§ 923. — Identification of reallocable frequencies.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 47USC923]
TITLE 47--TELEGRAPHS, TELEPHONES, AND RADIOTELEGRAPHS
CHAPTER 8--NATIONAL TELECOMMUNICATIONS AND INFORMATION ADMINISTRATION
SUBCHAPTER II--TRANSFER OF AUCTIONABLE FREQUENCIES
Sec. 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) In general
(A) Authority of Federal entities to accept compensation
In order to expedite the commercial use of the
electromagnetic spectrum and notwithstanding section 3302(b) of
title 31, any Federal entity which operates a Federal Government
station may accept from any person payment of the expenses of
relocating the Federal entity's operations from one or more
frequencies to another frequency or frequencies, including the
costs of any modification, replacement, or reissuance of
equipment, facilities, operating manuals, or regulations
incurred by that entity. Any such Federal entity which proposes
to so relocate shall notify the NTIA, which in turn shall notify
the Commission, before the auction concerned of the marginal
costs anticipated to be associated with such relocation or with
modifications necessary to accommodate prospective licensees.
The Commission in turn shall notify potential bidders of the
estimated relocation or modification costs based on the
geographic area covered by the proposed licenses before the
auction.
(B) Requirement to compensate Federal entities
Any person on whose behalf a Federal entity incurs costs
under subparagraph (A) shall compensate the Federal entity in
advance for such costs. Such compensation may take the form of a
cash payment or in-kind compensation.
(C) Disposition of payments
(i) Payment by electronic funds transfer
A person making a cash payment under this paragraph
shall make the cash payment by depositing the amount of the
payment by electronic funds transfer in the account of the
Federal entity concerned in the Treasury of the United
States or in another account as authorized by law.
(ii) Availability
Subject to the provisions of authorization Acts and
appropriations Acts, amounts deposited under this
subparagraph shall be available to the Federal entity
concerned to pay directly the costs of relocation under this
paragraph, to repay or make advances to appropriations or
funds which do or will initially bear all or part of such
costs, or to refund excess sums when necessary.
(D) Application to certain other relocations
The provisions of this paragraph also apply to any Federal
entity that operates a Federal Government station assigned to
used \1\ electromagnetic spectrum identified for reallocation
under subsection (a) of this section if before August 5, 1997,
the Commission has not identified that spectrum for service or
assigned licenses or otherwise authorized service for that
spectrum.
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\1\ So in original.
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(E) Implementation procedures
The NTIA and the Commission shall develop procedures for the
implementation of this paragraph, which procedures shall include
a process for resolving any differences that arise between the
Federal Government and commercial licensees regarding estimates
of relocation or modification costs under this paragraph.
(F) Inapplicability to certain relocations
With the exception of the band of frequencies located at
1710-1755 megahertz, the provisions of this paragraph shall not
apply to Federal spectrum identified for reallocation in the
first reallocation report submitted to the President and
Congress under subsection (a) of this section.
(2) Process for relocation
Any person seeking to relocate a Federal Government station that
has been assigned a frequency within a band that has been allocated
for mixed Federal and non-Federal use, or that has been scheduled
for reallocation to non-Federal use, may submit a petition for such
relocation to NTIA. The NTIA shall limit or terminate the Federal
Government station's operating license within 6 months after
receiving the petition if the following requirements are met:
(A) the person seeking relocation of the Federal Government
station has guaranteed to pay all relocation costs incurred by
the Federal entity, including all engineering, equipment, site
acquisition and construction, and regulatory fee costs;
(B) all activities necessary for implementing the relocation
have been completed, including construction of replacement
facilities (if necessary and appropriate) and identifying and
obtaining new frequencies for use by the relocated Federal
Government station (where such station is not relocating to
spectrum reserved exclusively for Federal use);
(C) any necessary replacement facilities, equipment
modifications, or other changes have been implemented and tested
to ensure that the Federal Government station is able to
successfully accomplish its purposes; and
(D) NTIA has determined that the proposed use of the
spectrum frequency band to which the Federal entity will
relocate its operations is--
(i) consistent with obligations undertaken by the United
States in international agreements and with United States
national security and public safety interests; and
(ii) suitable for the technical characteristics of the
band and consistent with other uses of the band.
In exercising its authority under clause (i) of this
subparagraph, NTIA shall consult with the Secretary of Defense,
the Secretary of State, or other appropriate officers of the
Federal Government.
(3) Right to reclaim
If within one year after the relocation the Federal entity
demonstrates to the Commission that the new facilities or spectrum
are not comparable to the facilities or spectrum from which the
Federal Government station was relocated, the person who filed the
petition under paragraph (2) for such relocation shall take
reasonable steps to remedy any defects or pay the Federal entity for
the expenses incurred in returning the Federal Government station to
the spectrum from which such station was relocated.
(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).
(Pub. L. 102-538, title I, Sec. 113, as added Pub. L. 103-66, title VI,
Sec. 6001(a)(3), Aug. 10, 1993, 107 Stat. 380; amended Pub. L. 105-33,
title III, Sec. 3002(d)(1), (e)(1)-(3), Aug. 5, 1997, 111 Stat. 262,
264, 265; Pub. L. 105-261, div. A, title X, Sec. 1064(c), Oct. 17, 1998,
112 Stat. 2132; Pub. L. 106-65, div. A, title X, Sec. 1062(c)(2), Oct.
5, 1999, 113 Stat. 768.)
References in Text
For definition of the 1934 Act, referred to in subsecs. (a)(3), (5),
(b)(2), and (f), see section 921(3) of this title.
Section 3002(c)(5) of the Balanced Budget Act of 1997, referred to
in subsec. (f), is section 3002(c)(5) of Pub. L. 105-33, which is set
out as a note under section 925 of this title.
Amendments
1999--Subsec. (b)(3)(A). Pub. L. 106-65 substituted ``12 megahertz''
for ``20 megahertz''.
1998--Subsec. (g)(1). Pub. L. 105-261 designated existing provisions
as subpar. (A), inserted subpar. heading, substituted ``Any such Federal
entity which proposes to so relocate shall notify the NTIA, which in
turn shall notify the Commission, before the auction concerned of the
marginal costs anticipated to be associated with such relocation or with
modifications necessary to accommodate prospective licensees. The
Commission in turn shall notify potential bidders of the estimated
relocation or modification costs based on the geographic area covered by
the proposed licenses before the auction.'' for ``Such payments may be
in advance of relocation and may be in cash or in kind. Any such payment
in cash shall be deposited in the account of such Federal entity in the
Treasury of the United States or in a separate account authorized by
law. Funds deposited according to this paragraph shall be available,
without appropriation or fiscal year limitation, only for such expenses
of the Federal entity for which such funds were deposited under this
paragraph.'', and added subpars. (B) to (F).
1997--Subsec. (a). Pub. L. 105-33, Sec. 3002(e)(1), inserted ``and
within 6 months after August 5, 1997'' after ``August 10, 1993,'' in
introductory provisions.
Subsec. (b)(1). Pub. L. 105-33, Sec. 3002(e)(2)(A), (B), substituted
``Initial reallocation report'' for ``In general'' in heading and
inserted ``in the initial report required by subsection (a) of this
section'' after ``recommend for reallocation'' in text.
Subsec. (b)(2). Pub. L. 105-33, Sec. 3002(e)(2)(C), inserted ``or
(3)'' after ``paragraph (1)'' in two places.
Subsec. (b)(3). Pub. L. 105-33, Sec. 3002(e)(2)(D), added par. (3).
Subsec. (d)(4). Pub. L. 105-33, Sec. 3002(e)(3), substituted
``initial report'' for ``final report''.
Subsecs. (f) to (i). Pub. L. 105-33, Sec. 3002(d)(1), added subsecs.
(f) to (i).
Reports on Costs of Relocations
Pub. L. 105-261, div. A, title X, Sec. 1064(d), Oct. 17, 1998, 112
Stat. 2133, provided that: ``The head of each department or agency of
the Federal Government shall include in the annual budget submission of
such department or agency to the Director of the Office of Management
and Budget a report assessing the costs to be incurred by such
department or agency as a result of any frequency relocations of such
department or agency that are anticipated under section 113 of the
National Telecommunications [and] Information Administration
Organization Act (47 U.S.C. 923) as of the date of such report.''
Section Referred to in Other Sections
This section is referred to in sections 309, 924, 925 of this title.
