[USC02] 47 USC CHAPTER 8, SUBCHAPTER II: TRANSFER OF AUCTIONABLE FREQUENCIES
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47 USC CHAPTER 8, SUBCHAPTER II: TRANSFER OF AUCTIONABLE FREQUENCIES
From Title 47—TELECOMMUNICATIONSCHAPTER 8—NATIONAL TELECOMMUNICATIONS AND INFORMATION ADMINISTRATION

SUBCHAPTER II—TRANSFER OF AUCTIONABLE FREQUENCIES

§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.)

References in Text

The Communications Act of 1934, referred to in par. (3), is act June 19, 1934, ch. 652, 48 Stat. 1064, as amended, which is classified principally to chapter 5 (§151 et seq.) of this title. For complete classification of this Act to the Code, see section 609 of this title and Tables.

Identification, Reallocation, and Auction of Federal Spectrum

Pub. L. 114–74, title X, §§1002–1004, Nov. 2, 2015, 129 Stat. 621, as amended by Pub. L. 114–328, div. A, title X, §1044, Dec. 23, 2016, 130 Stat. 2394, provided that:

"SEC. 1002. DEFINITIONS.

"In this title [see Short Title of 2015 Amendment note set out under section 901 of this title]:

"(1) Assistant secretary.—The term 'Assistant Secretary' means the Assistant Secretary of Commerce for Communications and Information.

"(2) Commission.—The term 'Commission' means the Federal Communications Commission.

"(3) Federal entity.—The term 'Federal entity' has the meaning given such term in section 113(l) of the National Telecommunications and Information Administration Organization Act (47 U.S.C. 923(l)).

"(4) Secretary.—The term 'Secretary' means the Secretary of Commerce.

"SEC. 1003. RULE OF CONSTRUCTION.

"Each range of frequencies described in this title shall be construed to be inclusive of the upper and lower frequencies in the range.

"SEC. 1004. IDENTIFICATION, REALLOCATION, AND AUCTION OF FEDERAL SPECTRUM.

"(a) Identification of Spectrum.—Not later than January 1, 2022, the Secretary shall submit to the President and to the Commission a report identifying 30 megahertz of electromagnetic spectrum (in bands of not less than 10 megahertz of contiguous frequencies) below the frequency of 3 gigahertz (except for the spectrum between the frequencies of 1675 megahertz and 1695 megahertz) for reallocation from Federal use to non-Federal use or shared Federal and non-Federal use, or a combination thereof.

"(b) Clearing of Spectrum.—The President shall—

"(1) not later than January 1, 2022, begin the process of withdrawing or modifying the assignment to a Federal Government station of the electromagnetic spectrum identified under subsection (a); and

"(2) not later than 30 days after completing the withdrawal or modification, notify the Commission that the withdrawal or modification is complete.

"(c) Reallocation and Auction.—

"(1) In general.—The Commission shall—

"(A) reallocate the electromagnetic spectrum identified under subsection (a) for non-Federal use or shared Federal and non-Federal use, or a combination thereof; and

"(B) notwithstanding paragraph (15)(A) of section 309(j) of the Communications Act of 1934 (47 U.S.C. 309(j)), not later than July 1, 2024, begin a system of competitive bidding under such section to grant new initial licenses for the use of such spectrum, subject to flexible-use service rules.

"(2) Proceeds to cover 110 percent of federal relocation or sharing costs.—Nothing in paragraph (1) shall be construed to relieve the Commission from the requirements of section 309(j)(16)(B) of the Communications Act of 1934 (47 U.S.C. 309(j)(16)(B)).

"(d) Protection of Certain Federal Spectrum Operations.—If the report required by subsection (a) determines that reallocation and auction of the spectrum described in the report would harm national security by impacting existing terrestrial Federal spectrum operations at the Nevada Test and Training Range, the Commission, in coordination with the Secretary shall, prior to the auction described in subsection (c)(1)(B), establish rules for licensees in such spectrum sufficient to mitigate harmful interference to such operations.

"(e) Rule of Construction.—Nothing in this section shall be construed to affect any requirement under section 1062(b) of the National Defense Authorization Act for Fiscal Year 2000 (47 U.S.C. 921 note; Public Law 106–65)."

Study and Report on Current and Future Spectrum Use

Pub. L. 106–553, §1(a)(2) [title II], Dec. 21, 2000, 114 Stat. 2762, 2762A-73, provided in part: "That the Administrator shall, after consultation with other federal departments and agencies responsible for regulating the core operations of entities engaged in the provision of energy, water and railroad services, complete and submit to Congress, not later than twelve months after date of enactment of this subsection, a study of the current and future use of spectrum by these entities to protect and maintain the nation's critical infrastructure: Provided further, That within six months after the release of this study, the Chairman of the Federal Communications Commission shall submit a report to Congress on the actions that could be taken by the Commission to address any needs identified in the Administrator's study."

Report on Progress on Spectrum Sharing

Pub. L. 106–398, §1 [[div. A], title XVII, §1705], Oct. 30, 2000, 114 Stat. 1654, 1654A-366, provided that:

"(a) Study Required.—The Secretary of Defense, in consultation with the Attorney General and the Secretary of Commerce, shall provide for the conduct of an engineering study to identify—

"(1) any portion of the 138–144 megahertz band that the Department of Defense can share in various geographic regions with public safety radio services;

"(2) any measures required to prevent harmful interference between Department of Defense systems and the public safety systems proposed for operation on those frequencies; and

"(3) a reasonable schedule for implementation of such sharing of frequencies.

"(b) Submission of Interim Report.—Within one year after the date of the enactment of this Act [Oct. 30, 2000], the Secretary of Defense shall submit to the Committee on Armed Services of the Senate and the Committee on Armed Services of the House of Representatives an interim report on the progress of the study conducted pursuant to subsection (a).

"(c) Report.—Not later than January 1, 2002, the Secretary of Commerce and the Chairman of the Federal Communications Commission shall jointly submit a report to Congress on alternative frequencies available for use by public safety systems."

Surrender of Department of Defense Spectrum

Pub. L. 106–65, div. A, title X, §1062(b), Oct. 5, 1999, 113 Stat. 768, provided that:

"(1) In general.—If, in order to make available for other use a band of frequencies of which it is a primary user, the Department of Defense is required to surrender use of such band of frequencies, the Department shall not surrender use of such band of frequencies until—

"(A) the National Telecommunications and Information Administration, in consultation with the Federal Communications Commission, identifies and makes available to the Department for its primary use, if necessary, an alternative band or bands of frequencies as a replacement for the band to be so surrendered; and

"(B) the Secretary of Commerce, the Secretary of Defense, and the Chairman of the Joint Chiefs of Staff jointly certify to the Committee on Armed Services and the Committee on Commerce, Science, and Transportation of the Senate, and the Committee on Armed Services and the Committee on Commerce [now Committee on Energy and Commerce] of the House of Representatives, that such alternative band or bands provides comparable technical characteristics to restore essential military capability that will be lost as a result of the band of frequencies to be so surrendered.

"(2) Exception.—Paragraph (1) shall not apply to a band of frequencies that has been identified for reallocation in accordance with title VI of the Omnibus Budget Reconciliation Act of 1993 (Public Law 103–66; 107 Stat. 379) [enacting sections 159 and 921 to 927 of this title and amending sections 152, 153, 156, 158, 309, 332, and 903 of this title] and title III of the Balanced Budget Act of 1997 (Public Law 105–33, 111 Stat. 258) [enacting section 337 of this title, amending sections 153, 303, 309, and 923 to 925 of this title, and repealing provisions set out as a note under section 309 of this title], other than a band of frequencies that is reclaimed pursuant to subsection (c) [amending section 923 of this title and enacting provisions set out as a note below]."

[Pub. L. 108–494, title II, §206, Dec. 23, 2004, 118 Stat. 3996, provided that: "Nothing in this title [see Short Title of 2004 Amendment note set out under section 901 of this title] is intended to modify section 1062(b) of the National Defense Authorization Act for Fiscal Year 2000 (Public Law 106–65) [set out above]."]

Reassignment to Federal Government for Use by Department of Defense of Certain Frequency Spectrum Recommended for Reallocation

Pub. L. 106–65, div. A, title X, §1062(c)(1), Oct. 5, 1999, 113 Stat. 768, provided that: "Notwithstanding any provision of the National Telecommunications and Information Administration Organization Act [47 U.S.C. 901 et seq.] or the Balanced Budget Act of 1997 [Pub. L. 105–33, see Tables for classification], the President shall reclaim for exclusive Federal Government use on a primary basis by the Department of Defense—

"(A) the bands of frequencies aggregating 3 megahertz located between 138 and 144 megahertz that were recommended for reallocation in the second reallocation report under section 113(a) of that Act [probably means 47 U.S.C. 923(a)]; and

"(B) the band of frequency aggregating 5 megahertz located between 1385 megahertz and 1390 megahertz, inclusive, that was so recommended for reallocation."

Assessment of Electromagnetic Spectrum Reallocation

Pub. L. 102–538, title I, §156, as added by Pub. L. 106–65, div. A, title X, §1062(a), Oct. 5, 1999, 113 Stat. 767, required the Secretary of Commerce to convene an interagency review and assessment of the progress made in implementation of national spectrum planning, the reallocation of Federal Government spectrum to non-Federal use, and the implications for such reallocations to the affected Federal executive agencies and to submit to the President and committees of Congress, not later than Oct. 1, 2000, a report on the assessment.

§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 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), for use other than by Federal Government stations under section 305 of the 1934 Act (47 U.S.C. 305), bands of frequencies that in the aggregate span not less than 200 megahertz, that are located below 5 gigahertz, and that meet the criteria specified in paragraphs (1) through (5) of subsection (a). Such bands of frequencies shall include bands of frequencies, located below 3 gigahertz, that span in the aggregate not less than 100 megahertz.

(2) Mixed uses permitted to be counted

Bands of frequencies which a report of the Secretary under subsection (a) or (d)(1) recommends be partially retained for use by Federal Government stations, but which are also recommended to be reallocated to be made available under the 1934 Act [47 U.S.C. 151 et seq.] for use by non-Federal stations, may be counted toward the minimum spectrum required by paragraph (1) or (3) of this subsection, except that—

(A) the bands of frequencies counted under this paragraph may not count toward more than one-half of the minimums required by paragraph (1) or (3) of this subsection;

(B) a band of frequencies may not be counted under this paragraph unless the assignments of the band to Federal Government stations under section 305 of the 1934 Act (47 U.S.C. 305) are limited by geographic area, by time, or by other means so as to guarantee that the potential use to be made by such Federal Government stations is substantially less (as measured by geographic area, time, or otherwise) than the potential use to be made by non-Federal stations; and

(C) the operational sharing permitted under this paragraph shall be subject to the interference regulations prescribed by the Commission pursuant to section 305(a) of the 1934 Act [47 U.S.C. 305(a)] and to coordination procedures that the Commission and the Secretary shall jointly establish and implement to ensure against harmful interference.

(3) 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), 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).

(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), the Secretary shall—

(A) consider whether the band of frequencies is used to provide a communications service that is or could be available from a commercial provider or other vendor;

(B) seek to promote—

(i) the maximum practicable reliance on commercially available substitutes;

(ii) the sharing of frequencies (as permitted under subsection (b)(2));

(iii) the development and use of new communications technologies; and

(iv) the use of nonradiating communications systems where practicable; and


(C) seek to avoid—

(i) serious degradation of Federal Government services and operations;

(ii) excessive costs to the Federal Government and users of Federal Government services; and

(iii) excessive disruption of existing use of Federal Government frequencies by amateur radio licensees.

(2) Feasibility of use

In determining whether a frequency band meets the criteria specified in subsection (a)(3), the Secretary shall—

(A) assume that the frequency will be assigned by the Commission under section 303 of the 1934 Act (47 U.S.C. 303) within 15 years;

(B) assume reasonable rates of scientific progress and growth of demand for telecommunications services;

(C) seek to include frequencies which can be used to stimulate the development of new technologies; and

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

(3) Analysis of benefits

In determining whether a band of frequencies meets the criteria specified in subsection (a)(5), the Secretary shall consider—

(A) the extent to which equipment is or will be available that is capable of utilizing the band;

(B) the proximity of frequencies that are already assigned for commercial or other non-Federal use;

(C) the extent to which, in general, commercial users could share the frequency with amateur radio licensees; and

(D) the activities of foreign governments in making frequencies available for experimentation or commercial assignments in order to support their domestic manufacturers of equipment.

(4) Power agency frequencies

(A) Applicability of criteria

The criteria specified by subsection (a) shall be deemed not to be met for any purpose under this subchapter with regard to any frequency assignment to, or any frequency assignment used by, a Federal power agency for the purpose of withdrawing that assignment.

(B) Mixed use eligibility

The frequencies assigned to any Federal power agency may only be eligible for mixed use under subsection (b)(2) in geographically separate areas, but in those cases where a frequency is to be shared by an affected Federal power agency and a non-Federal user, such use by the non-Federal user shall not cause harmful interference to the affected Federal power agency or adversely affect the reliability of its power system.

(C) "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).

(e) Timetable for reallocation and limitation

(1) Timetable required

The Secretary shall, as part of the reports required by subsections (a) and (d)(1), include a timetable that recommends effective dates by which the President shall withdraw or limit assignments of the frequencies specified in such reports.

(2) Expedited reallocation

(A) Required reallocation

The Secretary shall, as part of the report required by subsection (d)(1), specifically identify and recommend for immediate reallocation bands of frequencies that in the aggregate span not less than 50 megahertz, that meet the criteria described in subsection (a), and that can be made available for reallocation immediately upon issuance of the report required by subsection (d)(1). Such bands of frequencies shall include bands of frequencies, located below 3 gigahertz, that in the aggregate span not less than 25 megahertz.

(B) 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), 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 and spectrum sharing by Federal Government stations

(1) Eligible Federal entities

Any Federal entity that operates a Federal Government station that incurs relocation or sharing costs because of planning for an auction of eligible spectrum frequencies or the reallocation of eligible spectrum frequencies from Federal use to exclusive non-Federal use or to shared use shall receive payment for such relocation or sharing costs from the Spectrum Relocation Fund, in accordance with this section and section 928 of this title. For purposes of this paragraph, Federal power agencies exempted under subsection (c)(4) that choose to relocate from the frequencies identified for reallocation pursuant to subsection (a) are eligible to receive payment under this paragraph.

(2) Eligible frequencies

The bands of eligible frequencies for purposes of this section are as follows:

(A) the 216–220 megahertz band, the 1432–1435 megahertz band, the 1710–1755 megahertz band, and the 2385–2390 megahertz band of frequencies; and

(B) any other band of frequencies reallocated from Federal use to non-Federal use or to shared use after January 1, 2003, that is assigned by competitive bidding pursuant to section 309(j) of the Communications Act of 1934 (47 U.S.C. 309(j)).

(3) Relocation or sharing costs defined

(A) In general

For purposes of this section and section 928 of this title, the term "relocation or sharing costs" means the costs incurred by a Federal entity in connection with the auction of spectrum frequencies or the sharing of spectrum frequencies (including the auction or a planned auction of the rights to use spectrum frequencies on a shared basis with such entity) in order to achieve comparable capability of systems as before the relocation or sharing arrangement. Such term includes, with respect to relocation or sharing, as the case may be—

(i) the costs of any modification or replacement of equipment, spares, associated ancillary equipment, software, facilities, operating manuals, training, or compliance with regulations that are attributable to relocation or sharing;

(ii) the costs of all engineering, equipment, software, site acquisition, and construction, as well as any legitimate and prudent transaction expense, including term-limited Federal civil servant and contractor staff necessary to carry out the relocation or sharing activities of a Federal entity, and reasonable additional costs incurred by the Federal entity that are attributable to relocation or sharing, including increased recurring costs associated with the replacement of facilities;

(iii) the costs of research, engineering studies, economic analyses, or other expenses reasonably incurred in connection with—

(I) calculating the estimated relocation or sharing costs that are provided to the Commission pursuant to paragraph (4)(A);

(II) determining the technical or operational feasibility of relocation to 1 or more potential relocation bands; or

(III) planning for or managing a relocation or sharing arrangement (including spectrum coordination with auction winners);


(iv) the one-time costs of any modification of equipment reasonably necessary—

(I) to accommodate non-Federal use of shared frequencies; or

(II) in the case of eligible frequencies reallocated for exclusive non-Federal use and assigned through a system of competitive bidding under section 309(j) of the Communications Act of 1934 (47 U.S.C. 309(j)) but with respect to which a Federal entity retains primary allocation or protected status for a period of time after the completion of the competitive bidding process, to accommodate shared Federal and non-Federal use of such frequencies for such period; and


(v) the costs associated with the accelerated replacement of systems and equipment if the acceleration is necessary to ensure the timely relocation of systems to a new frequency assignment or the timely accommodation of sharing of Federal frequencies.

(B) Comparable capability of systems

For purposes of subparagraph (A), comparable capability of systems—

(i) may be achieved by relocating a Federal Government station to a new frequency assignment, by relocating a Federal Government station to a different geographic location, by modifying Federal Government equipment to mitigate interference or use less spectrum, in terms of bandwidth, geography, or time, and thereby permitting spectrum sharing (including sharing among relocated Federal entities and incumbents to make spectrum available for non-Federal use) or relocation, or by utilizing an alternative technology; and

(ii) includes the acquisition of state-of-the-art replacement systems intended to meet comparable operational scope, which may include incidental increases in functionality.

(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

The NTIA shall, at the time of providing an initial estimate of relocation or sharing costs to the Commission under paragraph (4)(A), submit to 1 Committees on Appropriations and Energy and Commerce of the House of Representatives for approval, to the Committees on Appropriations and Commerce, Science, and Transportation of the Senate for approval, and to the Comptroller General a copy of such estimate and the timelines for relocation or sharing. Unless disapproved within 30 days, the estimate shall be approved. If disapproved, the NTIA may resubmit a revised initial estimate.

(6) Implementation of procedures

The NTIA shall take such actions as necessary to ensure the timely relocation of Federal entities' spectrum-related operations from frequencies described in paragraph (2) to frequencies or facilities of comparable capability and to ensure the timely implementation of arrangements for the sharing of frequencies described in such paragraph. Upon a finding by the NTIA that a Federal entity has achieved comparable capability of systems, the NTIA shall terminate or limit the entity's authorization and notify the Commission that the entity's relocation has been completed or sharing arrangement has been implemented. The NTIA shall also terminate such entity's authorization if the NTIA determines that the entity has unreasonably failed to comply with the timeline for relocation or sharing submitted by the Director of the Office of Management and Budget under section 928(d)(2)(C) of this title.

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

(1) Development of transition plan by Federal entity

Not later than 240 days before the commencement of any auction of eligible frequencies described in subsection (g)(2), a Federal entity shall submit to the NTIA and to the Technical Panel established by paragraph (3) a transition plan for the implementation by such entity of the relocation or sharing arrangement. The NTIA shall specify, after public input, a common format for all Federal entities to follow in preparing transition plans under this paragraph.

(2) Contents of transition plan

The transition plan required by paragraph (1) shall include the following information:

(A) The use by the Federal entity of the eligible frequencies to be auctioned, current as of the date of the submission of the plan.

(B) The geographic location of the facilities or systems of the Federal entity that use such frequencies.

(C) The frequency bands used by such facilities or systems, described by geographic location.

(D) The steps to be taken by the Federal entity to relocate its spectrum use from such frequencies or to share such frequencies, including timelines for specific geographic locations in sufficient detail to indicate when use of such frequencies at such locations will be discontinued by the Federal entity or shared between the Federal entity and non-Federal users.

(E) The specific interactions between the eligible Federal entity and the NTIA needed to implement the transition plan.

(F) The name of the officer or employee of the Federal entity who is responsible for the relocation or sharing efforts of the entity and who is authorized to meet and negotiate with non-Federal users regarding the transition.

(G) The plans and timelines of the Federal entity for—

(i) using funds received from the Spectrum Relocation Fund established by section 928 of this title;

(ii) procuring new equipment and additional personnel needed for relocation or sharing;

(iii) field-testing and deploying new equipment needed for relocation or sharing; and

(iv) hiring and relying on contract personnel, if any, needed for relocation or sharing.


(H) Factors that could hinder fulfillment of the transition plan by the Federal entity.

(3) Technical Panel

(A) Establishment

There is established within the NTIA a panel to be known as the Technical Panel.

(B) Membership

(i) Number and appointment

The Technical Panel shall be composed of 3 members, to be appointed as follows:

(I) One member to be appointed by the Director of the Office of Management and Budget (in this subsection referred to as "OMB").

(II) One member to be appointed by the Assistant Secretary.

(III) One member to be appointed by the Chairman of the Commission.

(ii) Qualifications

Each member of the Technical Panel shall be a radio engineer or a technical expert.

(iii) Initial appointment

The initial members of the Technical Panel shall be appointed not later than 180 days after February 22, 2012.

(iv) Terms

The term of a member of the Technical Panel shall be 18 months, and no individual may serve more than 1 consecutive term.

(v) Vacancies

Any member appointed to fill a vacancy occurring before the expiration of the term for which the member's predecessor was appointed shall be appointed only for the remainder of that term. A member may serve after the expiration of that member's term until a successor has taken office. A vacancy shall be filled in the manner in which the original appointment was made.

(vi) No compensation

The members of the Technical Panel shall not receive any compensation for service on the Technical Panel. If any such member is an employee of the agency of the official that appointed such member to the Technical Panel, compensation in the member's capacity as such an employee shall not be considered compensation under this clause.

(C) Administrative support

The NTIA shall provide the Technical Panel with the administrative support services necessary to carry out its duties under this subsection, subsection (i), and section 928(g)(2)(E) of this title.

(D) Regulations

Not later than 180 days after February 22, 2012, the NTIA shall, after public notice and comment and subject to approval by the Director of OMB, adopt regulations to govern the workings of the Technical Panel.

(E) Certain requirements inapplicable

The Federal Advisory Committee Act (5 U.S.C. App.) and sections 552 and 552b of title 5 shall not apply to the Technical Panel.

(4) Review of plan by Technical Panel

(A) In general

Not later than 30 days after the submission of the plan under paragraph (1), the Technical Panel shall submit to the NTIA and to the Federal entity a report on the sufficiency of the plan, including whether the plan includes the information required by paragraph (2) and an assessment of the reasonableness of the proposed timelines and estimated relocation or sharing costs, including the costs of any proposed expansion of the capabilities of a Federal system in connection with relocation or sharing.

(B) Insufficiency of plan

If the Technical Panel finds the plan insufficient, the Federal entity shall, not later than 90 days after the submission of the report by the Technical Panel under subparagraph (A), submit to the Technical Panel a revised plan. Such revised plan shall be treated as a plan submitted under paragraph (1).

(5) Publication of transition plan

Not later than 120 days before the commencement of the auction described in paragraph (1), the NTIA shall make the transition plan publicly available on its website.

(6) Updates of transition plan

As the Federal entity implements the transition plan, it shall periodically update the plan to reflect any changed circumstances, including changes in estimated relocation or sharing costs or the timeline for relocation or sharing. The NTIA shall make the updates available on its website.

(7) Classified and other sensitive information

(A) Classified information

If any of the information required to be included in the transition plan of a Federal entity is classified information (as defined in section 798(b) of title 18), the entity shall—

(i) include in the plan—

(I) an explanation of the exclusion of any such information, which shall be as specific as possible; and

(II) all relevant non-classified information that is available; and


(ii) discuss as a factor under paragraph (2)(H) the extent of the classified information and the effect of such information on the implementation of the relocation or sharing arrangement.

(B) Regulations

Not later than 180 days after February 22, 2012, the NTIA, in consultation with the Director of OMB and the Secretary of Defense, shall adopt regulations to ensure that the information publicly released under paragraph (5) or (6) does not contain classified information or other sensitive information.

(i) Dispute resolution process

(1) In general

If a dispute arises between a Federal entity and a non-Federal user regarding the execution, timing, or cost of the transition plan submitted by the Federal entity under subsection (h)(1), the Federal entity or the non-Federal user may request that the NTIA establish a dispute resolution board to resolve the dispute.

(2) Establishment of board

(A) In general

If the NTIA receives a request under paragraph (1), it shall establish a dispute resolution board.

(B) Membership and appointment

The dispute resolution board shall be composed of 3 members, as follows:

(i) A representative of the Office of Management and Budget (in this subsection referred to as "OMB"), to be appointed by the Director of OMB.

(ii) A representative of the NTIA, to be appointed by the Assistant Secretary.

(iii) A representative of the Commission, to be appointed by the Chairman of the Commission.

(C) Chair

The representative of OMB shall be the Chair of the dispute resolution board.

(D) Vacancies

Any vacancy in the dispute resolution board shall be filled in the manner in which the original appointment was made.

(E) No compensation

The members of the dispute resolution board shall not receive any compensation for service on the board. If any such member is an employee of the agency of the official that appointed such member to the board, compensation in the member's capacity as such an employee shall not be considered compensation under this subparagraph.

(F) Termination of board

The dispute resolution board shall be terminated after it rules on the dispute that it was established to resolve and the time for appeal of its decision under paragraph (7) has expired, unless an appeal has been taken under such paragraph. If such an appeal has been taken, the board shall continue to exist until the appeal process has been exhausted and the board has completed any action required by a court hearing the appeal.

(3) Procedures

The dispute resolution board shall meet simultaneously with representatives of the Federal entity and the non-Federal user to discuss the dispute. The dispute resolution board may require the parties to make written submissions to it.

(4) Deadline for decision

The dispute resolution board shall rule on the dispute not later than 30 days after the request was made to the NTIA under paragraph (1).

(5) Assistance from Technical Panel

The Technical Panel established under subsection (h)(3) shall provide the dispute resolution board with such technical assistance as the board requests.

(6) Administrative support

The NTIA shall provide the dispute resolution board with the administrative support services necessary to carry out its duties under this subsection.

(7) Appeals

A decision of the dispute resolution board may be appealed to the United States Court of Appeals for the District of Columbia Circuit by filing a notice of appeal with that court not later than 30 days after the date of such decision. Each party shall bear its own costs and expenses, including attorneys' fees, for any appeal under this paragraph.

(8) Regulations

Not later than 180 days after February 22, 2012, the NTIA shall, after public notice and comment and subject to approval by OMB, adopt regulations to govern the working of any dispute resolution boards established under paragraph (2)(A) and the role of the Technical Panel in assisting any such board.

(9) Certain requirements inapplicable

The Federal Advisory Committee Act (5 U.S.C. App.) and sections 552 and 552b of title 5 shall not apply to a dispute resolution board established under paragraph (2)(A).

(j) Relocation prioritized over sharing

(1) In general

In evaluating a band of frequencies for possible reallocation for exclusive non-Federal use or shared use, the NTIA shall give priority to options involving reallocation of the band for exclusive non-Federal use and shall choose options involving shared use only when it determines, in consultation with the Director of the Office of Management and Budget, that relocation of a Federal entity from the band is not feasible because of technical or cost constraints.

(2) Notification of Congress when sharing chosen

If the NTIA determines under paragraph (1) that relocation of a Federal entity from the band is not feasible, the NTIA shall notify the Committee on Commerce, Science, and Transportation of the Senate and the Committee on Energy and Commerce of the House of Representatives of the determination, including the specific technical or cost constraints on which the determination is based.

(k) 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) and any other applicable provision of law, take action to relocate its spectrum use to other frequencies that are reserved for Federal use or to consolidate its spectrum use with other Federal Government stations in a manner that maximizes the spectrum available for non-Federal use.

(l) "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, §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.)

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.

The Federal Advisory Committee Act, referred to in subsecs. (h)(3)(E) and (i)(9), is Pub. L. 92–463, Oct. 6, 1972, 86 Stat. 770, which is set out in the Appendix to Title 5, Government Organization and Employees.

Amendments

2015—Subsec. (g)(1). Pub. L. 114–74, §1005(c)(1)(A), struck out "authorized to use a band of eligible frequencies described in paragraph (2) and" after "Federal Government station" and inserted "eligible" after "auction of" and after "reallocation of".

Subsec. (g)(3)(A). Pub. L. 114–74, §1005(c)(1)(B), substituted "or the sharing of spectrum frequencies" for "previously assigned to such entity or the sharing of spectrum frequencies assigned to such entity".

Subsec. (h)(1). Pub. L. 114–74, §1005(c)(2), struck out "authorized to use any such frequency" after "a Federal entity".

Subsec. (h)(3)(C). Pub. L. 114–74, §1005(b), substituted "this subsection, subsection (i), and section 928(g)(2)(E) of this title" for "this subsection and subsection (i)".

2012—Subsec. (g). Pub. L. 112–96, §6701(a)(1)(A), substituted "Relocation of and spectrum sharing by Federal Government stations" for "Relocation of Federal Government stations" in heading.

Subsec. (g)(1). Pub. L. 112–96, §6701(a)(1)(B), amended par. (1) generally. Prior to amendment, text read as follows: "Any Federal entity that operates a Federal Government station assigned to a band of frequencies specified in paragraph (2) and that incurs relocation costs because of the reallocation of frequencies from Federal use to non-Federal use shall receive payment for such costs from the Spectrum Relocation Fund, in accordance with section 928 of this title. For purposes of this paragraph, Federal power agencies exempted under subsection (c)(4) of this section that choose to relocate from the frequencies identified for reallocation pursuant to subsection (a) of this section, are eligible to receive payment under this paragraph."

Subsec. (g)(2)(B). Pub. L. 112–96, §6701(a)(1)(C), amended subpar. (B) generally. Prior to amendment, subpar. (B) read as follows: "any other band of frequencies reallocated from Federal use to non-Federal 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)), except for bands of frequencies previously identified by the National Telecommunications and Information Administration in the Spectrum Reallocation Final Report, NTIA Special Publication 95–32 (1995)."

Subsec. (g)(3). Pub. L. 112–96, §6701(a)(1)(D), amended par. (3) generally. Prior to amendment, par. (3) defined relocation costs.

Subsec. (g)(4). Pub. L. 112–96, §6701(a)(1)(E)(i), which directed substitution of "relocation or sharing costs" for "relocations costs" in heading, was executed by making the substitution for "relocation costs" to reflect the probable intent of Congress.

Subsec. (g)(4)(A). Pub. L. 112–96, §6701(a)(1)(E)(ii), (iii), substituted "relocation or sharing costs" for "relocation costs" and inserted "or sharing" after "such relocation".

Subsec. (g)(4)(B). Pub. L. 112–96, §6701(a)(1)(E)(ii), substituted "relocation or sharing costs" for "relocation costs".

Subsec. (g)(5). Pub. L. 112–96, §6701(a)(1)(F), substituted "relocation or sharing costs" for "relocation costs" and inserted "or sharing" after "for relocation".

Subsec. (g)(6). Pub. L. 112–96, §6701(a)(1)(G), amended par. (6) generally. Prior to amendment, text read as follows: "The NTIA shall take such actions as necessary to ensure the timely relocation of Federal entities' spectrum-related operations from frequencies defined in paragraph (2) to frequencies or facilities of comparable capability. Upon a finding by the NTIA that a Federal entity has achieved comparable capability of systems by relocating to a new frequency assignment or by utilizing an alternative technology, the NTIA shall terminate the entity's authorization and notify the Commission that the entity's relocation has been completed. The NTIA shall also terminate such entity's authorization if the NTIA determines that the entity has unreasonably failed to comply with the timeline for relocation submitted by the Director of the Office of Management and Budget under section 928(d)(2)(B) of this title."

Subsecs. (h) to (l). Pub. L. 112–96, §6701(a)(2), (3), added subsecs. (h) to (j) and redesignated former subsecs. (h) and (i) as (k) and (l), respectively.

2004—Subsec. (g). Pub. L. 108–494 added pars. (1) to (6) and struck out former pars. (1) to (3) which related to relocation of Federal Government stations in general, process for relocation, and right to reclaim.

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, §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, §3002(e)(2)(A), (B), substituted "Initial reallocation report" for "In general" in heading and inserted "in the initial report required by subsection (a)" after "recommend for reallocation" in text.

Subsec. (b)(2). Pub. L. 105–33, §3002(e)(2)(C), inserted "or (3)" after "paragraph (1)" in two places.

Subsec. (b)(3). Pub. L. 105–33, §3002(e)(2)(D), added par. (3).

Subsec. (d)(4). Pub. L. 105–33, §3002(e)(3), substituted "initial report" for "final report".

Subsecs. (f) to (i). Pub. L. 105–33, §3002(d)(1), added subsecs. (f) to (i).

Spectrum Management Authority Retained

Pub. L. 108–494, title II, §208(a), Dec. 23, 2004, 118 Stat. 3996, provided that: "Except as provided with respect to the bands of frequencies identified in section 113(g)(2)(A) of the National Telecommunications and Information Administration Organization Act (47 U.S.C. 923(g)(2)(A)) as amended by this title, nothing in this title [see Short Title of 2004 Amendment note set out under section 901 of this title] or the amendments made by this title shall be construed as limiting the Federal Communications Commission's authority to allocate bands of frequencies that are reallocated from Federal use to non-Federal use for unlicensed, public safety, shared, or non-commercial use."

Reports on Costs of Relocations

Pub. L. 105–261, div. A, title X, §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."

1 So in original. Probably should be followed by "the".

§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;

(C) the reassignment would seriously jeopardize public health or safety;

(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

For purposes of paragraph (1), a frequency may not be substituted for a frequency identified and recommended by the report of the Secretary under section 923(a) of this title unless the substituted frequency also meets each of the criteria specified by section 923(a) of this title.

(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.)

Amendments

1997—Subsec. (a)(1). Pub. L. 105–33, §3002(d)(2)(A), substituted "subsection (a), (d)(1), or (f)" for "subsection (a) or (d)(1)".

Subsec. (a)(2). Pub. L. 105–33, §3002(d)(2)(B), substituted "any such 6-month period" for "either such 6-month period".

§925. Distribution of frequencies by Commission

(a) Allocation and assignment of immediately available frequencies

With respect to the frequencies made available for immediate reallocation pursuant to section 923(e)(2) of this title, the Commission, not later than 18 months after August 10, 1993, shall issue regulations to allocate such frequencies and shall propose regulations to assign such frequencies.

(b) Allocation and assignment of remaining available frequencies

With 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

(C) the safety of life and property in accordance with the policies of section 1 of the 1934 Act (47 U.S.C. 151);


(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.

(c) Allocation and assignment of frequencies identified in second reallocation report

(1) Plan and implementation

With respect to the frequencies made available for reallocation pursuant to section 923(b)(3) of this title, the Commission shall, not later than one year after receipt of the second reallocation report required by section 923(a) of this title, prepare, submit to the President and the Congress, and implement, a plan for the immediate allocation and assignment under the 1934 Act [47 U.S.C. §151 et seq.] of all such frequencies in accordance with section 309(j) of such Act [47 U.S.C. 309(j)].

(2) Contents

The plan prepared by the Commission under paragraph (1) shall consist of a schedule of allocation and assignment of those frequencies in accordance with section 309(j) of the 1934 Act in time for the assignment of those licenses or permits by September 30, 2002.

(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.)

References in Text

For definition of the 1934 Act, referred to in subsecs. (b) and (c)(1), see section 921(3) of this title.

Amendments

1997—Subsec. (b). Pub. L. 105–33, §3002(e)(4)(A), substituted "the initial reallocation report required" for "the report required" in introductory provisions.

Subsec. (c). Pub. L. 105–33, §3002(e)(4)(B), added subsec. (c).

Accelerated Availability for Auction of 1,710–1,755 Megahertz From Initial Reallocation Report

Pub. L. 105–33, title III, §3002(b), Aug. 5, 1997, 111 Stat. 260, provided that: "The band of frequencies located at 1,710–1,755 megahertz identified in the initial reallocation report under section 113(a) of the National Telecommunications and Information Administration Act (47 U.S.C. 923(a)) shall, notwithstanding the timetable recommended under section 113(e) of such Act and section 115(b)(1) of such Act [47 U.S.C. 925(b)(1)], be available in accordance with this subsection for assignment for commercial use. The Commission shall assign licenses for such use by competitive bidding commenced after January 1, 2001, pursuant to section 309(j) of the Communications Act of 1934 (47 U.S.C. 309(j))."

Commission Obligation To Make Additional Spectrum Available by Auction

Pub. L. 105–33, title III, §3002(c), Aug. 5, 1997, 111 Stat. 261, provided that:

"(1) In general.—The Commission shall complete all actions necessary to permit the assignment by September 30, 2002, by competitive bidding pursuant to section 309(j) of the Communications Act of 1934 (47 U.S.C. 309(j)), of licenses for the use of bands of frequencies that—

"(A) in the aggregate span not less than 55 megahertz;

"(B) are located below 3 gigahertz;

"(C) have not, as of the date of enactment of this Act [Aug. 5, 1997]—

"(i) been designated by Commission regulation for assignment pursuant to such section;

"(ii) been identified by the Secretary of Commerce pursuant to section 113 of the National Telecommunications and Information Administration Organization Act (47 U.S.C. 923);

"(iii) been allocated for Federal Government use pursuant to section 305 of the Communications Act of 1934 (47 U.S.C. 305);

"(iv) been designated for reallocation under section 337 of the Communications Act of 1934 [47 U.S.C. 337] (as added by this Act); or

"(v) been allocated or authorized for unlicensed use pursuant to part 15 of the Commission's regulations (47 C.F.R. Part 15), if the operation of services licensed pursuant to competitive bidding would interfere with operation of end-user products permitted under such regulations;

"(D) include frequencies at 2,110–2,150 megahertz; and

"(E) include 15 megahertz from within the bands of frequencies at 1,990–2,110 megahertz.

"(2) Criteria for Reassignment.—In making available bands of frequencies for competitive bidding pursuant to paragraph (1), the Commission shall—

"(A) seek to promote the most efficient use of the electromagnetic spectrum;

"(B) consider the cost of relocating existing uses to other bands of frequencies or other means of communication;

"(C) consider the needs of existing public safety radio services (as such services are described in section 309(j)(2)(A) of the Communications Act of 1934, as amended by this Act);

"(D) comply with the requirements of international agreements concerning spectrum allocations; and

"(E) coordinate with the Secretary of Commerce when there is any impact on Federal Government spectrum use.

"(3) Use of bands at 2,110–2,150 megahertz.—The Commission shall reallocate spectrum located at 2,110–2,150 megahertz for assignment by competitive bidding unless the Commission determines that auction of other spectrum (A) better serves the public interest, convenience, and necessity, and (B) can reasonably be expected to produce greater receipts. If the Commission makes such a determination, then the Commission shall, within 2 years after the date of enactment of this Act [Aug. 5, 1997], identify an alternative 40 megahertz, and report to the Congress an identification of such alternative 40 megahertz for assignment by competitive bidding.

"(4) Use of 15 megahertz from bands at 1,990–2,110 megahertz.—The Commission shall reallocate 15 megahertz from spectrum located at 1,990–2,110 megahertz for assignment by competitive bidding unless the President determines such spectrum cannot be reallocated due to the need to protect incumbent Federal systems from interference, and that allocation of other spectrum (A) better serves the public interest, convenience, and necessity, and (B) can reasonably be expected to produce comparable receipts. If the President makes such a determination, then the President shall, within 2 years after the date of enactment of this Act, identify alternative bands of frequencies totalling 15 megahertz, and report to the Congress an identification of such alternative bands for assignment by competitive bidding.

"(5) Notification to the Secretary of Commerce.—The Commission shall attempt to accommodate incumbent licensees displaced under this section by relocating them to other frequencies available for allocation by the Commission. The Commission shall notify the Secretary of Commerce whenever the Commission is not able to provide for the effective relocation of an incumbent licensee to a band of frequencies available to the Commission for assignment. The notification shall include—

"(A) specific information on the incumbent licensee;

"(B) the bands the Commission considered for relocation of the licensee;

"(C) the reasons the licensee cannot be accommodated in such bands; and

"(D) the bands of frequencies identified by the Commission that are—

"(i) suitable for the relocation of such licensee; and

"(ii) allocated for Federal Government use, but that could be reallocated pursuant to part B of the National Telecommunications and Information Administration Organization Act (as amended by this Act) [part B (§§131–135) of title I of Pub. L. 102–538, see Tables for classification]."

§926. Authority to recover reassigned frequencies

(a) Authority of President

Subsequent to the withdrawal of assignment to Federal Government stations pursuant to section 924 of this title, the President may reclaim reassigned frequencies for reassignment to Federal Government stations in accordance with this section.

(b) Procedure for reclaiming frequencies

(1) Unallocated frequencies

If the frequencies to be reclaimed have not been allocated or assigned by the Commission pursuant to the 1934 Act [47 U.S.C. 151 et seq.], the President shall follow the procedures for substitution of frequencies established by section 924(b) of this title.

(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.

(c) Costs of reclaiming frequencies

The Federal Government shall bear all costs of reclaiming frequencies pursuant to this section, including the cost of equipment which is rendered unusable, the cost of relocating operations to a different frequency, and any other costs that are directly attributable to the reclaiming of the frequency pursuant to this section, and there are authorized to be appropriated such sums as may be necessary to carry out the purposes of this section.

(d) Effective date of reclaimed frequencies

The Commission shall not withdraw licenses for any reclaimed frequencies until the end of the fiscal year following the fiscal year in which a statement under section 924(b)(1)(B) of this title pertaining to such frequencies is received by the Commission.

(e) Effect on other law

Nothing in this section shall be construed to limit or otherwise affect the authority of the President under section 706 of the 1934 Act (47 U.S.C. 606).

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

References in Text

For definition of the 1934 Act, referred to in subsec. (b)(1), see section 921(3) of this title.

§927. Existing allocation and transfer authority retained

(a) Additional reallocation

Nothing in this subchapter prevents or limits additional reallocation of spectrum from the Federal Government to other users.

(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

There is established on the books of the Treasury a separate fund to be known as the "Spectrum Relocation Fund" (in this section referred to as the "Fund"), which shall be administered by the Office of Management and Budget (in this section referred to as "OMB"), in consultation with the NTIA.

(b) Crediting of receipts

The Fund shall be credited with the amounts specified in section 309(j)(8)(D) of this title.

(c) Use of funds

The amounts in the Fund from auctions of eligible frequencies are authorized to be used to pay relocation or sharing costs of an eligible Federal entity incurring such costs with respect to relocation from or sharing of those frequencies.

(d) Fund availability

(1) Appropriation

There are hereby appropriated from the Fund such sums as are required to pay the relocation or sharing costs specified in subsection (c).

(2) Transfer conditions

None 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

Subject to subparagraph (B), the Director of OMB may transfer to an eligible Federal entity, at any time (including prior to a scheduled auction), such sums as may be available in the Fund to pay relocation or sharing costs related to pre-auction estimates or research, as such costs are described in section 923(g)(3)(A)(iii) of this title.

(B) Notification

No 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 section 798(b) of title 18) regarding the relocation process, on a need-to-know basis, to assist the non-Federal user in the relocation process with such eligible Federal entity or other eligible Federal entities.

(C) Applicability to certain costs

(i) In general

The Director of OMB may transfer under subparagraph (A) not more than $10,000,000 for costs incurred after June 28, 2010, but before February 22, 2012.

(ii) Supplement not supplant

Any amounts transferred by the Director of OMB pursuant to clause (i) shall be in addition to any amounts that the Director of OMB may transfer for costs incurred on or after February 22, 2012.

(4) Reversion of unused funds

Any amounts in the Fund that are remaining after the payment of the relocation or sharing costs that are payable from the Fund shall revert to and be deposited in the general fund of the Treasury, for the sole purpose of deficit reduction, not later than 8 years after the date of the deposit of such proceeds to the Fund, unless within 60 days in advance of the reversion of such funds, the Director of OMB, in consultation with the NTIA, notifies the congressional committees described in paragraph (2)(C) that such funds are needed to complete or to implement current or future relocation or sharing arrangements.

(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

An eligible Federal entity that has received such amounts shall report its expenditures to OMB and shall transfer any amounts in excess of actual relocation or sharing costs back to the Fund immediately after the NTIA has notified the Commission that the relocation of the entity or implementation of the sharing arrangement by the entity is complete, or has determined that such entity has unreasonably failed to complete such relocation or the implementation of such arrangement in accordance with the timeline required by subsection (d)(2)(B).

(f) Additional payments from Fund

(1) Amounts available

Notwithstanding subsections (c) through (e), after February 22, 2012, there are appropriated from the Fund and available to the Director of OMB for use in accordance with paragraph (2) not more than 10 percent of the amounts deposited in the Fund from auctions occurring after such date of licenses for the use of spectrum vacated by eligible Federal entities.

(2) Use of amounts

(A) In general

The Director of OMB, in consultation with the NTIA, may use amounts made available under paragraph (1) to make payments to eligible Federal entities that are implementing a transition plan submitted under section 923(h)(1) of this title in order to encourage such entities to complete the implementation more quickly, thereby encouraging timely access to the eligible frequencies that are being reallocated for exclusive non-Federal use or shared use.

(B) Conditions

In 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 available

Notwithstanding 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

The Director of OMB may use amounts made available under paragraph (1) to make payments requested by Federal entities for research and development, engineering studies, economic analyses, activities with respect to systems, or other planning activities intended to improve the efficiency and effectiveness of the spectrum use of Federal entities in order to make available frequencies described in subparagraph (C) for reallocation for non-Federal use or shared Federal and non-Federal use, or a combination thereof, and for auction in accordance with such reallocation.

(B) Systems that improve efficiency and effectiveness of Federal spectrum use

For 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 described

The 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) Conditions

The 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

Not later than 120 days after a Federal entity submits a plan under subparagraph (D)(i)(I) to the Technical Panel established under section 923(h)(3) of this title, the Technical Panel shall approve or disapprove such plan.

(ii) Criteria for review

In 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

In determining whether to make payments under subsections (f) and (g), the Director of OMB shall, to the extent practicable, prioritize payments under subsection (g).

(i) Restriction on use of Funds

No 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.)

Amendments

2018—Subsec. (d)(3)(B)(i)(II). Pub. L. 115–141, §612, substituted "8 years" for "5 years".

Subsec. (e)(1)(D), (E). Pub. L. 115–141, §613, added subpars. (D) and (E).

2015—Subsecs. (g) to (i). Pub. L. 114–74 added subsecs. (g) and (h) and redesignated former subsec. (g) as (i).

2012Pub. L. 112–96, §6702(1), substituted "relocation or sharing costs" for "relocation costs" wherever appearing.

Subsec. (c). Pub. L. 112–96, §6702(2), amended subsec. (c) generally. Prior to amendment, text read as follows: "The amounts in the Fund from auctions of eligible frequencies are authorized to be used to pay relocation or sharing costs, as defined in section 923(g)(3) of this title, of an eligible Federal entity incurring such costs with respect to relocation from those frequencies."

Subsec. (d)(2)(A). Pub. L. 112–96, §6702(3)(A)(iv), added subpar. (A). Former subpar. (A) redesignated (B).

Pub. L. 112–96, §6702(3)(A)(i), inserted "or sharing" before the semicolon.

Subsec. (d)(2)(B). Pub. L. 112–96, §6702(3)(A)(iii), redesignated subpar. (A) as (B). Former subpar. (B) redesignated (C).

Pub. L. 112–96, §6702(3)(A)(ii), inserted "or sharing" before period at end.

Subsec. (d)(2)(C). Pub. L. 112–96, §6702(3)(A)(iii), redesignated subpar. (B) as (C).

Subsec. (d)(3). Pub. L. 112–96, §6702(3)(B), (C), added par. (3) and struck out former par. (3). Prior to amendment, text read as follows: "Any auction proceeds in the Fund that are remaining after the payment of the relocation or sharing costs that are payable from the Fund shall revert to and be deposited in the general fund of the Treasury not later than 8 years after the date of the deposit of such proceeds to the Fund."

Subsec. (d)(4). Pub. L. 112–96, §6702(3)(C), added par. (4).

Subsec. (e)(1)(B)(i). Pub. L. 112–96, §6702(4)(A)(i), substituted "subsection (d)(2)(B)" for "subsection (d)(2)(A)".

Subsec. (e)(1)(B)(ii). Pub. L. 112–96, §6702(4)(A)(ii), substituted "subsection (d)(2)(C)" for "subsection (d)(2)(B)".

Subsec. (e)(2). Pub. L. 112–96, §6702(4)(B), substituted "relocation of the entity or implementation of the sharing arrangement by the entity" for "entity's relocation" and "subsection (d)(2)(B)" for "subsection (d)(2)(A)" and inserted "or the implementation of such arrangement" after "such relocation".

Subsecs. (f), (g). Pub. L. 112–96, §6702(5), added subsecs. (f) and (g).

2009—Subsec. (e)(1)(B)(ii) to (iv). Pub. L. 111–8 inserted "and" after semicolon in cl. (ii), substituted period for "; and" in cl. (iii), and struck out cl. (iv) which read as follows: "the Comptroller General shall, within 30 days after receiving such plan, review such plan and submit to such committees an assessment of the explanation for the subsequent transfer or transfers."

Annual Report

Pub. L. 108–494, title II, §207, Dec. 23, 2004, 118 Stat. 3996, provided that: "The National Telecommunications and Information Administration shall submit an annual report to the Committees on Appropriations and Energy and Commerce of the House of Representatives, the Committees on Appropriations and Commerce, Science, and Transportation of the Senate, and the Comptroller General on—

"(1) the progress made in adhering to the timelines applicable to relocation from eligible frequencies required under [former] section 118(d)(2)(A) of the National Telecommunications and Information Administration Organization Act [now 47 U.S.C. 928(d)(2)(B)], separately stated on a communication system-by-system basis and on an auction-by-auction basis; and

"(2) with respect to each relocated communication system and auction, a statement of the estimate of relocation costs required under section 113(g)(4) of such Act [47 U.S.C. 923(g)(4)], the actual relocations costs incurred, and the amount of such costs paid from the Spectrum Relocation Fund."

§929. National security and other sensitive information

(a) Determination

If the head of an Executive agency (as defined in section 105 of title 5) determines that public disclosure of any information contained in a notification or report required by section 923 or 928 of this title would reveal classified national security information, or other information for which there is a legal basis for nondisclosure and the public disclosure of which would be detrimental to national security, homeland security, or public safety or would jeopardize a law enforcement investigation, the head of the Executive agency shall notify the Assistant Secretary of that determination prior to the release of such information.

(b) Inclusion in annex

The head of the Executive agency shall place the information with respect to which a determination was made under subsection (a) in a separate annex to the notification or report required by section 923 or 928 of this title. The annex shall be provided to the subcommittee of primary jurisdiction of the congressional committee of primary jurisdiction in accordance with appropriate national security stipulations but shall not be disclosed to the public or provided to any unauthorized person through any means.

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