47 U.S.C. § 923 : US Code - Section 923: Identification of reallocable frequencies

Search 47 U.S.C. § 923 : US Code - Section 923: Identification of reallocable frequencies

(a) Identification required
The Secretary shall, within 18 months after August 10, 1993, and
within 6 months after August 5, 1997, prepare and submit to the
President and the Congress a report identifying and recommending
for reallocation bands of frequencies -
(1) that are allocated on a primary basis for Federal
Government use;
(2) that are not required for the present or identifiable
future needs of the Federal Government;
(3) that can feasibly be made available, as of the date of
submission of the report or at any time during the next 15 years,
for use under the 1934 Act [47 U.S.C. 151 et seq.] (other than
for Federal Government stations under section 305 of the 1934 Act
[47 U.S.C. 305]);
(4) the transfer of which (from Federal Government use) will
not result in costs to the Federal Government, or losses of
services or benefits to the public, that are excessive in
relation to the benefits to the public that may be provided by
non-Federal licensees; and
(5) that are most likely to have the greatest potential for
productive uses and public benefits under the 1934 Act [47 U.S.C.
151 et seq.] if allocated for non-Federal use.
(b) Minimum amount of spectrum recommended
(1) Initial reallocation report
In accordance with the provisions of this section, the
Secretary shall recommend for reallocation in the initial report
required by subsection (a) of this section, for use other than by
Federal Government stations under section 305 of the 1934 Act (47
U.S.C. 305), bands of frequencies that in the aggregate span not
less than 200 megahertz, that are located below 5 gigahertz, and
that meet the criteria specified in paragraphs (1) through (5) of
subsection (a) of this section. Such bands of frequencies shall
include bands of frequencies, located below 3 gigahertz, that
span in the aggregate not less than 100 megahertz.
(2) Mixed uses permitted to be counted
Bands of frequencies which a report of the Secretary under
subsection (a) or (d)(1) of this section recommends be partially
retained for use by Federal Government stations, but which are
also recommended to be reallocated to be made available under the
1934 Act [47 U.S.C. 151 et seq.] for use by non-Federal stations,
may be counted toward the minimum spectrum required by paragraph
(1) or (3) of this subsection, except that -
(A) the bands of frequencies counted under this paragraph may
not count toward more than one-half of the minimums required by
paragraph (1) or (3) of this subsection;
(B) a band of frequencies may not be counted under this
paragraph unless the assignments of the band to Federal
Government stations under section 305 of the 1934 Act (47
U.S.C. 305) are limited by geographic area, by time, or by
other means so as to guarantee that the potential use to be
made by such Federal Government stations is substantially less
(as measured by geographic area, time, or otherwise) than the
potential use to be made by non-Federal stations; and
(C) the operational sharing permitted under this paragraph
shall be subject to the interference regulations prescribed by
the Commission pursuant to section 305(a) of the 1934 Act [47
U.S.C. 305(a)] and to coordination procedures that the
Commission and the Secretary shall jointly establish and
implement to ensure against harmful interference.
(3) Second reallocation report
In accordance with the provisions of this section, the
Secretary shall recommend for reallocation in the second report
required by subsection (a) of this section, for use other than by
Federal Government stations under section 305 of the 1934 Act (47
U.S.C. 305), a band or bands of frequencies that -
(A) in the aggregate span not less than 12 megahertz;
(B) are located below 3 gigahertz; and
(C) meet the criteria specified in paragraphs (1) through (5)
of subsection (a) of this section.
(c) Criteria for identification
(1) Needs of the Federal Government
In determining whether a band of frequencies meets the criteria
specified in subsection (a)(2) of this section, the Secretary
shall -
(A) consider whether the band of frequencies is used to
provide a communications service that is or could be available
from a commercial provider or other vendor;
(B) seek to promote -
(i) the maximum practicable reliance on commercially
available substitutes;
(ii) the sharing of frequencies (as permitted under
subsection (b)(2) of this section);
(iii) the development and use of new communications
technologies; and
(iv) the use of nonradiating communications systems where
practicable; and
(C) seek to avoid -
(i) serious degradation of Federal Government services and
operations;
(ii) excessive costs to the Federal Government and users of
Federal Government services; and
(iii) excessive disruption of existing use of Federal
Government frequencies by amateur radio licensees.
(2) Feasibility of use
In determining whether a frequency band meets the criteria
specified in subsection (a)(3) of this section, the Secretary
shall -
(A) assume that the frequency will be assigned by the
Commission under section 303 of the 1934 Act (47 U.S.C. 303)
within 15 years;
(B) assume reasonable rates of scientific progress and growth
of demand for telecommunications services;
(C) seek to include frequencies which can be used to
stimulate the development of new technologies; and
(D) consider the immediate and recurring costs to reestablish
services displaced by the reallocation of spectrum.
(3) Analysis of benefits
In determining whether a band of frequencies meets the criteria
specified in subsection (a)(5) of this section, the Secretary
shall consider -
(A) the extent to which equipment is or will be available
that is capable of utilizing the band;
(B) the proximity of frequencies that are already assigned
for commercial or other non-Federal use;
(C) the extent to which, in general, commercial users could
share the frequency with amateur radio licensees; and
(D) the activities of foreign governments in making
frequencies available for experimentation or commercial
assignments in order to support their domestic manufacturers of
equipment.
(4) Power agency frequencies
(A) Applicability of criteria
The criteria specified by subsection (a) of this section
shall be deemed not to be met for any purpose under this
subchapter with regard to any frequency assignment to, or any
frequency assignment used by, a Federal power agency for the
purpose of withdrawing that assignment.
(B) Mixed use eligibility
The frequencies assigned to any Federal power agency may only
be eligible for mixed use under subsection (b)(2) of this
section in geographically separate areas, but in those cases
where a frequency is to be shared by an affected Federal power
agency and a non-Federal user, such use by the non-Federal user
shall not cause harmful interference to the affected Federal
power agency or adversely affect the reliability of its power
system.
(C) "Federal power agency" defined
As used in this paragraph, the term "Federal power agency"
means the Tennessee Valley Authority, the Bonneville Power
Administration, the Western Area Power Administration, the
Southwestern Power Administration, the Southeastern Power
Administration, or the Alaska Power Administration.
(5) Limitation on reallocation
None of the frequencies recommended for reallocation in the
reports required by this subsection shall have been recommended,
prior to August 10, 1993, for reallocation to non-Federal use by
international agreement.
(d) Procedure for identification of reallocable bands of
frequencies
(1) Submission of preliminary identification to Congress
Within 6 months after August 10, 1993, the Secretary shall
prepare, make publicly available, and submit to the President,
the Congress, and the Commission a report which makes a
preliminary identification of reallocable bands of frequencies
which meet the criteria established by this section.
(2) Public comment
The Secretary shall provide interested persons with the
opportunity to submit, within 90 days after the date of its
publication, written comment on the preliminary report required
by paragraph (1). The Secretary shall immediately transmit a copy
of any such comment to the Commission.
(3) Comment and recommendations from Commission
The Commission shall, within 90 days after the conclusion of
the period for comment provided pursuant to paragraph (2), submit
to the Secretary the Commission's analysis of such comments and
the Commission's recommendations for responses to such comments,
together with such other comments and recommendations as the
Commission deems appropriate.
(4) Direct discussions
The Secretary shall encourage and provide opportunity for
direct discussions among commercial representatives and Federal
Government users of the spectrum to aid the Secretary in
determining which frequencies to recommend for reallocation. The
Secretary shall provide notice to the public and the Commission
of any such discussions, including the name or names of any
businesses or other persons represented in such discussions. A
representative of the Commission (and of the Secretary at the
election of the Secretary) shall be permitted to attend any such
discussions. The Secretary shall provide the public and the
Commission with an opportunity to comment on the results of any
such discussions prior to the submission of the initial report
required by subsection (a) of this section.
(e) Timetable for reallocation and limitation
(1) Timetable required
The Secretary shall, as part of the reports required by
subsections (a) and (d)(1) of this section, include a timetable
that recommends effective dates by which the President shall
withdraw or limit assignments of the frequencies specified in
such reports.
(2) Expedited reallocation
(A) Required reallocation
The Secretary shall, as part of the report required by
subsection (d)(1) of this section, specifically identify and
recommend for immediate reallocation bands of frequencies that
in the aggregate span not less than 50 megahertz, that meet the
criteria described in subsection (a) of this section, and that
can be made available for reallocation immediately upon
issuance of the report required by subsection (d)(1) of this
section. Such bands of frequencies shall include bands of
frequencies, located below 3 gigahertz, that in the aggregate
span not less than 25 megahertz.
(B) Permitted reallocation
The Secretary may, as part of such report, identify and
recommend bands of frequencies for immediate reallocation for a
mixed use pursuant to subsection (b)(2) of this section, but
such bands of frequencies may not count toward the minimums
required by subparagraph (A).
(3) Delayed effective dates
In setting the recommended delayed effective dates, the
Secretary shall -
(A) consider the need to reallocate bands of frequencies as
early as possible, taking into account the requirements of
paragraphs (1) and (2) of section 925(b) of this title;
(B) be based on the useful remaining life of equipment that
has been purchased or contracted for to operate on identified
frequencies;
(C) consider the need to coordinate frequency use with other
nations; and
(D) take into account the relationship between the costs to
the Federal Government of changing to different frequencies and
the benefits that may be obtained from commercial and other non-
Federal uses of the reassigned frequencies.
(f) Additional reallocation report
If the Secretary receives a notice from the Commission pursuant
to section 3002(c)(5) of the Balanced Budget Act of 1997, the
Secretary shall prepare and submit to the President, the
Commission, and the Congress a report recommending for reallocation
for use other than by Federal Government stations under section 305
of the 1934 Act (47 U.S.C. 305), bands of frequencies that are
suitable for the licensees identified in the Commission's notice.
The Commission shall, not later than one year after receipt of such
report, prepare, submit to the President and the Congress, and
implement, a plan for the immediate allocation and assignment of
such frequencies under the 1934 Act [47 U.S.C. 151 et seq.] to
incumbent licensees described in the Commission's notice.
(g) Relocation of Federal Government stations
(1) Eligible Federal entities
Any Federal entity that operates a Federal Government station
assigned to a band of frequencies specified in paragraph (2) and
that incurs relocation costs because of the reallocation of
frequencies from Federal use to non-Federal use shall receive
payment for such costs from the Spectrum Relocation Fund, in
accordance with section 928 of this title. For purposes of this
paragraph, Federal power agencies exempted under subsection
(c)(4) of this section that choose to relocate from the
frequencies identified for reallocation pursuant to subsection
(a) of this section, are eligible to receive payment under this
paragraph.
(2) Eligible frequencies
The bands of eligible frequencies for purposes of this section
are as follows:
(A) the 216-220 megahertz band, the 1432-1435 megahertz band,
the 1710-1755 megahertz band, and the 2385-2390 megahertz band
of frequencies; and
(B) any other band of frequencies reallocated from Federal
use to non-Federal use after January 1, 2003, that is assigned
by competitive bidding pursuant to section 309(j) of the
Communications Act of 1934 (47 U.S.C. 309(j)), except for bands
of frequencies previously identified by the National
Telecommunications and Information Administration in the
Spectrum Reallocation Final Report, NTIA Special Publication 95-
32 (1995).
(3) Definition of relocation costs
For purposes of this subsection, the term "relocation costs"
means the costs incurred by a Federal entity to achieve
comparable capability of systems, regardless of whether that
capability is achieved by relocating to a new frequency
assignment or by utilizing an alternative technology. Such costs
include -
(A) the costs of any modification or replacement of
equipment, software, facilities, operating manuals, training
costs, or regulations that are attributable to relocation;
(B) the costs of all engineering, equipment, software, site
acquisition and construction costs, as well as any legitimate
and prudent transaction expense, including outside consultants,
and reasonable additional costs incurred by the Federal entity
that are attributable to relocation, including increased
recurring costs associated with the replacement facilities;
(C) the costs of engineering studies, economic analyses, or
other expenses reasonably incurred in calculating the estimated
relocation costs that are provided to the Commission pursuant
to paragraph (4) of this subsection;
(D) the one-time costs of any modification of equipment
reasonably necessary to accommodate commercial use of such
frequencies prior to the termination of the Federal entity's
primary allocation or protected status, when the eligible
frequencies as defined in paragraph (2) of this subsection are
made available for private sector uses by competitive bidding
and a Federal entity retains primary allocation or protected
status in those frequencies for a period of time after the
completion of the competitive bidding process; and
(E) the costs associated with the accelerated replacement of
systems and equipment if such acceleration is necessary to
ensure the timely relocation of systems to a new frequency
assignment.
(4) Notice to Commission of estimated relocation costs
(A) The Commission shall notify the NTIA at least 18 months
prior to the commencement of any auction of eligible frequencies
defined in paragraph (2). At least 6 months prior to the
commencement of any such auction, the NTIA, on behalf of the
Federal entities and after review by the Office of Management and
Budget, shall notify the Commission of estimated relocation costs
and timelines for such relocation.
(B) Upon timely request of a Federal entity, the NTIA shall
provide such entity with information regarding an alternative
frequency assignment or assignments to which their
radiocommunications operations could be relocated for purposes of
calculating the estimated relocation costs and timelines to be
submitted to the Commission pursuant to subparagraph (A).
(C) To the extent practicable and consistent with national
security considerations, the NTIA shall provide the information
required by subparagraphs (A) and (B) by the geographic location
of the Federal entities' facilities or systems and the frequency
bands used by such facilities or systems.
(5) Notice to congressional committees and GAO
The NTIA shall, at the time of providing an initial estimate of
relocation costs to the Commission under paragraph (4)(A), submit
to (!1) Committees on Appropriations and Energy and Commerce of
the House of Representatives for approval, to the Committees on
Appropriations and Commerce, Science, and Transportation of the
Senate for approval, and to the Comptroller General a copy of
such estimate and the timelines for relocation. Unless
disapproved within 30 days, the estimate shall be approved. If
disapproved, the NTIA may resubmit a revised initial estimate.
(6) Implementation of procedures
The NTIA shall take such actions as necessary to ensure the
timely relocation of Federal entities' spectrum-related
operations from frequencies defined in paragraph (2) to
frequencies or facilities of comparable capability. Upon a
finding by the NTIA that a Federal entity has achieved comparable
capability of systems by relocating to a new frequency assignment
or by utilizing an alternative technology, the NTIA shall
terminate the entity's authorization and notify the Commission
that the entity's relocation has been completed. The NTIA shall
also terminate such entity's authorization if the NTIA determines
that the entity has unreasonably failed to comply with the
timeline for relocation submitted by the Director of the Office
of Management and Budget under section 928(d)(2)(B) of this
title.
(h) Federal action to expedite spectrum transfer
Any Federal Government station which operates on electromagnetic
spectrum that has been identified in any reallocation report under
this section shall, to the maximum extent practicable through the
use of the authority granted under subsection (g) of this section
and any other applicable provision of law, take action to relocate
its spectrum use to other frequencies that are reserved for Federal
use or to consolidate its spectrum use with other Federal
Government stations in a manner that maximizes the spectrum
available for non-Federal use.
(i) "Federal entity" defined
For purposes of this section, the term "Federal entity" means any
department, agency, or other instrumentality of the Federal
Government that utilizes a Government station license obtained
under section 305 of the 1934 Act (47 U.S.C. 305).