 
not necessarily track the number of licensees. We estimate that all of 
the Fixed Microwave licensees (excluding broadcast auxiliary licensees) 
would qualify as small entities under the SBA definition.
---------------------------------------------------------------------------

    \18\ 47 CFR part 101 et seq. (formerly, part 21 of the 
Commission's Rules) for common carrier fixed microwave services 
(except MDS).
    \19\ Persons eligible under parts 80 and 90 of the Commission's 
rules can use Private-Operational Fixed Microwave services. See 47 
CFR parts 80 and 90. Stations in this service are called 
operational-fixed to distinguish them from common carrier and public 
fixed stations. Only the licensee may use the operational-fixed 
station, and only for communications related to the licensee's 
commercial, industrial, or safety operations.
    \20\ Auxiliary Microwave Service is governed by part 74 of Title 
47 of the Commission's Rules. See 47 CFR part 74 et seq. Available 
to licensees of broadcast stations and to broadcast and cable 
network entities, broadcast auxiliary microwave stations are used 
for relaying broadcast television signals from the studio to the 
transmitter, or between two points such as a main studio and an 
auxiliary studio. The service also includes mobile TV pickups, which 
relay signals from a remote location back to the studio.
    \21\ 13 CFR 121.201, NAICS code 517212.
    \22\ U.S. Census Bureau, 1997 Economic Census, Subject Series: 
Information, ``Employment Size of Firms Subject to Federal Income 
Tax: 1997,'' Table 5 (issued Oct. 2000).
    \23\ Id. The census data do not provide a more precise estimate 
of the number of firms that have employment of 1,500 or fewer 
employees; the largest category provided is ``Firms with 1,000 
employees or more.''
---------------------------------------------------------------------------

    131. Advanced Wireless Service (AWS). We do not yet know how many 
applicants or licensees in the 2110-2150 MHz and 2160-2200 MHz bands 
will be small entities. Thus, the Commission assumes, for purposes of 
this FRFA, that all prospective licensees are small entities as that 
term is defined by the SBA or by our two special small business size 
standards for these bands. Although we do not know for certain which 
entities are likely to apply for these frequencies, we note that the 
AWS bands are comparable to those used for cellular service and 
personal communications service.
    132. Wireless Telephony Including Cellular, Personal Communications 
Service (PCS) and SMR Telephony Carriers. The SBA has developed a small 
business size standard for wireless small businesses within the two 
separate categories of Paging \24\ and Cellular and Other Wireless 
Telecommunications.\25\ Under both SBA categories, a wireless business 
is small if it has 1,500 or fewer employees. According to the 
Commission's most recent data,\26\ 1,012 companies reported that they 
were engaged in the provision of wireless service. Of these 1,012 
companies, an estimated 829 have 1,500 or fewer employees and 183 have 
more than 1,500 employees.\27\ Consequently, the Commission estimates 
that most wireless service providers are small entities that may be 
affected by the rules and policies adopted herein.
---------------------------------------------------------------------------

    \24\ 13 CFR 121.201, North American Industry Classification 
System (NAICS) code 517211 (changed from 513321 in October 2002).
    \25\ 13 CFR 121.201, North American Industry Classification 
System (NAICS) code 517212 (changed from 513322 in October 2002).
    \26\ FCC, Wireline Competition Bureau, Industry Analysis and 
Technology Division, ``Trends in Telephone Service'', Table 5.3, 
page 5-5 (June 2005). This source uses data that are current as of 
October 1, 2004.
    \27\ Id.
---------------------------------------------------------------------------

    133. Mobile Satellite Service. There are currently two space-
station authorizations for Mobile Satellite Service (MSS) systems that 
would operate with 2 GHz mobile Earth stations. Although we know the 
number and identity of the space-station operators, neither the number 
nor the identity of future 2 GHz mobile-Earth-station licensees can be 
determined from that data. The Commission notes that small businesses 
are not likely to have the financial ability to become MSS system 
operators because of the high implementation costs, including 
construction of satellite space stations and rocket launch, associated 
with satellite systems and services.

D. Description of Projected Reporting, Recordkeeping, and Other 
Compliance Requirements for Small Entities

    134. The Ninth R&O adopts relocation and cost-sharing procedures 
applicable to AWS licensees relative to incumbent BRS licensees in the 
2150-2160/62 MHz band and incumbent FS licensees in the 2110-2130 MHz 
and 2160-2180 MHz bands, and AWS and MSS/ATC relative to incumbent FS 
licensees in the 2130-2150 MHz and 2180-2200 MHz bands, but does not 
adopt service rules. The Ninth R&O includes requirements for 
interference analyses (for FS) and line-of-sight determinations (for 
BRS), as well as good faith negotiations for relocation purposes. All 
AWS entities that benefit from the clearance of this spectrum by other 
AWS entities or by a voluntarily relocating microwave incumbent must 
contribute to such relocation costs. AWS entities may satisfy their 
reimbursement requirement by entering into private cost-sharing 
agreements. These negotiations are likely to require the skills of 
accountants and engineers to evaluate the economic and technical 
requirements of relocation. AWS entities are required to reimburse 
other AWS entities or voluntarily relocating microwave incumbents that 
incur relocation costs and are not parties to the alternative 
agreement. In addition, parties to a private cost-sharing agreement may 
seek reimbursement through the clearinghouse. To obtain reimbursement, 
the relocator must submit documentation itemizing relocation costs to 
the clearinghouse in the form of uniform cost data along with a copy, 
without redaction, of the relocation agreement, if relocation was 
undertaken pursuant to a negotiated contract. A third party appraisal 
of relocation costs must be prepared and submitted to the clearinghouse 
by AWS relocators of BRS systems and by voluntarily relocating 
microwave incumbents. AWS relocators, MSS/ATC relocators and 
voluntarily relocating microwave incumbents must maintain documentation 
of cost-related issues until the applicable sunset date and provide 
such documentation upon request, to the clearinghouse, the Commission, 
or entrants that trigger a cost sharing obligation.
    135. AWS entities and MSS/ATC operators are required to file a 
notice containing site-specific data with the clearinghouse prior to 
initiating operations in the subject bands for newly constructed sites 
and for modified existing sites. However, AWS entities and MSS/ATC 
operators may satisfy this requirement by submitting a prior 
coordination notice (PCN) to the clearinghouse if a PCN was prepared in 
order to comply with coordination requirements previously adopted by 
the Commission. AWS entities and MSS/ATC operators that file either a 
notice or a PCN have a continuing duty to maintain the accuracy of the 
site-specific data on file with the clearinghouse until the sunset date 
specified in the Commission's Rules. AWS entities and MSS/ATC operators 
must pay the amount owed within 30 calendar days of receiving written 
notification of an outstanding reimbursement obligation. Parties of 
interest contesting the clearinghouse's determination of specific cost 
sharing obligations must provide evidentiary support to demonstrate 
that their calculation is reasonable and made in good faith. 
Specifically, these parties are expected to exercise due diligence to 
obtain the information necessary to prepare an independent estimate of 
the relocation costs in question and to file the independent estimate 
and supporting documentation with the clearinghouse.

E. Steps Taken To Minimize Significant Economic Impact on Small 
Entities and Significant Alternatives Considered

    136. The RFA requires an agency to describe any significant 
alternatives that it has considered in reaching its proposed approach, 
which may include the following four alternatives (among others): ``(1) 
The establishment of differing compliance or reporting requirements or 
timetables that take into account the resources available to small 
entities; (2) the clarification, consolidation, or simplification of 
compliance or reporting requirements under the rule for small entities; 
(3) the use of performance rather than design standards; and (4) an 
exemption from coverage of the rule, or any part thereof, for small 
entities.'' \28\
---------------------------------------------------------------------------

    \28\ 5 U.S.C. 603(c).
---------------------------------------------------------------------------

    137. In the Ninth R&O, the Commission decides to adopt relocation 
and cost sharing rules that are designed to support the introduction of 
AWS, with minimal disruption to incumbent BRS and FS operations, 
because doing

[[Page 29834]]

so will promote the rapid deployment of efficient radio communications 
but won't interrupt incumbents' provision of service to subscribers. An 
alternative option would have been to offer no relocation or cost 
sharing processes, and instead require incumbent licensees to cease use 
of the band by a date certain and prohibit new licensees from entering 
the band until that date. We believe that an Emerging Technologies-
based relocation and cost sharing procedure is preferable, as it draws 
on established and well-known principles (such as time-based 
negotiation periods and the requirement of negotiating in good faith), 
benefits small BRS and FS licensees because the proposals would require 
new AWS licensees to pay for the costs to relocate their incumbent 
operations to comparable facilities, and--for small AWS licensees--
offers a process by which new services can be brought to the market 
expeditiously. Moreover, we believe that the provision of additional 
spectrum that can be used to support AWS will directly benefit small 
business entities by providing new opportunities for the provision of 
innovative new fixed and mobile wireless services.
    138. In the Ninth R&O, the Commission also avoids imposing 
additional burdens on licensees by adopting rules that permit, to the 
extent practicable, licensees to satisfy certain requirements by using 
documents that are prepared in compliance with other Commission Rules. 
For example, AWS entities and MSS/ATC operators are required to file a 
notice containing site-specific data with the clearinghouse prior to 
initiating operations in the subject bands for newly constructed sites 
and for modified existing sites. However, AWS entities and MSS/ATC 
operators may satisfy this requirement by submitting a prior 
coordination notice (PCN) to the clearinghouse if a PCN was prepared in 
order to comply with coordination requirements previously adopted by 
the Commission. In addition, the Ninth R&O adopts a rule that allows an 
AWS relocator of a BRS system to avoid incurring the costs of preparing 
and submitting a third party appraisal of relocation costs if it 
consents to binding resolution by the clearinghouse of any good faith 
cost disputes regarding the reimbursement claim.

F. Report to Congress

    139. The Commission will send a copy of the Ninth R&O, including 
this FRFA, in a report to be sent to Congress pursuant to the 
Congressional Review Act.\29\ In addition, the Commission will send a 
copy of the Ninth R&O, including the FRFA, to the Chief Counsel for 
Advocacy of the SBA. A copy of the Ninth R&O and the FRFA (or summaries 
thereof) will also be published in the Federal Register.\30\
---------------------------------------------------------------------------

    \29\ See 5 U.S.C. 801(a)(1)(A).
    \30\ See 5 U.S.C. 604(b).
---------------------------------------------------------------------------

Ordering Clauses

    140. Pursuant to Sections 1, 4(i), 7(a), 301, 303(f), 303(g), 
303(r), 307, 316, 332 of the Communications Act of 1934, as amended, 47 
U.S.C. 151, 154(i), 157(a), 301, 303(f), 303(g), 303(r), 307, 316, and 
332, this Ninth Report and Order is adopted and parts 22, 27, and 101 
of the Commission's Rules are amended, as specified in Appendix A, 
effective June 23, 2006, except for Sec. Sec.  27.1166(a), (b) and (e); 
27.1170; 27.1182(a), (b); and 27.1186, which contain information 
collection requirements that are not effective until approved by the 
Office of Management and Budget. The FCC will publish a document in the 
Federal Register announcing the effective date for those sections when 
approved. Also, the Petition for Reconsideration filed by the Wireless 
Communications Association International on March 8, 2004 (WT Docket 
No. 02-353), is dismissed as moot.
    141. The Commission's Consumer and Governmental Affairs Bureau, 
Reference Information Center, shall send a copy of this Ninth Report 
and Order and Order, including the Final Regulatory Flexibility 
Analysis to the Chief Counsel for Advocacy of the Small Business 
Administration.

List of Subjects

47 CFR Part 22

    Communications common carriers, Communications equipment, Radio, 
Reporting and recordkeeping requirements.

47 CFR Part 27

    Communications common carriers, Radio.

47 CFR Part 101

    Communications, equipment, Radio, Reporting and recordkeeping 
requirements.

Federal Communications Commission
Marlene H. Dortch,
Secretary.

Rule Changes

0
For the reasons discussed in the preamble, the Federal Communications 
Commission amends 47 CFR parts 22, 27, and 101 as follows:

PART 22--PUBLIC MOBILE SERVICES

0
1. The authority citation for part 22 continues to read as follows:

    Authority: 47 U.S.C. 154, 222, 303, 309, and 332.

0
2. Section 22.602 is amended by removing and reserving paragraphs (b) 
and (h), revising paragraphs (c), (d) introductory text, (e) 
introductory text and (j), and by adding a new paragraph (k) to read as 
follows:


Sec.  22.602  Transition of the 2110-2130 MHz and 2160-2180 MHz 
channels to emerging technologies.

* * * * *
    (c) Relocation of fixed microwave licensees in the 2110-2130 MHz 
and 2160-2180 MHz bands will be subject to mandatory negotiations only. 
A separate mandatory negotiation period will commence for each fixed 
microwave licensee when an ET licensee informs that fixed microwave 
licensee in writing of its desire to negotiate. Mandatory negotiation 
periods are defined as follows:
    (1) Non-public safety incumbents will have a two-year mandatory 
negotiation period; and
    (2) Public safety incumbents will have a three-year mandatory 
negotiation period.
    (d) The mandatory negotiation period is triggered at the option of 
the ET licensee. Once mandatory negotiations have begun, a PARS 
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:
* * * * *
    (e) Involuntary period. After the end of the mandatory negotiation 
period, ET licensees may initiate involuntary relocation procedures 
under the Commission's rules. ET licensees are obligated to pay to 
relocate only the specific microwave links to which their systems pose 
an interference problem. Under involuntary relocation, a PARS licensee 
is required to relocate, provided that:
* * * * *
    (j) Sunset. PARS licensees will maintain primary status in the 
2110-2130 MHz and 2160-2180 MHz bands unless and until an ET licensee 
requires use of the spectrum. ET licensees are not required to pay 
relocation costs after the relocation rules sunset (i.e., for the 2110-
2130 MHz and 2160-2180 MHz bands, ten years after the first ET license

[[Page 29835]]

is issued in the respective band). Once the relocation rules sunset, an 
ET licensee may require the incumbent to cease operations, provided 
that the ET licensee intends to turn on a system within interference 
range of the incumbent, as determined by TIA TSB 10-F or any standard 
successor. ET licensee notification to the affected PARS licensee must 
be in writing and must provide the incumbent with no less than six 
months to vacate the spectrum. After the six-month notice period has 
expired, the PARS licensee must turn its license back into the 
Commission, unless the parties have entered into an agreement which 
allows the PARS licensee to continue to operate on a mutually agreed 
upon basis. If the parties cannot agree on a schedule or an alternative 
arrangement, requests for extension will be accepted and reviewed on a 
case-by-case basis. The Commission will grant such extensions only if 
the incumbent can demonstrate that:
    (1) It cannot relocate within the six-month period (e.g., because 
no alternative spectrum or other reasonable option is available), and;
    (2) The public interest would be harmed if the incumbent is forced 
to terminate operations (e.g., if public safety communications services 
would be disrupted).
    (k) Reimbursement and relocation expenses in the 2110-2130 MHz and 
2160-2180 MHz bands. Whenever an ET licensee in the 2110-2130 MHz and 
2160-2180 MHz band relocates a paired PARS link with one path in the 
2110-2130 MHz band and the paired path in the 2160-2180 MHz band, the 
ET license will be entitled to reimbursement pursuant to the procedures 
described in Sec. Sec.  27.1160 through 27.1174 of this chapter.

PART 27--MISCELLANEOUS WIRELESS COMMUNICATIONS SERVICES

0
The authority citation for part 27 continues to read as follows:

    Authority: 47 U.S.C. 154, 301, 302, 303, 307, 309, 332, 336, and 
337 unless otherwise noted.

Subpart L--1710-1755 MHz, 2160-2180 MHz Bands

0
3. The heading for subpart L is revised to read as set forth above.
0
3a. Section 27.1102, section heading is revised to read as follows:


Sec.  27.1102  Designated Entities in the 1710-1755 MHz and 2110-2155 
MHz bands

* * * * *

0
4. Section 27.1111 is revised to read as follows:


Sec.  27.1111  Relocation of fixed microwave service licensees in the 
2110-2150 MHz band.

    Part 22, subpart E and part 101, subpart B of this chapter contain 
provisions governing the relocation of incumbent fixed microwave 
service licensees in the 2110-2150 MHz band.

0
5. Section 27.1132 is revised to read as follows:


Sec.  27.1132  Protection of incumbent operations in the 2150-2160/62 
MHz band.

    All AWS licensees, prior to initiating operations from any base or 
fixed station, shall follow the provisions of Sec.  27.1255 of this 
part.

0
6. Part 27, Subpart L is amended by adding Sec. Sec.  27.1160, 27.1162, 
27.1164, 27.1166, 27.1168, 27.1170, 27.1172, 27.1174, 27.1176, 27.1178, 
27.1180, 27.1182, 27.1184, 27.1186, 27.1188, and 27.1190 to read as 
follows:

Cost-Sharing Policies Governing Microwave Relocation From the 2110-2150 
MHz and 2160-2200 MHz Bands


Sec.  27.1160  Cost-sharing requirements for AWS.

    Frequencies in the 2110-2150 MHz and 2160-2180 MHz bands listed in 
Sec.  101.147 of this chapter have been reallocated from Fixed 
Microwave Services (FMS) to use by AWS (as reflected in Sec.  2.106) of 
this chapter. In accordance with procedures specified in Sec.  22.602 
and Sec. Sec.  101.69 through 101.82 of this chapter, AWS entities are 
required to relocate the existing microwave licensees in these bands if 
interference to the existing microwave licensee would occur. All AWS 
entities that benefit from the clearance of this spectrum by other AWS 
entities or by a voluntarily relocating microwave incumbent must 
contribute to such relocation costs. AWS entities may satisfy their 
reimbursement requirement by entering into private cost-sharing 
agreements or agreeing to terms other than those specified in Sec.  
27.1164. However, AWS entities are required to reimburse other AWS 
entities or voluntarily relocating microwave incumbents that incur 
relocation costs and are not parties to the alternative agreement. In 
addition, parties to a private cost-sharing agreement may seek 
reimbursement through the clearinghouse (as discussed in Sec.  27.1162) 
from AWS entities or other Emerging Technologies (ET) entities, 
including Mobile Satellite Service (MSS) operators (for Ancillary 
Terrestrial Component (ATC) base stations), that are not parties to the 
agreement. The cost-sharing plan is in effect during all phases of 
microwave relocation specified in Sec.  22.602 and 101.69 of this 
chapter. If an AWS licensee enters into a spectrum leasing arrangement 
(as set forth in part 1, subpart X of this chapter) and the spectrum 
lessee triggers a cost-sharing obligation, the licensee is the AWS 
entity responsible for satisfying the cost-sharing obligations under 
Sec. Sec.  27.1160-27.1174.


Sec.  27.1162  Administration of the Cost-Sharing Plan.

    The Wireless Telecommunications Bureau, under delegated authority, 
will select one or more entities to operate as a neutral, not-for-
profit clearinghouse(s). This clearinghouse(s) will administer the 
cost-sharing plan by, inter alia, determining the cost-sharing 
obligation of AWS and other ET entities for the relocation of FMS 
incumbents from the 2110-2150 MHz and 2160-2200 MHz bands. The 
clearinghouse filing requirements (see Sec. Sec.  27.1166(a), 27.1170) 
will not take effect until an administrator is selected.


Sec.  27.1164  The cost-sharing formula.

    An AWS relocator who relocates an interfering microwave link, i.e., 
one that is in all or part of its market area and in all or part of its 
frequency band or a voluntarily relocating microwave incumbent, is 
entitled to pro rata reimbursement based on the following formula:


[[Page 29836]]


[GRAPHIC] [TIFF OMITTED] TR24MY06.007

    (a) RN equals the amount of reimbursement.
    (b) C equals the actual cost of relocating the link(s). Actual 
relocation costs include, but are not limited to, such items as: Radio 
terminal equipment (TX and/or RX--antenna, necessary feed lines, MUX/
Modems); towers and/or modifications; back-up power equipment; 
monitoring or control equipment; engineering costs (design/path 
survey); installation; systems testing; FCC filing costs; site 
acquisition and civil works; zoning costs; training; disposal of old 
equipment; test equipment (vendor required); spare equipment; project 
management; prior coordination notification under Sec.  101.103(d) of 
this chapter; site lease renegotiation; required antenna upgrades for 
interference control; power plant upgrade (if required); electrical 
grounding systems; Heating Ventilation and Air Conditioning (HVAC) (if 
required); alternate transport equipment; and leased facilities. 
Increased recurring costs represent part of the actual cost of 
relocation and, even if the compensation to the incumbent is in the 
form of a commitment to pay five years of charges, the AWS or MSS/ATC 
relocator is entitled to seek immediate reimbursement of the lump sum 
amount based on present value using current interest rates, provided it 
has entered into a legally binding agreement to pay the charges. C also 
includes voluntarily relocating microwave incumbent's independent third 
party appraisal of its compensable relocation costs and incumbent 
transaction expenses that are directly attributable to the relocation, 
subject to a cap of two percent of the ``hard'' costs involved. Hard 
costs are defined as the actual costs associated with providing a 
replacement system, such as equipment and engineering expenses. C may 
not exceed $250,000 per paired link, with an additional $150,000 
permitted if a new or modified tower is required.
    (c) N equals the number of AWS and MSS/ATC entities that have 
triggered a cost-sharing obligation. For the AWS relocator, N=1. For 
the next AWS entity triggering a cost-sharing obligation, N=2, and so 
on. In the case of a voluntarily relocating microwave incumbent, N=1 
for the first AWS entity triggering a cost-sharing obligation. For the 
next AWS or MSS/ATC entity triggering a cost-sharing obligation, N=2, 
and so on.
    (d) Tm equals the number of months that have elapsed between the 
month the AWS or MSS/ATC relocator or voluntarily relocating microwave 
incumbent obtains reimbursement rights for the link and the month in 
which an AWS entity triggers a cost-sharing obligation. An AWS or MSS/
ATC relocator obtains reimbursement rights for the link on the date 
that it signs a relocation agreement with a microwave incumbent. A 
voluntarily relocating microwave incumbent obtains reimbursement rights 
for the link on the date that the incumbent notifies the Commission 
that it intends to discontinue, or has discontinued, the use of the 
link, pursuant to Sec.  101.305 of the Commission's rules.


Sec.  27.1166  Reimbursement under the Cost-Sharing Plan.

    (a) Registration of reimbursement rights. Claims for reimbursement 
under the cost-sharing plan are limited to relocation expenses incurred 
on or after the date when the first AWS license is issued in the 
relevant AWS band (start date). If a clearinghouse is not selected by 
that date (see Sec.  27.1162) claims for reimbursement (see Sec.  
27.1166) and notices of operation (see Sec.  27.1170) for activities 
that occurred after the start date but prior to the clearinghouse 
selection must be submitted to the clearinghouse within 30 calendar 
days of the selection date.
    (1) To obtain reimbursement, an AWS relocator or MSS/ATC relocator 
must submit documentation of the relocation agreement to the 
clearinghouse within 30 calendar days of the date a relocation 
agreement is signed with an incumbent. In the case of involuntary 
relocation, an AWS relocator or MSS/ATC relocator must submit 
documentation of the relocated system within 30 calendar days after the 
end of the relocation.
    (2) To obtain reimbursement, a voluntarily relocating microwave 
incumbent must submit documentation of the relocation of the link to 
the clearinghouse within 30 calendar days of the date that the 
incumbent notifies the Commission that it intends to discontinue, or 
has discontinued, the use of the link, pursuant to Sec.  101.305 of the 
Commission's rules.
    (b) Documentation of expenses. Once relocation occurs, the AWS 
relocator, MSS/ATC relocator, or the voluntarily relocating microwave 
incumbent, must submit documentation itemizing the amount spent for 
items specifically listed in Sec.  27.1164(b), as well as any 
reimbursable items not specifically listed in Sec.  27.1164(b) that are 
directly attributable to actual relocation costs. Specifically, the AWS 
relocator, MSS/ATC relocator, or the voluntarily relocating microwave 
incumbent must submit, in the first instance, only the uniform cost 
data requested by the clearinghouse along with a copy, without 
redaction, of either the relocation agreement, if any, or the third 
party appraisal described in (b)(1), if relocation was undertaken by 
the microwave incumbent. AWS relocators, MSS/ATC relocators and 
voluntarily relocating microwave incumbents must maintain documentation 
of cost-related issues until the applicable sunset date and provide 
such documentation upon request, to the clearinghouse, the Commission, 
or entrants that trigger a cost-sharing obligation. If an AWS relocator 
pays a microwave incumbent a monetary sum to relocate its own 
facilities, the AWS relocator must estimate the costs associated with 
relocating the incumbent by itemizing the anticipated cost for items 
listed in Sec.  27.1164(b). If the sum paid to the incumbent cannot be 
accounted for, the remaining amount is not eligible for reimbursement.
    (1) Third party appraisal. The voluntarily relocating microwave 
incumbent, must also submit an independent third party appraisal of its 
compensable relocation costs. The appraisal should be based on the 
actual

[[Page 29837]]

cost of replacing the incumbent's system with comparable facilities and 
should exclude the cost of any equipment upgrades or items outside the 
scope of Sec.  27.1164(b).
    (2) Identification of links. The AWS relocator, MSS/ATC relocator, 
or the voluntarily relocating microwave incumbent, must identify the 
particular link associated with appropriate expenses (i.e., costs may 
not be averaged over numerous links). Where the AWS relocator, MSS/ATC 
relocator, or voluntarily relocating microwave incumbent relocates both 
paths of a paired channel microwave link (e.g., 2110-2130 MHz with 
2160-2180 MHz and 2130-2150 MHz with 2180-2200 MHz), the AWS relocator, 
MSS/ATC relocator, or voluntarily relocating microwave incumbent must 
identify the expenses associated with each paired microwave link.
    (c) Full Reimbursement. An AWS relocator who relocates a microwave 
link that is either fully outside its market area or its licensed 
frequency band may seek full reimbursement through the clearinghouse of 
compensable costs, up to the reimbursement cap as defined in Sec.  
27.1164(b). Such reimbursement will not be subject to depreciation 
under the cost-sharing formula.
    (d) Good Faith Requirement. New entrants and incumbent licensees 
are expected to act in good faith in satisfying the cost-sharing 
obligations under Sec. Sec.  27.1160 through 27.1174. The requirement 
to act in good faith extends to, but is not limited to, the preparation 
and submission of the documentation required in paragraph (b) of this 
section.
    (e) MSS Participation in the Clearinghouse. MSS operators are not 
required to submit reimbursements to the clearinghouse for links 
relocated due to interference from MSS space-to-Earth downlink 
operations, but may elect to do so, in which case the MSS operator must 
identify the reimbursement claim as such and follow the applicable 
procedures governing reimbursement in part 27. MSS reimbursement rights 
and cost-sharing obligations for space-to-Earth downlink operations are 
governed by Sec.  101.82 of this chapter.
    (f) Reimbursement for Self-relocating FMS links in the 2130-2150 
MHz and 2180-2200 MHz bands. Where a voluntarily relocating microwave 
incumbent relocates a paired microwave link with paths in the 2130-2150 
MHz and 2180-2200 MHz bands, it may not seek reimbursement from MSS 
operators (including MSS/ATC operators), but is entitled to partial 
reimbursement from the first AWS beneficiary, equal to fifty percent of 
its actual costs for relocating the paired link, or half of the 
reimbursement cap in Sec.  27.1164(b), whichever is less. This amount 
is subject to depreciation as specified Sec.  27.1164(b). An AWS 
licensee who is obligated to reimburse relocation costs under this rule 
is entitled to obtain reimbursement from other AWS beneficiaries in 
accordance with Sec. Sec.  27.1164 and 27.1168. For purposes of 
applying the cost-sharing formula relative to other AWS licensees that 
benefit from the self-relocation, the fifty percent attributable to the 
AWS entrant shall be treated as the entire cost of the link relocation, 
and depreciation shall run from the date on which the clearinghouse 
issues the notice of an obligation to reimburse the voluntarily 
relocating microwave incumbent. The cost-sharing obligations for MSS 
operators in the 2180-2200 MHz band are governed by Sec.  101.82 of 
this chapter.


Sec.  27.1168  Triggering a Reimbursement Obligation.

    (a) The clearinghouse will apply the following test to determine 
when an AWS entity or MSS/ATC entity has triggered a cost-sharing 
obligation and therefore must pay an AWS relocator, MSS relocator 
(including MSS/ATC), or a voluntarily relocating microwave incumbent in 
accordance with the formula detailed in Sec.  27.1164:
    (1) All or part of the relocated microwave link was initially co-
channel with the licensed AWS band(s) of the AWS entity or the selected 
assignment of the MSS operator that seeks and obtains ATC authority 
(see Sec.  25.149(a)(2)(i) of this chapter);
    (2) An AWS relocator, MSS relocator (including MSS/ATC) or a 
voluntarily relocating microwave incumbent has paid the relocation 
costs of the microwave incumbent; and
    (3) The AWS or MSS entity is operating or preparing to turn on a 
fixed base station (including MSS/ATC) at commercial power and the 
fixed base station is located within a rectangle (Proximity Threshold) 
described as follows:
    (i) The length of the rectangle shall be x where x is a line 
extending through both nodes of the microwave link to a distance of 48 
kilometers (30 miles) beyond each node. The width of the rectangle 
shall be y where y is a line perpendicular to x and extending for a 
distance of 24 kilometers (15 miles) on both sides of x. Thus, the 
rectangle is represented as follows:

[GRAPHIC] [TIFF OMITTED] TR24MY06.008


[[Page 29838]]


    (ii) If the application of the Proximity Threshold Test indicates 
that a reimbursement obligation exists, the clearinghouse will 
calculate the reimbursement amount in accordance with the cost-sharing 
formula and notify the AWS or MSS/ATC entity of the total amount of its 
reimbursement obligation.
    (b) Once a reimbursement obligation is triggered, the AWS or MSS/
ATC entity may not avoid paying its cost-sharing obligation by 
deconstructing or modifying its facilities.


Sec.  27.1170  Payment Issues.

    Prior to initiating operations for a newly constructed site or 
modified existing site, an AWS entity or MSS/ATC entity is required to 
file a notice containing site-specific data with the clearinghouse. The 
notice regarding the new or modified site must provide a detailed 
description of the proposed site's spectral frequency use and 
geographic location, including but not limited to the applicant's name 
and address, the name of the transmitting base station, the geographic 
coordinates corresponding to that base station, the frequencies and 
polarizations to be added, changed or deleted, and the emission 
designator. If a prior coordination notice (PCN) under Sec.  101.103(d) 
of this chapter is prepared, AWS entities can satisfy the site-data 
filing requirement by submitting a copy of their PCN to the 
clearinghouse. AWS entities or MSS/ATC entities that file either a 
notice or a PCN have a continuing duty to maintain the accuracy of the 
site-specific data on file with the clearinghouse. Utilizing the site-
specific data, the clearinghouse will determine if any reimbursement 
obligation exists and notify the AWS entity or MSS/ATC entity in 
writing of its repayment obligation, if any. When the AWS entity or 
MSS/ATC entity receives a written copy of such obligation, it must pay 
directly to the relocator the amount owed within 30 calendar days.


Sec.  27.1172  Dispute Resolution Under the Cost-Sharing Plan.

    (a) Disputes arising out of the cost-sharing plan, such as disputes 
over the amount of reimbursement required, must be brought, in the 
first instance, to the clearinghouse for resolution. To the extent that 
disputes cannot be resolved by the clearinghouse, parties are 
encouraged to use expedited Alternative Dispute Resolution (ADR) 
procedures, such as binding arbitration, mediation, or other ADR 
techniques.
    (b) Evidentiary requirement. Parties of interest contesting the 
clearinghouse's determination of specific cost-sharing obligations must 
provide evidentiary support to demonstrate that their calculation is 
reasonable and made in good faith. Specifically, these parties are 
expected to exercise due diligence to obtain the information necessary 
to prepare an independent estimate of the relocation costs in question 
and to file the independent estimate and supporting documentation with 
the clearinghouse.


Sec.  27.1174  Termination of Cost-Sharing Obligations.

    The cost-sharing plan will sunset for all AWS and MSS (including 
MSS/ATC) entities on the same date on which the relocation obligation 
for the subject AWS band (i.e., 2110-2150 MHz, 2160-2175 MHz, or 2175-
2180 MHz) in which the relocated FMS link was located terminates. AWS 
or MSS (including MSS/ATC) entrants that trigger a cost-sharing 
obligation prior to the sunset date must satisfy their payment 
obligation in full.

Cost-Sharing Policies Governing Broadband Radio Service Relocation From 
the 2150-2160/62 MHz Band


 Sec.  27.1176  Cost-sharing requirements for AWS in the 2150-2160/62 
MHz band.

    (a) Frequencies in the 2150-2160/62 MHz band have been reallocated 
from the Broadband Radio Service (BRS) to AWS. All AWS entities who 
benefit from another AWS entity's clearance of BRS incumbents from this 
spectrum, including BRS incumbents occupying the 2150-2162 MHz band on 
a primary basis, must contribute to such relocation costs. Only AWS 
entrants that relocate BRS incumbents are entitled to such 
reimbursement.
    (b) AWS entities may satisfy their reimbursement requirement by 
entering into private cost-sharing agreements or agreeing to terms 
other than those specified in Sec.  27.1180. However, AWS entities are 
required to reimburse other AWS entities that incur relocation costs 
and are not parties to the alternative agreement. In addition, parties 
to a private cost-sharing agreement may seek reimbursement through the 
clearinghouse (as discussed in Sec.  27.1178) from AWS entities that 
are not parties to the agreement. The cost-sharing plan is in effect 
during all phases of BRS relocation until the end of the period 
specified in Sec.  27.1190. If an AWS licensee enters into a spectrum 
leasing arrangement and the spectrum lessee triggers a cost-sharing 
obligation, the licensee is the AWS entity responsible for satisfying 
cost-sharing obligations under these rules.


Sec.  27.1178  Administration of the Cost-Sharing Plan.

    The Wireless Telecommunications Bureau, under delegated authority, 
will select one or more entities to operate as a neutral, not-for-
profit clearinghouse(s). This clearinghouse(s) will administer the 
cost-sharing plan by, inter alia, determining the cost-sharing 
obligations of AWS entities for the relocation of BRS incumbents from 
the 2150-2162 MHz band. The clearinghouse filing requirements (see 
Sec. Sec.  27.1182(a), 27.1186) will not take effect until an 
administrator is selected.


Sec.  27.1180  The cost-sharing formula.

    (a) An AWS licensee that relocates a BRS system with which it 
interferes is entitled to pro rata reimbursement based on the cost-
sharing formula specified in Sec.  27.1164, except that the 
depreciation factor shall be [180-Tm]/180, and the variable 
C shall be applied as set forth in paragraph (b) of this section.
    (b) C is the actual cost of relocating the system, and includes, 
but is not limited to, such items as: Radio terminal equipment (TX and/
or RX--antenna, necessary feed lines, MUX/Modems); towers and/or 
modifications; back-up power equipment; monitoring or control 
equipment; engineering costs (design/path survey); installation; 
systems testing; FCC filing costs; site acquisition and civil works; 
zoning costs; training; disposal of old equipment; test equipment 
(vendor required); spare equipment; project management; site lease 
renegotiation; required antenna upgrades for interference control; 
power plant upgrade (if required); electrical grounding systems; 
Heating Ventilation and Air Conditioning (HVAC) (if required); 
alternate transport equipment; leased facilities; and end user units 
served by the base station that is being relocated. In addition to 
actual costs, C may include the cost of an independent third party 
appraisal conducted pursuant to Sec.  27.1182(a)(3) and incumbent 
transaction expenses that are directly attributable to the relocation, 
subject to a cap of two percent of the ``hard'' costs involved. Hard 
costs are defined as the actual costs associated with providing a 
replacement system, such as equipment and engineering expenses. There 
is no cap on the actual costs of relocation.
    (c) An AWS system shall be considered an interfering system for 
purposes of this rule if the AWS system is in all or part of the BRS 
frequency band and operates within line of sight to BRS operations 
under the applicable test specified in Sec.  27.1184. An AWS relocator 
that relocates a BRS system

[[Page 29839]]

with which it does not interfere is entitled to full reimbursement, as 
specified in Sec.  27.1182(c).


Sec.  27.1182  Reimbursement under the Cost-Sharing Plan.

    (a) Registration of reimbursement rights. (1) To obtain 
reimbursement, an AWS relocator must submit documentation of the 
relocation agreement to the clearinghouse within 30 calendar days of 
the date a relocation agreement is signed with an incumbent. In the 
case of involuntary relocation, an AWS relocator must submit 
documentation of the relocated system within 30 calendar days after the 
end of the one-year trial period.
    (2) Registration of any BRS system shall include:
    (i) A description of the system's frequency use;
    (ii) If the system exclusively provides one-way transmissions to 
subscribers, the Geographic Service Area of the system; and
    (iii) If the system does not exclusively provide one-way 
transmission to subscribers, the system hub antenna's geographic 
location and the above ground level height of the system's receiving 
antenna centerline.
    (3) The AWS relocator must also include with its system 
registration an independent third party appraisal of the compensable 
relocation costs. The appraisal should be based on the actual cost of 
replacing the incumbent's system with comparable facilities and should 
exclude the cost of any equipment upgrades that are not necessary to 
the provision of comparable facilities. An AWS relocator may submit 
registration without a third party appraisal if it consents to binding 
resolution by the clearinghouse of any good faith cost disputes 
regarding the reimbursement claim, under the following standard: The 
relocator shall bear the burden of proof, and be required to 
demonstrate by clear and convincing evidence that its request does not 
exceed the actual cost of relocating the relevant BRS system or systems 
to comparable facilities. Failure to satisfy this burden of proof will 
result in loss of rights to subsequent reimbursement of the disputed 
costs from any AWS licensee.
    (b) Documentation of expenses. Once relocation occurs, the AWS 
relocator must submit documentation itemizing the amount spent for 
items specifically listed in Sec.  27.1180(b), as well as any 
reimbursable items not specifically listed in Sec.  27.1180(b) that are 
directly attributable to actual relocation costs. Specifically, the AWS 
relocator must submit, in the first instance, only the uniform cost 
data requested by the clearinghouse along with copies, without 
redaction, of the relocation agreement, if any, and the third party 
appraisal described in (a)(3), of this section, if prepared. The AWS 
relocator must identify the particular system associated with 
appropriate expenses (i.e., costs may not be averaged over numerous 
systems). If an AWS relocator pays a BRS incumbent a monetary sum to 
relocate its own facilities in whole or in part, the AWS relocator must 
itemize the actual costs to the extent determinable, and otherwise must 
estimate the actual costs associated with relocating the incumbent and 
itemize these costs. If the sum paid to the incumbent cannot be 
accounted for, the remaining amount is not eligible for reimbursement. 
All AWS relocators seeking reimbursement through the clearinghouse have 
an ongoing duty to maintain all relevant records of BRS relocation-
related expenses until the sunset of cost-sharing obligations, and to 
provide, upon request, such documentation, including a copy of the 
independent appraisal if one was conducted, to the clearinghouse, the 
Commission, or AWS entrants that trigger a cost-sharing obligation.
    (c) Full reimbursement. An AWS relocator who relocates a BRS system 
that is either:
    (1) Wholly outside its frequency band; or
    (2) Not within line of sight of the relocator's transmitting base 
station may seek full reimbursement through the clearinghouse of 
compensable costs. Such reimbursement will not be subject to 
depreciation under the cost-sharing formula.
    (d) Good Faith Requirement. New entrants and incumbent licensees 
are expected to act in good faith in satisfying the cost-sharing 
obligations under Sec. Sec.  27.1176 through 27.1190. The requirement 
to act in good faith extends to, but is not limited to, the preparation 
and submission of the documentation required in paragraph (b) of this 
section.


Sec.  27.1184  Triggering a reimbursement obligation.

    (a) The clearinghouse will apply the following test to determine 
when an AWS entity has triggered a cost-sharing obligation and 
therefore must pay an AWS relocator of a BRS system in accordance with 
the formula detailed in Sec.  27.1180:
    (1) All or part of the relocated BRS system was initially co-
channel with the licensed AWS band(s) of the AWS entity;
    (2) An AWS relocator has paid the relocation costs of the BRS 
incumbent; and
    (3) The other AWS entity has turned on or is preparing to turn on a 
fixed base station at commercial power and the incumbent BRS system 
would have been within the line of sight of the AWS entity's fixed base 
station, defined as follows.
    (i) For a BRS system using the 2150-2160/62 MHz band exclusively to 
provide one-way transmissions to subscribers, the clearinghouse will 
determine whether there is an unobstructed signal path (line of sight) 
to the incumbent licensee's geographic service area (GSA), based on the 
following criteria: use of 9.1 meters (30 feet) for the receiving 
antenna height, use of the actual transmitting antenna height and 
terrain elevation, and assumption of 4/3 Earth radius propagation 
conditions. Terrain elevation data must be obtained from the U.S. 
Geological Survey (USGS) 3-second database. All coordinates used in 
carrying out the required analysis shall be based upon use of NAD-83.
    (ii) For all other BRS systems using the 2150-2160/62 MHz band, the 
clearinghouse will determine whether there is an unobstructed signal 
path (line of sight) to the incumbent licensee's receive station hub 
using the method prescribed in ``Methods for Predicting Interference 
from Response Station Transmitters and to Response Station Hubs and for 
Supplying Data on Response Station Systems. MM Docket 97-217,'' in 
Amendment of 47 CFR parts 1, 21 and 74 to Enable Multipoint 
Distribution Service and Instructional Television Fixed Service 
Licensees to Engage in Fixed Two-Way Transmissions, MM Docket No. 97-
217, Report and Order on Further Reconsideration and Further Notice of 
Proposed Rulemaking, 15 FCC Rcd 14566 at 14610, Appendix D.
    (b) If the application of the trigger test described in paragraphs 
(a)(3)(i) and (ii) of this section, indicates that a reimbursement 
obligation exists, the clearinghouse will calculate the reimbursement 
amount in accordance with the cost-sharing formula and notify the 
subsequent AWS entity of the total amount of its reimbursement 
obligation.
    (c) Once a reimbursement obligation is triggered, the AWS entity 
may not avoid paying its cost-sharing obligation by deconstructing or 
modifying its facilities.


Sec.  27.1186  Payment issues.

    Payment of cost-sharing obligations for the relocation of BRS 
systems in the 2150-60/62 MHz band is subject to the rules set forth in 
Sec.  27.1170. If an AWS licensee is initiating operations for a newly 
constructed site or modified

[[Page 29840]]

existing site in licensed bands overlapping the 2150-2160/62 MHz band, 
the AWS licensee must file with the clearinghouse, in addition to the 
site-specific data required by Sec.  27.1170, the above ground level 
height of the transmitting antenna centerline. AWS entities have a 
continuing duty to maintain the accuracy of the site-specific data on 
file with the clearinghouse.


Sec.  27.1188  Dispute resolution under the Cost-Sharing Plan.

    (a) Disputes arising out of the cost-sharing plan, such as disputes 
over the amount of reimbursement required, must be brought, in the 
first instance, to the clearinghouse for resolution. To the extent that 
disputes cannot be resolved by the clearinghouse, parties are 
encouraged to use expedited Alternative Dispute Resolution (ADR) 
procedures, such as binding arbitration, mediation, or other ADR 
techniques.
    (b) Evidentiary requirement. Parties of interest contesting the 
clearinghouse's determination of specific cost-sharing obligations must 
provide evidentiary support to demonstrate that their calculation is 
reasonable and made in good faith. Specifically, these parties are 
expected to exercise due diligence to obtain the information necessary 
to prepare an independent estimate of the relocation costs in question 
and to file the independent estimate and supporting documentation with 
the clearinghouse.


Sec.  27.1190  Termination of cost-sharing obligations.

    The plan for cost-sharing in connection with BRS relocation will 
sunset for all AWS entities fifteen years after the relocation sunset 
period for BRS relocation commences, i.e., fifteen years after the 
first AWS licenses are issued in any part of the 2150-2162 MHz band. 
AWS entrants that trigger a cost-sharing obligation prior to the sunset 
date must satisfy their payment obligation in full.

0
6. Part 27, Subpart M is amended by adding Sec. Sec.  27.1250 through 
27.1255 to read as follows:

Relocation Procedures for the 2150-2160/62 MHz Band


Sec.  27.1250  Transition of the 2150-2160/62 MHz band from the 
Broadband Radio Service to the Advanced Wireless Service.

    The 2150-2160/62 MHz band has been allocated for use by the 
Advanced Wireless Service (AWS). The rules in this section provide for 
a transition period during which AWS licensees may relocate existing 
Broadband Radio Service (BRS) licensees using these frequencies to 
their assigned frequencies in the 2496-2690 MHz band or other media.
    (a) AWS licensees and BRS licensees shall engage in mandatory 
negotiations for the purpose of agreeing to terms under which the BRS 
licensees would:
    (1) Relocate their operations to other frequency bands or other 
media; or alternatively
    (2) Accept a sharing arrangement with the AWS licensee that may 
result in an otherwise impermissible level of interference to the BRS 
operations.
    (b) If no agreement is reached during the mandatory negotiation 
period, an AWS licensee may initiate involuntary relocation procedures. 
Under involuntary relocation, the incumbent is required to relocate, 
provided that the AWS licensee meets the conditions of Sec.  27.1252.
    (c) Relocation of BRS licensees by AWS licensees will be subject to 
a three-year mandatory negotiation period. BRS licensees may suspend 
the running of the three-year negotiation period for up to one year if 
the BRS licensee cannot be relocated to comparable facilities at the 
time the AWS licensee seeks entry into the band.


Sec.  27.1251  Mandatory Negotiations.

    (a) Once mandatory negotiations have begun, a BRS 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. The BRS licensee is required to cooperate with an AWS 
licensee's request to provide access to the facilities to be relocated, 
other than the BRS customer location, so that an independent third 
party can examine the BRS system and prepare an appraisal of the costs 
to relocate the incumbent. In evaluating claims that a party has not 
negotiated in good faith, the FCC will consider, inter alia, the 
following factors:
    (1) Whether the AWS licensee has made a bona fide offer to relocate 
the BRS licensee to comparable facilities in accordance with Sec.  
27.1252(b);
    (2) If the BRS licensee has demanded a premium, the type of premium 
requested (e.g., whether the premium is directly related to relocation, 
such as 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.
    (b) 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.
    (c) Mandatory negotiations will commence for each BRS licensee when 
the AWS licensee informs the BRS licensee in writing of its desire to 
negotiate. Mandatory negotiations will be conducted with the goal of 
providing the BRS 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. 
System is defined as a base station and all end user units served by 
that base station. If analog facilities are being replaced with analog, 
comparable facilities may provide a comparable number of 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 
BRS 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 video transmission, it is measured by whether the 
end-to-end transmission delay is within the required delay bound. If an 
analog system is replaced with a digital 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 BRS system. AWS licensees would compensate BRS 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. AWS licensees could satisfy this 
obligation by making a lump-sum

[[Page 29841]]

payment based on present value using current interest rates. 
Additionally, the maintenance costs to the BRS licensee would be 
equivalent to the replaced system in order for the replacement system 
to be comparable.
    (d) AWS licensees are responsible for the relocation costs of end 
user units served by the BRS base station that is being relocated. If a 
lessee is operating under a BRS license, the BRS licensee may rely on 
the throughput, reliability, and operating costs of facilities in use 
by a lessee in negotiating comparable facilities and may include the 
lessee in negotiations.


Sec.  27.1252  Involuntary Relocation Procedures.

    (a) If no agreement is reached during the mandatory negotiation 
period, an AWS licensee may initiate involuntary relocation procedures 
under the Commission's rules. AWS licensees are obligated to pay to 
relocate BRS systems to which the AWS system poses an interference 
problem. Under involuntary relocation, the BRS licensee is required to 
relocate, provided that the AWS licensee:
    (1) Guarantees payment of relocation costs, including all 
engineering, equipment, site and FCC fees, as well as any legitimate 
and prudent transaction expenses incurred by the BRS licensee that are 
directly attributable to an involuntary relocation, subject to a cap of 
two percent of the ``hard'' costs involved. Hard costs are defined as 
the actual costs associated with providing a replacement system, such 
as equipment and engineering expenses. There is no cap on the actual 
costs of relocation. AWS licensees are not required to pay BRS 
licensees for internal resources devoted to the relocation process. AWS 
licensees are not required to pay for transaction costs incurred by BRS 
licensees during the mandatory period once the involuntary period is 
initiated, or for fees that cannot be legitimately tied to the 
provision of comparable facilities; and
    (2) Completes all activities necessary for implementing the 
replacement facilities, including engineering and cost analysis of the 
relocation procedure and, if radio facilities are used, identifying and 
obtaining, on the incumbents' behalf, new microwave frequencies and 
frequency coordination.
    (b) Comparable facilities. The replacement system provided to an 
incumbent during an involuntary relocation must be at least equivalent 
to the existing BRS system with respect to the following three factors:
    (1) Throughput. Communications throughput is the amount of 
information transferred within a system in a given amount of time. 
System is defined as a base station and all end user units served by 
that base station. If analog facilities are being replaced with analog, 
the AWS licensee is required to provide the BRS licensee with a 
comparable number of channels. If digital facilities are being replaced 
with digital, the AWS licensee must provide the BRS licensee with 
equivalent data loading bits per second (bps). AWS licensees must 
provide BRS licensees with enough throughput to satisfy the BRS 
licensee's system use at the time of relocation, not match the total 
capacity of the BRS system.
    (2) Reliability. System reliability is the degree to which 
information is transferred accurately within a system. AWS licensees 
must provide BRS 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 video transmissions, it is 
measured by whether the end-to-end transmission delay is within the 
required delay bound.
    (3) Operating costs. Operating costs are the cost to operate and 
maintain the BRS system. AWS licensees must compensate BRS licensees 
for any increased recurring costs associated with the replacement 
facilities (e.g., additional rental payments, increased utility fees) 
for five years after relocation. AWS 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 BRS 
licensee must be equivalent to the replaced system in order for the 
replacement system to be considered comparable.
    (c) AWS licensees are responsible for the relocation costs of end 
user units served by the BRS base station that is being relocated. If a 
lessee is operating under a BRS license, the AWS licensee shall on the 
throughput, reliability, and operating costs of facilities in use by a 
lessee at the time of relocation in determining comparable facilities 
for involuntary relocation purposes.
    (d) Twelve-month trial period. If, within one year after the 
relocation to new facilities, the BRS licensee demonstrates that the 
new facilities are not comparable to the former facilities, the AWS 
licensee must remedy the defects or pay to relocate the BRS licensee to 
one of the following: Its former or equivalent 2 GHz channels, another 
comparable frequency band, a land-line system, or any other facility 
that satisfies the requirements specified in paragraph (b) of this 
section. This trial period commences on the date that the BRS licensee 
begins full operation of the replacement system. If the BRS licensee 
has retained its 2 GHz authorization during the trial period, it must 
return the license to the Commission at the end of the twelve months.


Sec.  27.1253  Sunset Provisions.

    (a) BRS licensees will maintain primary status in the 2150-2160/62 
MHz band unless and until an AWS licensee requires use of the spectrum. 
AWS licensees are not required to pay relocation costs after the 
relocation rules sunset (i.e. fifteen years from the date the first AWS 
license is issued in the band). Once the relocation rules sunset, an 
AWS licensee may require the incumbent to cease operations, provided 
that the AWS licensee intends to turn on a system within interference 
range of the incumbent, as determined by Sec.  27.1255. AWS licensee 
notification to the affected BRS licensee must be in writing and must 
provide the incumbent with no less than six months to vacate the 
spectrum. After the six-month notice period has expired, the BRS 
licensee must turn its license back into the Commission, unless the 
parties have entered into an agreement which allows the BRS licensee to 
continue to operate on a mutually agreed upon basis.
    (b) If the parties cannot agree on a schedule or an alternative 
arrangement, requests for extension will be accepted and reviewed on a 
case-by-case basis. The Commission will grant such extensions only if 
the incumbent can demonstrate that:
    (1) It cannot relocate within the six-month period (e.g., because 
no alternative spectrum or other reasonable option is available); and
    (2) The public interest would be harmed if the incumbent is forced 
to terminate operations.


Sec.  27.1254  Eligibility.

    (a) BRS licensees with primary status in the 2150-2162 MHz band as 
of June 23, 2006, will be eligible for relocation insofar as they have 
facilities that are constructed and in use as of this date.
    (b) Future Licensing and Modifications. After June 23, 2006, all 
major modifications to existing BRS systems in use in the 2150-2160/62 
MHz band will be authorized on a secondary basis to AWS systems, unless 
the incumbent affirmatively justifies primary status and the incumbent 
BRS licensee establishes that the modification would not add to the 
relocation costs of AWS licensees. Major modifications include the 
following:

[[Page 29842]]

    (1) Additions of new transmit sites or base stations made after 
June 23, 2006;
    (2) Changes to existing facilities made after June 23, 2006, that 
would increase the size or coverage of the service area, or 
interference potential, and that would also increase the throughput of 
an existing system (e.g., sector splits in the antenna system). 
Modifications to fully utilize the existing throughput of existing 
facilities (e.g., to add customers) will not be considered major 
modifications even if such changes increase the size or coverage of the 
service area, or interference potential.


Sec.  27.1255  Relocation Criteria for Broadband Radio Service 
Licensees in the 2150-2160/62 MHz band.

    (a) An AWS licensee in the 2150-2160/62 MHz band, prior to 
initiating operations from any base or fixed station that is co-channel 
to the 2150-2160/62 MHz band, must relocate any incumbent BRS system 
that is within the line of sight of the AWS licensee's base or fixed 
station. For purposes of this section, a determination of whether an 
AWS facility is within the line of sight of a BRS system will be made 
as follows:
    (1) For a BRS system using the 2150-2160/62 MHz band exclusively to 
provide one-way transmissions to subscribers, the AWS licensee will 
determine whether there is an unobstructed signal path (line of sight) 
to the incumbent licensee's geographic service area (GSA), based on the 
following criteria: use of 9.1 meters (30 feet) for the receiving 
antenna height, use of the actual transmitting antenna height and 
terrain elevation, and assumption of 4/3 Earth radius propagation 
conditions. Terrain elevation data must be obtained from the U.S. 
Geological Survey (USGS) 3-second database. All coordinates used in 
carrying out the required analysis shall be based upon use of NAD-83.
    (2) For all other BRS systems using the 2150-2160/62 MHz band, the 
AWS licensee will determine whether there is an unobstructed signal 
path (line of sight) to the incumbent licensee's receive station hub 
using the method prescribed in ``Methods for Predicting Interference 
from Response Station Transmitters and to Response Station Hubs and for 
Supplying Data on Response Station Systems. MM Docket 97-217,'' in 
Amendment of Parts 1, 21 and 74 to Enable Multipoint Distribution 
Service and Instructional Television Fixed Service Licensees to Engage 
in Fixed Two-Way Transmissions, MM Docket No. 97-217, Report and Order 
on Further Reconsideration and Further Notice of Proposed Rulemaking, 
15 FCC Rcd 14566 at 14610, Appendix D.
    (b) Any AWS licensee in the 2110-2180 MHz band that causes actual 
and demonstrable interference to a BRS licensee in the 2150-2160/62 MHz 
band must take steps to eliminate the harmful interference, up to and 
including relocation of the BRS licensee, regardless of whether it 
would be required to do so under paragraph (a), of this section.

PART 101--FIXED MICROWAVE SERVICES

0
The authority citation for part 101 continues to read as follows:

    Authority: 47 U.S.C. 154, 303.

0
9. Section 101.69 is amended by removing and reserving paragraphs (b) 
and (c) and adding paragraph (g) to read as follows:


Sec.  101.69  Transition of the 1850-1990 MHz, 2110-2150 MHz, and 2160-
2200 MHz bands from the fixed microwave services to personal 
communications services and emerging technologies.

* * * * *
    (g) If no agreement is reached during the mandatory negotiation 
period, an ET licensee may initiate involuntary relocation procedures. 
Under involuntary relocation, the incumbent is required to relocate, 
provided that the ET licensee meets the conditions of Sec.  101.75.


Sec.  101.71  [Removed and Reserved]

0
7. Section 101.71 is removed and reserved.

0
8. Section 101.73 is amended by revising paragraphs (a) and the 
introductory text to paragraph (d) to read as follows:


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.
* * * * *
    (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:
* * * * *

0
9. Section 101.75 is amended by revising paragraph (a) introductory 
text to read as follows:


Sec.  101.75  Involuntary relocation procedures.

    (a) If no agreement is reached during the mandatory negotiation 
period, an ET licensee may initiate involuntary relocation procedures 
under the Commission's rules. ET licensees are obligated to pay to 
relocated only the specific microwave links to which their systems pose 
an interference problem. Under involuntary relocation, the FMS licensee 
is required to relocate, provided that the ET licensee:
* * * * *

0
10. Section 101.77 is amended by revising the introductory text to 
paragraph (a) to read as follows:


Sec.  101.77  Public safety licensees in the 1850-1990 MHz, 2110-2150 
MHz, and 2160-2200 MHz bands.

    (a) In order for public safety licensees to qualify for a three 
year mandatory negotiation period as defined in Sec.  101.69(d)(2), the 
department head responsible for system oversight must certify to the ET 
licensee requesting relocation that:
* * * * *

0
11. Section 101.79 is amended by revising paragraph (a) to read as 
follows:


Sec.  101.79  Sunset provisions for licensees in the 1850-1990 MHz, 
2110-2150 MHz, and 2160-2200 MHz bands.

    (a) FMS licensees will maintain primary status in the 1850-1990 
MHz, 2110-2150 MHz, and 2160-2200 MHz bands unless and until an ET 
licensee (including MSS/ATC operator) requires use of the spectrum. ET 
licensees are not required to pay relocation costs after the relocation 
rules sunset. Once the relocation rules sunset, an ET licensee may 
require the incumbent to cease operations, provided that the ET 
licensee intends to turn on a system within interference range of the 
incumbent, as determined by TIA TSB 10-F (for terrestrial-to-
terrestrial situations) or TIA TSB 86 (for MSS satellite-to-terrestrial 
situations) or any standard successor. ET licensee notification to the 
affected FMS licensee must be in writing and must provide the incumbent 
with no less than six months to vacate the spectrum. After the six-
month notice period has expired, the FMS licensee must turn its license 
back

[[Page 29843]]

into the Commission, unless the parties have entered into an agreement 
which allows the FMS licensee to continue to operate on a mutually 
agreed upon basis. The date that the relocation rules sunset is 
determined as follows:
    (1) For the 2110-2150 MHz and 2160-2175 MHz and 2175-2180 MHz 
bands, ten years after the first ET license is issued in the respective 
band; and
    (2) For the 2180-2200 MHz band, December 8, 2013 (i.e., ten years 
after the mandatory negotiation period begins for MSS/ATC operators in 
the service).
* * * * *

0
12. Section 101.82 is revised to read as follows:


Sec.  101.82  Reimbursement and relocation expenses in the 2110-2150 
MHz and 2160-2200 MHz bands.

    (a) Reimbursement and relocation expenses for the 2110-2130 MHz and 
2160-2180 MHz bands are addressed in Sec. Sec.  27.1160-27.1174.
    (b) Cost-sharing obligations between AWS and MSS (space-to-Earth 
downlink). Whenever an ET licensee (AWS or Mobile Satellite Service for 
space-to-Earth downlink in the 2130-2150 or 2180-2200 MHz bands) 
relocates an incumbent paired microwave link with one path in the 2130-
2150 MHz band and the paired path in the 2180-2200 MHz band, the 
relocator is entitled to reimbursement of 50 percent of its relocation 
costs (see paragraph (e)) of this section from any other AWS licensee 
or MSS space-to-Earth downlink operator which would have been required 
to relocate the same fixed microwave link as set forth in paragraphs 
(c) and (d) of this section.
    (c) Cost-sharing obligations for MSS (space-to-Earth downlinks). 
For an MSS space-to-Earth downlink, the cost-sharing obligation is 
based on the interference criteria for relocation, i.e., TIA TSB 86 or 
any standard successor, relative to the relocated microwave link. 
Subsequently entering MSS space-to-Earth downlink operators must 
reimburse AWS or MSS space-to-Earth relocators (see paragraph (e)) of 
this section before the later entrant may begin operations in these 
bands, unless the later entrant can demonstrate that it would not have 
interfered with the microwave link in question.
    (d) Cost-sharing obligations among terrestrial stations. For 
terrestrial stations (AWS and MSS Ancillary Terrestrial Component 
(ATC)), cost-sharing obligations are governed by Sec. Sec.  27.1160 
through 27.1174 of this chapter; provided, however, that MSS operators 
(including MSS/ATC operators) are not obligated to reimburse 
voluntarily relocating FMS incumbents in the 2180-2200 MHz band. (AWS 
reimbursement and cost-sharing obligations relative to voluntarily 
relocating FMS incumbents are governed by Sec.  27.1166 of this 
chapter).
    (e) The total costs of which 50 percent is to be reimbursed will 
not exceed $250,000 per paired fixed microwave link relocated, with an 
additional $150,000 permitted if a new or modified tower is required.

[FR Doc. 06-4769 Filed 5-23-06; 8:45 am]
BILLING CODE 6712-01-P