USC - Identification of reallocable frequencies

View all text of Subchapter II [§ 921 - § 929]

§ 923. Identification of reallocable frequencies

(a) Identification requiredThe 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

(2) Mixed uses permitted to be countedBands 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) Second reallocation reportIn 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

(1) Needs of the Federal GovernmentIn 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

(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 useIn 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;

(D) consider the immediate and recurring costs to reestablish services displaced by the reallocation of spectrum.

(3) Analysis of benefitsIn 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;

(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

(B) Mixed use eligibility

(5) Limitation on reallocation

(d) Procedure for identification of reallocable bands of frequencies

(1) Submission of preliminary identification to Congress

(2) Public comment

(3) Comment and recommendations from Commission

(4) Direct discussions

(e) Timetable for reallocation and limitation

(1) Timetable required

(2) Expedited reallocation

(A) Required reallocation

(B) Permitted reallocation

(3) Delayed effective datesIn 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;

(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

(g) Relocation of and spectrum sharing by Federal Government stations

(1) Eligible Federal entities

(2) Eligible frequenciesThe 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)).

(3) Relocation or sharing costs defined

(A) In generalFor 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 t

(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) Comparable capability of systemsFor 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.

(4) Notice to Commission of estimated relocation or sharing 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 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) Notice to congressional committees and GAO

(6) Implementation of procedures

(h) Development and publication of relocation or sharing transition plans

(1) Development of transition plan by Federal entity

(2) Contents of transition planThe 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.

(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.

(3) Technical Panel

(A) Establishment

(B) Membership

(i) Number and appointmentThe 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) Qualifications

(iii) Initial appointment

(iv) Terms

(v) Vacancies

(vi) No compensation

(D) Regulations

(E) Certain requirements inapplicable

(4) Review of plan by Technical Panel

(A) In general

(B) Insufficiency of plan

(5) Publication of transition plan

(6) Updates of transition plan

(7) Classified and other sensitive information

(A) Classified informationIf 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) Regulations

(i) Dispute resolution process

(1) In general

(2) Establishment of board

(A) In general

(B) Membership and appointmentThe 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.

(D) Vacancies

(E) No compensation

(F) Termination of board

(3) Procedures

(4) Deadline for decision

(5) Assistance from Technical Panel

(6) Administrative support

(7) Appeals

(8) Regulations

(9) Certain requirements inapplicable

(j) Relocation prioritized over sharing

(1) In general

(2) Notification of Congress when sharing chosen

(k) Federal action to expedite spectrum transfer

(l) “Federal entity” defined

(Pub. L. 102–538, title I, § 113, as added Pub. L. 103–66, title VI, § 6001(a)(3), Aug. 10, 1993, 107 Stat. 380; amended Pub. L. 105–33, title III, § 3002(d)(1), (e)(1)–(3), Aug. 5, 1997, 111 Stat. 262, 264, 265; Pub. L. 105–261, div. A, title X, § 1064(c), Oct. 17, 1998, 112 Stat. 2132; Pub. L. 106–65, div. A, title X, § 1062(c)(2), Oct. 5, 1999, 113 Stat. 768; Pub. L. 108–494, title II, § 202, Dec. 23, 2004, 118 Stat. 3991; Pub. L. 112–96, title VI, § 6701(a), Feb. 22, 2012, 126 Stat. 245; Pub. L. 114–74, title X, § 1005(b), (c), Nov. 2, 2015, 129 Stat. 623, 624; Pub. L. 117–286, § 4(a)(299), Dec. 27, 2022, 136 Stat. 4338.)