§  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 §  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 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.

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