The 2110–2130 and 2160–2180 MHz microwave channels formerly listed in § 22.591 have been re-allocated for use by emerging technologies (ET) services. No new systems will be authorized under this part. The rules in this section provide for a transition period during which existing Paging and Radiotelephone Service (PARS) licensees using these channels may relocate operations to other media or to other fixed channels, including those in other microwave bands. For PARS licensees relocating operations to other microwave bands, authorization must be obtained under part 101 of this chapter.
(a) Licensees proposing to implement ET services may negotiate with PARS licensees authorized to use these channels, for the purpose of agreeing to terms under which the PARS licensees would—
(1) Relocate their operations to other fixed microwave bands or other media, or alternatively,
(2) Accept a sharing arrangement with the ET licensee that may result in an otherwise impermissible level of interference to the PARS operations.
(b) [Reserved]
(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,
(1) Whether the ET licensee has made a
(2) If the PARS licensee has demanded a premium, the type of premium requested (
(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. 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.
(e)
(1) The ET applicant, provider, licensee or representative 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 PARS 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. ET licensees are not required to pay PARS licensees for internal resources devoted to the relocation process. ET licensees are not required to pay for transaction costs incurred by PARS licensees during the voluntary or mandatory periods once the involuntary period is initiated or for fees that cannot be legitimately tied to the provision of comparable facilities;
(2) The ET applicant, provider, licensee or representative completes all activities necessary for implementing the replacement facilities, including engineering and cost analysis of the relocation procedure and, if radio facilities are involved, identifying and obtaining, on the incumbents behalf, new channels and frequency coordination; and,
(3) The ET applicant, provider, licensee or representative builds the replacement system and tests it for comparability with the existing 2 GHz system.
(f)
(1)
(2)
(3)
(g) The PARS licensee is not required to relocate until the alternative facilities are available to it for a reasonable time to make adjustments, determine comparability, and ensure a seamless handoff.
(h) [Reserved]
(i) After April 25, 1996, all major modifications and extensions to existing PARS systems operating on channels in the 2110–2130 and 2160–2180 MHz bands will be authorized on a secondary basis to future ET operations. All other modifications will render the modified PARS license secondary to future ET operations unless the incumbent affirmatively justifies primary status and the incumbent PARS licensee establishes that the modification would not add to the relocation costs of ET licensees. Incumbent PARS licensees will maintain primary status for the following technical changes:
(1) Decreases in power;
(2) Minor changes (increases or decreases) in antenna height;
(3) Minor location changes (up to two seconds);
(4) Any data correction which does not involve a change in the location of an existing facility;
(5) Reductions in authorized bandwidth;
(6) Minor changes (increases or decreases) in structure height;
(7) Changes (increases or decreases) in ground elevation that do not affect centerline height;
(8) Minor equipment changes.
(j)
(1) It cannot relocate within the six-month period (
(2) The public interest would be harmed if the incumbent is forced to terminate operations (
(k)