§ 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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