§ 90.677   Reconfiguration of the 806-824/851-869 MHz band in order to separate
cellular systems from non-cellular systems.

   In order to facilitate reconfiguration of the 806-824/851-869 MHz band (“800
   MHz band”) to separate high-density cellular systems from non-cellular
   systems, Nextel Communications, Inc. (Nextel) may relocate incumbents within
   the 800 MHz band by providing “comparable facilities.” For the limited
   purpose of band reconfiguration, the provisions of § 90.157 shall not apply
   and inter-category sharing will be permitted under all circumstances. Such
   relocation is subject to the following provisions:

   (a)  Within  thirty  days  of  Commission  approval  of the Transition
   Administrator,  the Transition Administrator described in § 90.676 will
   provide the Commission with a schedule detailing when band reconfiguration
   shall commence for each NPSPAC Region. The plan should also detail—by NPSPAC
   Region—which relocation option each non-Nextel ESMR licensees has chosen.
   The Chief, Public Safety and Homeland Security Bureau will finalize and
   approve such a plan. The schedule shall provide for completion of band
   reconfiguration in no more than thirty-six months following release of a
   public notice announcing the start date of reconfiguration in the first
   NPSPAC region. Relocation will commence according to the schedule set by the
   Transition Administrator but all systems must have commenced reconfiguration
   within thirty months of release of a public notice announcing the start date
   of reconfiguration in the first NPSPAC region.

   (b) Voluntary negotiations. Thirty days before the start date for each
   NPSPAC region other than Region 47 and Region 48, the Chief, Public Safety
   and  Homeland  Security Bureau will issue a public notice initiating a
   three-month voluntary negotiation period. During this voluntary negotiation
   period, Nextel and all incumbents may negotiate any mutually agreeable
   relocation agreement. Sprint Nextel and relocating incumbents may agree to
   conduct face-to-face negotiations or either party may elect to communicate
   with the other party through the Transition Administrator.

   (c) Mandatory negotiations. If no agreement is reached by the end of the
   voluntary period, a three-month mandatory negotiation period will begin
   during which both Sprint Nextel and the incumbents must negotiate in “good
   faith.” In Region 47, a 90-day mandatory negotiation period will begin 60
   days  after the effective date of the Third Report and Order and Third
   Further Notice of Proposed Rulemaking in WT Docket 02-55. In Region 48, a
   90-day mandatory negotiation period will begin on March 21, 2011. Sprint
   Nextel  and  relocating  incumbents  may agree to conduct face-to-face
   negotiations or either party may elect to communicate with the other party
   through the Transition Administrator. All parties are charged with the
   obligation of utmost “good faith” in the negotiation 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 Transition Administrator may schedule mandatory settlement
   negotiations and mediation sessions and the parties must conform to such
   schedules.

   (d) Transition Administrator. (1) The Transition Administrator, or other
   mediator,  shall attempt to resolve disputes referred to it before the
   conclusion of the mandatory negotiation period as described in § 90.677(c)
   within thirty working days after the Transition Administrator has received a
   submission by one party and a response from the other party. Any party
   thereafter  may  seek  expedited non-binding arbitration which must be
   completed within thirty days of the Transition Administrator's, or other
   mediator's  recommended decision or advice. Should issues still remain
   unresolved after mediation or arbitration they shall be referred to the
   Chief, Public Safety and Homeland Security Bureau within ten days of the
   Transition Administrator's or other mediator's advice, or if arbitration has
   occurred, within ten days of the completion of arbitration. When referring
   an unresolved matter to the Chief, Public Safety and Homeland Security
   Bureau, the Transition Administrator shall forward the entire record on any
   disputed issues, including such dispositions thereof that the Transition
   Administrator has considered. Upon receipt of such record and advice, the
   Commission will decide the disputed issues based on the record submitted.
   The authority to make such decisions is delegated to the Chief, Public
   Safety and Homeland Security Bureau who may decide the disputed issue or
   designate it for an evidentiary hearing before an Administrative Law Judge.
   If the Chief, Public Safety and Homeland Security Bureau decides an issue,
   any party to the dispute wishing to appeal the decision may do so by filing
   with the Commission, within ten days of the effective date of the initial
   decision, a Petition for de novo review; whereupon the matter will be set
   for an evidentiary hearing before an Administrative Law Judge. Any disputes
   submitted  to the Transition Administrator after the conclusion of the
   mandatory negotiation period as described in § 90.677(c) shall be resolved as
   described in § 90.677(d)(2).

   (2) If no agreement is reached during either the voluntary or mandatory
   negotiating periods, all disputed issues shall be referred to the Transition
   Administrator, or other mediator, who shall attempt to resolve them. If
   disputed issues remain thirty working days after the end of the mandatory
   negotiation period, the Transition Administrator shall forward the record to
   the Chief, Public Safety and Homeland Security Bureau, together with advice
   on how the matter(s) may be resolved. The Chief, Public Safety and Homeland
   Security  Bureau is hereby delegated the authority to rule on disputed
   issues, de novo. If the Chief, Public Safety and Homeland Security Bureau
   decides an issue, any party to the dispute wishing to appeal the decision
   may do so by filing with the Commission, within ten days of the effective
   date of the initial decision, a Petition for de novo review; whereupon the
   matter will be set for an evidentiary hearing before an Administrative Law
   Judge.

   (e) Waiver Requests. Incumbents who wish not to relocate according to the
   schedule  may  petition  the Commission for a waiver of the relocation
   obligation. Such a waiver would only be granted on a strict non-interference
   basis.

   (f) Comparable Facilities. The replacement system provided to an incumbent
   must be at least equivalent to the existing 800 MHz system with respect to
   the four factors described in § 90.699(d) part.

   (g) Information Exchange. Absent agreement between parties, the Transition
   Administrator will be responsible for determining the information that
   relocating incumbents must supply in support of a relocation agreement.

   (h)  The relevant Regional Planning Committee shall be informed of any
   proposed changes to any NPSPAC channel.

   [ 69 FR 67849 , Nov. 22, 2004, as amended at  70 FR 76711 , Dec. 28, 2005;  71 FR 52751 , Sept. 7, 2006;  71 FR 69038 , Nov. 29, 2006;  75 FR 35318 , June 22,
   2010;  76 FR 11683 , Mar. 3, 2011]

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Policies Governing the Licensing and Use of EA-Based SMR Systems in the
809-824/851-869 MHz Band

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