§ 923 — Identification Of Reallocable Frequencies

(a) 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. (1) In accordance with the provisions of this section, the Secretary shall recommend for reallocation in the initial report required by subsection (a), 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). Such bands of frequencies shall include bands of frequencies, located below 3 gigahertz, that span in the aggregate not less than 100 megahertz. (2) Bands of frequencies which a report of the Secretary under subsection (a) or (d)(1) 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) In accordance with the provisions of this section, the Secretary shall recommend for reallocation in the second report required by subsection (a), 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). (1) In determining whether a band of frequencies meets the criteria specified in subsection (a)(2), 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)); (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) In determining whether a frequency band meets the criteria specified in subsection (a)(3), 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) In determining whether a band of frequencies meets the criteria specified in subsection (a)(5), 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. (A) The criteria specified by subsection (a) 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) The frequencies assigned to any Federal power agency may only be eligible for mixed use under subsection (b)(2) 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) 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) 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. (1) 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) 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) 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) 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). (1) The Secretary shall, as part of the reports required by subsections (a) and (d)(1), include a timetable that recommends effective dates by which the President shall withdraw or limit assignments of the frequencies specified in such reports. (A) The Secretary shall, as part of the report required by subsection (d)(1), 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), and that can be made available for reallocation immediately upon issuance of the report required by subsection (d)(1). Such bands of frequencies shall include bands of frequencies, located below 3 gigahertz, that in the aggregate span not less than 25 megahertz. (B) 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), but such bands of frequencies may not count toward the minimums required by subparagraph (A). (3) 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) 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. (1) Any Federal entity that operates a Federal Government station that incurs relocation or sharing costs because of planning for an auction of eligible spectrum frequencies or the reallocation of eligible spectrum frequencies from Federal use to exclusive non-Federal use or to shared use shall receive payment for such relocation or sharing costs from the Spectrum Relocation Fund, in accordance with this section and section 928 of this title. For purposes of this paragraph, Federal power agencies exempted under subsection (c)(4) that choose to relocate from the frequencies identified for reallocation pursuant to subsection (a) are eligible to receive payment under this paragraph. (2) 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 or to shared 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)). (A) For purposes of this section and section 928 of this title, the term “relocation or sharing costs” means the costs incurred by a Federal entity in connection with the auction of spectrum frequencies or the sharing of spectrum frequencies (including the auction or a planned auction of the rights to use spectrum frequencies on a shared basis with such entity) in order to achieve comparable capability of systems as before the relocation or sharing arrangement. Such term includes, with respect to relocation or sharing, as the case may be— (i) the costs of any modification or replacement of equipment, spares, associated ancillary equipment, software, facilities, operating manuals, training, or compliance with regulations that are attributable to relocation or sharing; (ii) the costs of all engineering, equipment, software, site acquisition, and construction, as well as any legitimate and prudent transaction expense, including term-limited Federal civil servant and contractor staff necessary to carry out the relocation or sharing activities of a Federal entity, and reasonable additional costs incurred by the Federal entity that are attributable to relocation or sharing, including increased recurring costs associated with the replacement of facilities; (iii) the costs of research, engineering studies, economic analyses, or other expenses reasonably incurred in connection with— (I) calculating the estimated relocation or sharing costs that are provided to the Commission pursuant to paragraph (4)(A); (II) determining the technical or operational feasibility of relocation to 1 or more potential relocation bands; or (III) planning for or managing a relocation or sharing arrangement (including spectrum coordination with auction winners); (iv) the one-time costs of any modification of equipment reasonably necessary— (I) to accommodate non-Federal use of shared frequencies; or (II) in the case of eligible frequencies reallocated for exclusive non-Federal use and assigned through a system of competitive bidding under section 309(j) of the Communications Act of 1934 (47 U.S.C. 309(j)) but with respect to which a Federal entity retains primary allocation or protected status for a period of time after the completion of the competitive bidding process, to accommodate shared Federal and non-Federal use of such frequencies for such period; and (v) the costs associated with the accelerated replacement of systems and equipment if the acceleration is necessary to ensure the timely relocation of systems to a new frequency assignment or the timely accommodation of sharing of Federal frequencies. (B) For purposes of subparagraph (A), comparable capability of systems— (i) may be achieved by relocating a Federal Government station to a new frequency assignment, by relocating a Federal Government station to a different geographic location, by modifying Federal Government equipment to mitigate interference or use less spectrum, in terms of bandwidth, geography, or time, and thereby permitting spectrum sharing (including sharing among relocated Federal entities and incumbents to make spectrum available for non-Federal use) or relocation, or by utilizing an alternative technology; and (ii) includes the acquisition of state-of-the-art replacement systems intended to meet comparable operational scope, which may include incidental increases in functionality. (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 or sharing costs and timelines for such relocation or sharing. (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 or sharing 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) 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 or sharing. Unless disapproved within 30 days, the estimate shall be approved. If disapproved, the NTIA may resubmit a revised initial estimate. (6) The NTIA shall take such actions as necessary to ensure the timely relocation of Federal entities’ spectrum-related operations from frequencies described in paragraph (2) to frequencies or facilities of comparable capability and to ensure the timely implementation of arrangements for the sharing of frequencies described in such paragraph. Upon a finding by the NTIA that a Federal entity has achieved comparable capability of systems, the NTIA shall terminate or limit the entity’s authorization and notify the Commission that the entity’s relocation has been completed or sharing arrangement has been implemented. 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 or sharing submitted by the Director of the Office of Management and Budget under section 928(d)(2)(C) of this title. (1) Not later than 240 days before the commencement of any auction of eligible frequencies described in subsection (g)(2), a Federal entity shall submit to the NTIA and to the Technical Panel established by paragraph (3) a transition plan for the implementation by such entity of the relocation or sharing arrangement. The NTIA shall specify, after public input, a common format for all Federal entities to follow in preparing transition plans under this paragraph. (2) The transition plan required by paragraph (1) shall include the following information: (A) The use by the Federal entity of the eligible frequencies to be auctioned, current as of the date of the submission of the plan. (B) The geographic location of the facilities or systems of the Federal entity that use such frequencies. (C) The frequency bands used by such facilities or systems, described by geographic location. (D) The steps to be taken by the Federal entity to relocate its spectrum use from such frequencies or to share such frequencies, including timelines for specific geographic locations in sufficient detail to indicate when use of such frequencies at such locations will be discontinued by the Federal entity or shared between the Federal entity and non-Federal users. (E) The specific interactions between the eligible Federal entity and the NTIA needed to implement the transition plan. (F) The name of the officer or employee of the Federal entity who is responsible for the relocation or sharing efforts of the entity and who is authorized to meet and negotiate with non-Federal users regarding the transition. (G) The plans and timelines of the Federal entity for— (i) using funds received from the Spectrum Relocation Fund established by section 928 of this title; (ii) procuring new equipment and additional personnel needed for relocation or sharing; (iii) field-testing and deploying new equipment needed for relocation or sharing; and (iv) hiring and relying on contract personnel, if any, needed for relocation or sharing. (H) Factors that could hinder fulfillment of the transition plan by the Federal entity. (A) There is established within the NTIA a panel to be known as the Technical Panel. (i) The Technical Panel shall be composed of 3 members, to be appointed as follows: (I) One member to be appointed by the Director of the Office of Management and Budget (in this subsection referred to as “OMB”). (II) One member to be appointed by the Assistant Secretary. (III) One member to be appointed by the Chairman of the Commission. (ii) Each member of the Technical Panel shall be a radio engineer or a technical expert. (iii) The initial members of the Technical Panel shall be appointed not later than 180 days after February 22, 2012. (iv) The term of a member of the Technical Panel shall be 18 months, and no individual may serve more than 1 consecutive term. (v) Any member appointed to fill a vacancy occurring before the expiration of the term for which the member’s predecessor was appointed shall be appointed only for the remainder of that term. A member may serve after the expiration of that member’s term until a successor has taken office. A vacancy shall be filled in the manner in which the original appointment was made. (vi) The members of the Technical Panel shall not receive any compensation for service on the Technical Panel. If any such member is an employee of the agency of the official that appointed such member to the Technical Panel, compensation in the member’s capacity as such an employee shall not be considered compensation under this clause. (C) The NTIA shall provide the Technical Panel with the administrative support services necessary to carry out its duties under this subsection, subsection (i), and section 928(g)(2)(E) of this title. (D) Not later than 180 days after February 22, 2012, the NTIA shall, after public notice and comment and subject to approval by the Director of OMB, adopt regulations to govern the workings of the Technical Panel. (E) Chapter 10 of title 5 and sections 552 and 552b of title 5 shall not apply to the Technical Panel. (A) Not later than 30 days after the submission of the plan under paragraph (1), the Technical Panel shall submit to the NTIA and to the Federal entity a report on the sufficiency of the plan, including whether the plan includes the information required by paragraph (2) and an assessment of the reasonableness of the proposed timelines and estimated relocation or sharing costs, including the costs of any proposed expansion of the capabilities of a Federal system in connection with relocation or sharing. (B) If the Technical Panel finds the plan insufficient, the Federal entity shall, not later than 90 days after the submission of the report by the Technical Panel under subparagraph (A), submit to the Technical Panel a revised plan. Such revised plan shall be treated as a plan submitted under paragraph (1). (5) Not later than 120 days before the commencement of the auction described in paragraph (1), the NTIA shall make the transition plan publicly available on its website. (6) As the Federal entity implements the transition plan, it shall periodically update the plan to reflect any changed circumstances, including changes in estimated relocation or sharing costs or the timeline for relocation or sharing. The NTIA shall make the updates available on its website. (A) If any of the information required to be included in the transition plan of a Federal entity is classified information (as defined in section 798(b) of title 18), the entity shall— (i) include in the plan— (I) an explanation of the exclusion of any such information, which shall be as specific as possible; and (II) all relevant non-classified information that is available; and (ii) discuss as a factor under paragraph (2)(H) the extent of the classified information and the effect of such information on the implementation of the relocation or sharing arrangement. (B) Not later than 180 days after February 22, 2012, the NTIA, in consultation with the Director of OMB and the Secretary of Defense, shall adopt regulations to ensure that the information publicly released under paragraph (5) or (6) does not contain classified information or other sensitive information. (1) If a dispute arises between a Federal entity and a non-Federal user regarding the execution, timing, or cost of the transition plan submitted by the Federal entity under subsection (h)(1), the Federal entity or the non-Federal user may request that the NTIA establish a dispute resolution board to resolve the dispute. (A) If the NTIA receives a request under paragraph (1), it shall establish a dispute resolution board. (B) The dispute resolution board shall be composed of 3 members, as follows: (i) A representative of the Office of Management and Budget (in this subsection referred to as “OMB”), to be appointed by the Director of OMB. (ii) A representative of the NTIA, to be appointed by the Assistant Secretary. (iii) A representative of the Commission, to be appointed by the Chairman of the Commission. (C) The representative of OMB shall be the Chair of the dispute resolution board. (D) Any vacancy in the dispute resolution board shall be filled in the manner in which the original appointment was made. (E) The members of the dispute resolution board shall not receive any compensation for service on the board. If any such member is an employee of the agency of the official that appointed such member to the board, compensation in the member’s capacity as such an employee shall not be considered compensation under this subparagraph. (F) The dispute resolution board shall be terminated after it rules on the dispute that it was established to resolve and the time for appeal of its decision under paragraph (7) has expired, unless an appeal has been taken under such paragraph. If such an appeal has been taken, the board shall continue to exist until the appeal process has been exhausted and the board has completed any action required by a court hearing the appeal. (3) The dispute resolution board shall meet simultaneously with representatives of the Federal entity and the non-Federal user to discuss the dispute. The dispute resolution board may require the parties to make written submissions to it. (4) The dispute resolution board shall rule on the dispute not later than 30 days after the request was made to the NTIA under paragraph (1). (5) The Technical Panel established under subsection (h)(3) shall provide the dispute resolution board with such technical assistance as the board requests. (6) The NTIA shall provide the dispute resolution board with the administrative support services necessary to carry out its duties under this subsection. (7) A decision of the dispute resolution board may be appealed to the United States Court of Appeals for the District of Columbia Circuit by filing a notice of appeal with that court not later than 30 days after the date of such decision. Each party shall bear its own costs and expenses, including attorneys’ fees, for any appeal under this paragraph. (8) Not later than 180 days after February 22, 2012, the NTIA shall, after public notice and comment and subject to approval by OMB, adopt regulations to govern the working of any dispute resolution boards established under paragraph (2)(A) and the role of the Technical Panel in assisting any such board. (9) Chapter 10 of title 5 and sections 552 and 552b of title 5 shall not apply to a dispute resolution board established under paragraph (2)(A). (1) In evaluating a band of frequencies for possible reallocation for exclusive non-Federal use or shared use, the NTIA shall give priority to options involving reallocation of the band for exclusive non-Federal use and shall choose options involving shared use only when it determines, in consultation with the Director of the Office of Management and Budget, that relocation of a Federal entity from the band is not feasible because of technical or cost constraints. (2) If the NTIA determines under paragraph (1) that relocation of a Federal entity from the band is not feasible, the NTIA shall notify the Committee on Commerce, Science, and Transportation of the Senate and the Committee on Energy and Commerce of the House of Representatives of the determination, including the specific technical or cost constraints on which the determination is based. (k) 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) 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. (l) 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).