Advanced Wireless Services, 29818-29843 [06-4769]

Agencies

• FEDERAL COMMUNICATIONS COMMISSION

[Federal Register Volume 71, Number 100 (Wednesday, May 24, 2006)]
[Rules and Regulations]
[Pages 29818-29843]
From the Federal Register Online via the Government Printing 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 https://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 FCC@BCPIWEB.COM.

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 ar