47 USC 925 - Distribution of frequencies by Commission

Collapse to view only § 925. Distribution of frequencies by Commission

§ 921. Definitions
§ 922. National spectrum allocation planning
§ 923. Identification of reallocable frequencies
§ 924. Withdrawal or limitation of assignment to Federal Government stations
§ 925. Distribution of frequencies by Commission
§ 926. Authority to recover reassigned frequencies
§ 927. Existing allocation and transfer authority retained
§ 928. Spectrum Relocation Fund
§ 929. National security and other sensitive information

§ 921. Definitions

As used in this subchapter:

(1) The term “allocation” means an entry in the National Table of Frequency Allocations of a given frequency band for the purpose of its use by one or more radiocommunication services.

(2) The term “assignment” means an authorization given to a station licensee to use specific frequencies or channels.

(3) The term “the 1934 Act” means the Communications Act of 1934 (47 U.S.C. 151 et seq.).

(Pub. L. 102–538, title I, § 111, as added Pub. L. 103–66, title VI, § 6001(a)(3), Aug. 10, 1993, 107 Stat. 379.)

§ 922. National spectrum allocation planning

The Assistant Secretary and the Chairman of the Commission shall meet, at least biannually, to conduct joint spectrum planning with respect to the following issues:

(1) the extent to which licenses for spectrum use can be issued pursuant to section 309(j) of this title to increase Federal revenues;

(2) the future spectrum requirements for public and private uses, including State and local government public safety agencies;

(3) the spectrum allocation actions necessary to accommodate those uses; and

(4) actions necessary to promote the efficient use of the spectrum, including spectrum management techniques to promote increased shared use of the spectrum that does not cause harmful interference as a means of increasing commercial access.

(Pub. L. 102–538, title I, § 112, as added Pub. L. 103–66, title VI, § 6001(a)(3), Aug. 10, 1993, 107 Stat. 380.)

§ 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.)

§ 924. Withdrawal or limitation of assignment to Federal Government stations

(a) In general

The President shall—

(1) within 6 months after receipt of a report by the Secretary under subsection (a), (d)(1), or (f) of section 923 of this title, withdraw the assignment to a Federal Government station of any frequency which the report recommends for immediate reallocation;

(2) within any such 6-month period, limit the assignment to a Federal Government station of any frequency which the report recommends be made immediately available for mixed use under section 923(b)(2) of this title;

(3) by the delayed effective date recommended by the Secretary under section 923(e) of this title (except as provided in subsection (b)(4) of this section), withdraw or limit the assignment to a Federal Government station of any frequency which the report recommends be reallocated or made available for mixed use on such delayed effective date;

(4) assign or reassign other frequencies to Federal Government stations as necessary to adjust to such withdrawal or limitation of assignments; and

(5) transmit a notice and description to the Commission and each House of Congress of the actions taken under this subsection.

(b) Exceptions

(1) Authority to substitute

If the President determines that a circumstance described in paragraph (2) exists, the President—

(A) may substitute an alternative frequency or frequencies for the frequency that is subject to such determination and withdraw (or limit) the assignment of that alternative frequency in the manner required by subsection (a); and

(B) shall submit a statement of the reasons for taking the action described in subparagraph (A) to the Commission, Committee on Energy and Commerce of the House of Representatives, and the Committee on Commerce, Science, and Transportation of the Senate.

(2) Grounds for substitution

For purposes of paragraph (1), the following circumstances are described in this paragraph:

(A) the reassignment would seriously jeopardize the national defense interests of the United States;

(B) the frequency proposed for reassignment is uniquely suited to meeting important governmental needs;

(D) the reassignment will result in costs to the Federal Government that are excessive in relation to the benefits that may be obtained from commercial or other non-Federal uses of the reassigned frequency; or

(E) the reassignment will disrupt the existing use of a Federal Government band of frequencies by amateur radio licensees.

(3) Criteria for substituted frequencies

(4) Delays in implementation

If the President determines that any action cannot be completed by the delayed effective date recommended by the Secretary pursuant to section 923(e) of this title, or that such an action by such date would result in a frequency being unused as a consequence of the Commission’s plan under section 925 of this title, the President may—

(A) withdraw or limit the assignment to Federal Government stations on a later date that is consistent with such plan, except that the President shall notify each committee specified in paragraph (1)(B) and the Commission of the reason that withdrawal or limitation at a later date is required; or

(B) substitute alternative frequencies pursuant to the provisions of this subsection.

(Pub. L. 102–538, title I, § 114, as added Pub. L. 103–66, title VI, § 6001(a)(3), Aug. 10, 1993, 107 Stat. 384; amended Pub. L. 105–33, title III, § 3002(d)(2), Aug. 5, 1997, 111 Stat. 264.)

§ 925. Distribution of frequencies by Commission

(a) Allocation and assignment of immediately available frequencies

(b) Allocation and assignment of remaining available frequenciesWith respect to the frequencies made available for reallocation pursuant to section 923(e)(3) of this title, the Commission shall, not later than 1 year after receipt of the initial reallocation report required by section 923(a) of this title, prepare, submit to the President and the Congress, and implement, a plan for the allocation and assignment under the 1934 Act [47 U.S.C. 151 et seq.] of such frequencies. Such plan shall—

(1) not propose the immediate allocation and assignment of all such frequencies but, taking into account the timetable recommended by the Secretary pursuant to section 923(e) of this title, shall propose—

(A) gradually to allocate and assign the frequencies remaining, after making the reservation required by subparagraph (B), over the course of 10 years beginning on the date of submission of such plan; and

(B) to reserve a significant portion of such frequencies for allocation and assignment beginning after the end of such 10-year period;

(2) contain appropriate provisions to ensure—

(A) the availability of frequencies for new technologies and services in accordance with the policies of section 7 of the 1934 Act (47 U.S.C. 157);

(B) the availability of frequencies to stimulate the development of such technologies; and

(3) address (A) the feasibility of reallocating portions of the spectrum from current commercial and other non-Federal uses to provide for more efficient use of the spectrum, and (B) innovation and marketplace developments that may affect the relative efficiencies of different spectrum allocations;

(4) not prevent the Commission from allocating frequencies, and assigning licenses to use frequencies, not included in the plan; and

(5) not preclude the Commission from making changes to the plan in future proceedings.

(1) Plan and implementation

(2) Contents

(Pub. L. 102–538, title I, § 115, as added Pub. L. 103–66, title VI, § 6001(a)(3), Aug. 10, 1993, 107 Stat. 385; amended Pub. L. 105–33, title III, § 3002(e)(4), Aug. 5, 1997, 111 Stat. 265.)

§ 926. Authority to recover reassigned frequencies

(a) Authority of President

(b) Procedure for reclaiming frequencies

(1) Unallocated frequencies

(2) Allocated frequencies

If the frequencies to be reclaimed have been allocated or assigned by the Commission, the President shall follow the procedures for substitution of frequencies established by section 924(b) of this title, except that the statement required by section 924(b)(1)(B) of this title shall include—

(A) a timetable to accommodate an orderly transition for licensees to obtain new frequencies and equipment necessary for its utilization; and

(B) an estimate of the cost of displacing spectrum users licensed by the Commission.

(d) Effective date of reclaimed frequencies

(e) Effect on other law

(Pub. L. 102–538, title I, § 116, as added Pub. L. 103–66, title VI, § 6001(a)(3), Aug. 10, 1993, 107 Stat. 386.)

§ 927. Existing allocation and transfer authority retained

(a) Additional reallocation

(b) Implementation of new technologies and services

Notwithstanding any other provision of this subchapter—

(1) the Secretary may, consistent with section 903(e) of this title, at any time allow frequencies allocated on a primary basis for Federal Government use to be used by non-Federal licensees on a mixed-use basis for the purpose of facilitating the prompt implementation of new technologies or services and for other purposes; and

(2) the Commission shall make any allocation and licensing decisions with respect to such frequencies in a timely manner and in no event later than the date required by section 157 of this title.

(Pub. L. 102–538, title I, § 117, as added Pub. L. 103–66, title VI, § 6001(a)(3), Aug. 10, 1993, 107 Stat. 386.)

§ 928. Spectrum Relocation Fund

(a) Establishment of Spectrum Relocation Fund

(b) Crediting of receipts

(d) Fund availability

(1) Appropriation

(2) Transfer conditionsNone of the funds provided under this subsection may be transferred to any eligible Federal entity—

(A) unless the eligible Federal entity has submitted a transition plan to the NTIA as required by paragraph (1) of section 923(h) of this title, the Technical Panel has found such plan sufficient under paragraph (4) of such section, and the NTIA has made available such plan on its website as required by paragraph (5) of such section;

(B) unless the Director of OMB has determined, in consultation with the NTIA, the appropriateness of such costs and the timeline for relocation or sharing; and

(C) until 30 days after the Director of OMB has submitted to the 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 detailed plan describing specifically how the sums transferred from the Fund will be used to pay relocation or sharing costs in accordance with such subsection and the timeline for such relocation or sharing.

Unless disapproved within 30 days, the amounts in the Fund shall be available immediately. If the plan is disapproved, the Director may resubmit a revised plan.

(3) Transfers for pre-auction costs

(A) In general

(B) NotificationNo funds may be transferred pursuant to subparagraph (A) unless—

(i) the notification provided under paragraph (2)(C) includes a certification from the Director of OMB that—(I) funds transferred before an auction will likely allow for timely implementation of relocation or sharing, thereby increasing net expected auction proceeds by an amount not less than the time value of the amount of funds transferred; and(II) the auction is intended to occur not later than 8 years after transfer of funds; and

(ii) the transition plan submitted by the eligible Federal entity under section 923(h)(1) of this title provides—(I) to the fullest extent possible, for sharing and coordination of eligible frequencies with non-Federal users, including reasonable accommodation by the eligible Federal entity for the use of eligible frequencies by non-Federal users during the period that the entity is relocating its spectrum uses (in this clause referred to as the “transition period”);(II) for non-Federal users to be able to use eligible frequencies during the transition period in geographic areas where the eligible Federal entity does not use such frequencies;(III) that the eligible Federal entity will, during the transition period, make itself available for negotiation and discussion with non-Federal users not later than 30 days after a written request therefor; and(IV) that the eligible Federal entity will, during the transition period, make available to a non-Federal user with appropriate security clearances any classified information (as defined in

(i) In general

(ii) Supplement not supplant

(4) Reversion of unused funds

(e) Transfer to eligible Federal entities

(1) Transfer

(A) Amounts made available pursuant to subsection (d) shall be transferred to eligible Federal entities, as defined in section 923(g)(1) of this title.

(B) An eligible Federal entity may receive more than one such transfer, but if the sum of the subsequent transfer or transfers exceeds 10 percent of the original transfer—

(i) such subsequent transfers are subject to prior approval by the Director of OMB as required by subsection (d)(2)(B);

(ii) the notice to the committees containing the plan required by subsection (d)(2)(C) shall be not less than 45 days prior to the date of the transfer that causes such excess above 10 percent; and

(iii) such notice shall include, in addition to such plan, an explanation of need for such subsequent transfer or transfers.

(C) Such transferred amounts shall be credited to the appropriations account of the eligible Federal entity which has incurred, or will incur, such costs, and shall, subject to paragraph (2), remain available until expended.

(D) At the request of an eligible Federal entity, the Director of the Office of Management and Budget (in this subsection referred to as “OMB”) may transfer the amount under subparagraph (A) immediately—

(i) after the frequencies are reallocated by competitive bidding under section 309(j) of this title; or

(ii) in the case of an incumbent Federal entity that is incurring relocation or sharing costs to accommodate sharing spectrum frequencies with another Federal entity, after the frequencies from which the other eligible Federal entity is relocating are reallocated by competitive bidding under section 309(j) of this title, without regard to the availability of such sums in the Fund.

(E) Prior to the deposit of proceeds into the Fund from an auction, the Director of OMB may borrow from the Treasury the amount under subparagraph (A) for a transfer under subparagraph (D). The Treasury shall immediately be reimbursed, without interest, from funds deposited into the Fund.

(2) Retransfer to fund

(f) Additional payments from Fund

(1) Amounts available

(2) Use of amounts

(A) In general

(B) ConditionsIn the case of any payment by the Director of OMB under subparagraph (A)—

(i) such payment shall be based on the market value of the eligible frequencies, the timeliness with which the eligible Federal entity clears its use of such frequencies, and the need for such frequencies in order for the entity to conduct its essential missions;

(ii) the eligible Federal entity shall use such payment for the purposes specified in clauses (i) through (v) of section 923(g)(3)(A) of this title to achieve comparable capability of systems affected by the reallocation of eligible frequencies from Federal use to exclusive non-Federal use or to shared use;

(iii) such payment may not be made if the amount remaining in the Fund after such payment will be less than 10 percent of the winning bids in the auction of the spectrum with respect to which the Federal entity is incurring relocation or sharing costs; and

(iv) such payment may not be made until 30 days after the Director of OMB has notified the congressional committees described in subsection (d)(2)(C).

(g) Additional payments for research and development and planning activities

(1) Amounts availableNotwithstanding subsections (c) through (e)—

(A) there are appropriated from the Fund on November 2, 2015, and available to the Director of OMB for use in accordance with paragraph (2), not more than $500,000,000 from amounts in the Fund on November 2, 2015; and

(B) there are appropriated from the Fund after November 2, 2015, and available to the Director of OMB for use in accordance with such paragraph, not more than 10 percent of the amounts deposited in the Fund after November 2, 2015.

(2) Use of amounts

(A) In general

(B) Systems that improve efficiency and effectiveness of Federal spectrum useFor purposes of a payment under subparagraph (A) for activities with respect to systems that improve the efficiency and effectiveness of the spectrum use of Federal entities, such systems include the following:

(i) Systems that have increased functionality or that increase the ability of a Federal entity to accommodate spectrum sharing with non-Federal entities.

(ii) Systems that consolidate functions or services that have been provided using separate systems.

(iii) Non-spectrum technology or systems.

(C) Frequencies describedThe frequencies described in this subparagraph are, with respect to a payment under subparagraph (A), frequencies that—

(i) are assigned to a Federal entity; and

(ii) at the time of the activities conducted with such payment, are not identified for auction.

(D) ConditionsThe Director of OMB may not make a payment to a Federal entity under subparagraph (A)—

(i) unless—(I) the Federal entity has submitted to the Technical Panel established under section 923(h)(3) of this title a plan describing the activities that the Federal entity will conduct with such payment;(II) the Technical Panel has approved such plan under subparagraph (E); and(III) the Director of OMB has submitted the plan approved under subparagraph (E) to the congressional committees described in subsection (d)(2)(C); and

(ii) until 60 days have elapsed after submission of the plan under clause (i)(III).

(E) Review by technical panel

(i) In general

(ii) Criteria for reviewIn considering whether to approve or disapprove a plan under this subparagraph, the Technical Panel shall consider whether—(I) the activities that the Federal entity will conduct with the payment will—(aa) increase the probability of relocation from or sharing of Federal spectrum;(bb) facilitate an auction intended to occur not later than 8 years after the payment; and(cc) increase the net expected auction proceeds in an amount not less than the time value of the amount of the payment; and(II) the transfer will leave sufficient amounts in the Fund for the other purposes of the Fund.

(h) Prioritization of payments

(i) Restriction on use of FundsNo amounts in the Fund on the day before February 22, 2012, may be used for any purpose except—

(1) to pay the relocation or sharing costs incurred by eligible Federal entities in order to relocate from the frequencies the auction of which generated such amounts; or

(2) to pay relocation or sharing costs related to pre-auction estimates or research, in accordance with subsection (d)(3).

(Pub. L. 102–538, title I, § 118, as added Pub. L. 108–494, title II, § 204, Dec. 23, 2004, 118 Stat. 3994; amended Pub. L. 111–8, div. G, title I, § 1301(a), Mar. 11, 2009, 123 Stat. 829; Pub. L. 112–96, title VI, § 6702, Feb. 22, 2012, 126 Stat. 252; Pub. L. 114–74, title X, § 1005(a), Nov. 2, 2015, 129 Stat. 622; Pub. L. 115–141, div. P, title VI, §§ 612, 613, Mar. 23, 2018, 132 Stat. 1109.)

§ 929. National security and other sensitive information

(a) Determination

(b) Inclusion in annex

(Pub. L. 102–538, title I, § 119, as added Pub. L. 112–96, title VI, § 6703, Feb. 22, 2012, 126 Stat. 255.)