
From the U.S. Code Online via GPO Access
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[Laws in effect as of January 23, 2000]
[Document not affected by Public Laws enacted between
  January 23, 2000 and December 4, 2001]
[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.
