§  101.89   Negotiations.

   (a) The negotiation is triggered by the fixed-satellite service (FSS)
   licensee, who must contact the fixed services (FS) licensee and request
   that negotiations begin.

   (b) Once negotiations have begun, an FS licensee may not refuse to
   negotiate and all parties are required to negotiate in good faith. Good
   faith requires each party to provide information to the other that is
   reasonably necessary to facilitate the relocation process. In
   evaluating claims that a party has not negotiated in good faith, the
   FCC will consider, inter alia, the following factors:

   (1) Whether the FSS licensee has made a bona fide offer to relocate the
   FS licensee to comparable facilities in accordance with §  101.91(b);

   (2) If the FS licensee has demanded a premium, the type of premium
   requested (e.g., whether the premium is directly related to relocation,
   such as system-wide relocations and analog-to-digital conversions,
   versus other types of premiums), and whether the value of the premium
   as compared to the cost of providing comparable facilities is
   disproportionate (i.e., whether there is a lack of proportion or
   relation between the two);

   (3) What steps the parties have taken to determine the actual cost of
   relocation to comparable facilities;

   (4) Whether either party has withheld information requested by the
   other party that is necessary to estimate relocation costs or to
   facilitate the relocation process.

   (c) Any party alleging a violation of our good faith requirement must
   attach an independent estimate of the relocation costs in question to
   any documentation filed with the Commission in support of its claim. An
   independent cost estimate must include a specification for the
   comparable facility and a statement of the costs associated with
   providing that facility to the incumbent licensee.

   (d) Negotiations will commence when the FSS licensee informs the FS
   licensee in writing of its desire to negotiate. Negotiations will be
   conducted with the goal of providing the FS licensee with comparable
   facilities, defined as facilities possessing the following
   characteristics:

   (1) Throughput. Communications throughput is the amount of information
   transferred within a system in a given amount of time. If analog
   facilities are being replaced with analog, the FSS licensee is required
   to provide the FS licensee with an equivalent number of 4 kHz voice
   channels. If digital facilities are being replaced with digital, the
   FSS licensee must provide the FS licensee with equivalent data loading
   bits per second (bps). FSS licensees must provide FS licensees with
   enough throughput to satisfy the FS licensee's system use at the time
   of relocation, not match the total capacity of the FS system.

   (2) Reliability. System reliability is the degree to which information
   is transferred accurately within a system. FSS licensees must provide
   FS 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 voice transmissions, it is measured by the
   percent of time that audio signal quality meets an established
   threshold. If an analog voice system is replaced with a digital voice
   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 FS system. FSS licensees must compensate FS licensees for
   any increased recurring costs associated with the replacement
   facilities (e.g., additional rental payments, increased utility fees)
   for five years after relocation. FSS 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 FS
   licensee must be equivalent to the 18 GHz system in order for the
   replacement system to be considered comparable.

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