47 U.S.C. § 923 — Identification of reallocable frequencies

Page 384 TITLE 47—TELECOMMUNICATIONS § 922 interagency review and assessment of the progress made in implementation of national spectrum plan- ning, the reallocation of Federal Government spectrum to non-Federal use, and the implications for such re- allocations to the affected Federal executive agencies and to submit to the President and committees of Con- gress, not later than Oct. 1, 2000, a report on the assess- ment. § 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 nec- essary to accommodate those uses; and (4) actions necessary to promote the effi- cient 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 Au- gust 5, 1997, prepare and submit to the President and the Congress a report identifying and rec- ommending for reallocation bands of fre- quencies— (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 Gov- ernment; (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 Gov- ernment use) will not result in costs to the Federal Government, or losses of services or benefits to the public, that are excessive in re- lation 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 bene- fits 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 re- allocation 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 para- graphs (1) through (5) of subsection (a). Such bands of frequencies shall include bands of fre- quencies, 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) rec- ommends be partially retained for use by Fed- eral 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 re- quired by paragraph (1) or (3) of this sub- section, 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 as- signments of the band to Federal Govern- ment 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 sub- stantially 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 coordina- tion procedures that the Commission and the Secretary shall jointly establish and im- plement to ensure against harmful inter- ference. (3) Second reallocation report In accordance with the provisions of this section, the Secretary shall recommend for re- allocation 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 fre- quencies that— (A) in the aggregate span not less than 12 megahertz; (B) are located below 3 gigahertz; and (C) meet the criteria specified in para- graphs (1) through (5) of subsection (a). (c) Criteria for identification (1) Needs of the Federal Government In determining whether a band of fre- quencies meets the criteria specified in sub- section (a)(2), the Secretary shall— (A) consider whether the band of fre- quencies is used to provide a communica- tions 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 per- mitted under subsection (b)(2)); Page 385 TITLE 47—TELECOMMUNICATIONS § 923 (iii) the development and use of new communications technologies; and (iv) the use of nonradiating communica- tions systems where practicable; and (C) seek to avoid— (i) serious degradation of Federal Gov- ernment services and operations; (ii) excessive costs to the Federal Gov- ernment 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 as- signed 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 tele- communications 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 fre- quencies meets the criteria specified in sub- section (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, com- mercial users could share the frequency with amateur radio licensees; and (D) the activities of foreign governments in making frequencies available for experi- mentation or commercial assignments in order to support their domestic manufactur- ers 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 pur- pose under this subchapter with regard to any frequency assignment to, or any fre- quency 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 Fed- eral 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 ‘‘Fed- eral power agency’’ means the Tennessee Valley Authority, the Bonneville Power Ad- ministration, the Western Area Power Ad- ministration, the Southwestern Power Ad- ministration, the Southeastern Power Ad- ministration, or the Alaska Power Adminis- tration. (5) Limitation on reallocation None of the frequencies recommended for re- allocation in the reports required by this sub- section 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 avail- able, and submit to the President, the Con- gress, and the Commission a report which makes a preliminary identification of reallo- cable bands of frequencies which meet the cri- teria established by this section. (2) Public comment The Secretary shall provide interested per- sons 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 imme- diately transmit a copy of any such comment to the Commission. (3) Comment and recommendations from Com- mission The Commission shall, within 90 days after the conclusion of the period for comment pro- vided pursuant to paragraph (2), submit to the Secretary the Commission’s analysis of such comments and the Commission’s recommenda- tions for responses to such comments, to- gether with such other comments and rec- ommendations as the Commission deems ap- propriate. (4) Direct discussions The Secretary shall encourage and provide opportunity for direct discussions among com- mercial representatives and Federal Govern- ment users of the spectrum to aid the Sec- retary 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 rep- resentative of the Commission (and of the Sec- retary 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 Page 386 TITLE 47—TELECOMMUNICATIONS § 923 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 re- allocation bands of frequencies that in the aggregate span not less than 50 megahertz, that meet the criteria described in sub- section (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 effec- tive 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 con- tracted for to operate on identified fre- quencies; (C) consider the need to coordinate fre- quency use with other nations; and (D) take into account the relationship be- tween the costs to the Federal Government of changing to different frequencies and the benefits that may be obtained from commer- cial and other non-Federal uses of the reas- signed 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 Com- mission, and the Congress a report recom- mending for reallocation for use other than by Federal Government stations under section 305 of the 1934 Act (47 U.S.C. 305), bands of fre- quencies that are suitable for the licensees iden- tified in the Commission’s notice. The Commis- sion 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 Fed- eral 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 auc- tion of eligible spectrum frequencies or the re- allocation 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 identi- fied for reallocation pursuant to subsection (a) are eligible to receive payment under this paragraph. (2) Eligible frequencies The bands of eligible frequencies for pur- poses 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 reallo- cated 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 spec- trum frequencies (including the auction or a planned auction of the rights to use spec- trum frequencies on a shared basis with such entity) in order to achieve comparable capa- bility 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 re- placement of equipment, spares, associated ancillary equipment, software, facilities, operating manuals, training, or compli- ance with regulations that are attrib- utable to relocation or sharing; (ii) the costs of all engineering, equip- ment, software, site acquisition, and con- struction, 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 Fed- eral entity, and reasonable additional costs incurred by the Federal entity that are attributable to relocation or sharing, including increased recurring costs associ- ated with the replacement of facilities; (iii) the costs of research, engineering studies, economic analyses, or other ex- penses reasonably incurred in connection with— (I) calculating the estimated reloca- tion or sharing costs that are provided to the Commission pursuant to paragraph (4)(A); (II) determining the technical or oper- ational feasibility of relocation to 1 or more potential relocation bands; or Page 387 TITLE 47—TELECOMMUNICATIONS § 923 1 So in original. Probably should be followed by ‘‘the’’. (III) planning for or managing a reloca- tion or sharing arrangement (including spectrum coordination with auction win- ners); (iv) the one-time costs of any modifica- tion 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 com- petitive 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 alloca- tion or protected status for a period of time after the completion of the com- petitive bidding process, to accommo- date shared Federal and non-Federal use of such frequencies for such period; and (v) the costs associated with the acceler- ated replacement of systems and equip- ment 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 fre- quencies. (B) Comparable capability of systems For purposes of subparagraph (A), com- parable capability of systems— (i) may be achieved by relocating a Fed- eral Government station to a new fre- quency assignment, by relocating a Fed- eral Government station to a different ge- ographic location, by modifying Federal Government equipment to mitigate inter- ference or use less spectrum, in terms of bandwidth, geography, or time, and there- by permitting spectrum sharing (including sharing among relocated Federal entities and incumbents to make spectrum avail- able 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 reloca- tion 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 esti- mated 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 infor- mation regarding an alternative frequency as- signment or assignments to which their radiocommunications operations could be re- located for purposes of calculating the esti- mated 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 geo- graphic location of the Federal entities’ facili- ties 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 Rep- resentatives 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 esti- mate. (6) Implementation of procedures The NTIA shall take such actions as nec- essary to ensure the timely relocation of Fed- eral entities’ spectrum-related operations from frequencies described in paragraph (2) to frequencies or facilities of comparable capa- bility and to ensure the timely implementa- tion of arrangements for the sharing of fre- quencies 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 sub- mitted by the Director of the Office of Man- agement 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 com- mencement of any auction of eligible fre- quencies described in subsection (g)(2), a Fed- eral 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 ar- rangement. The NTIA shall specify, after pub- lic input, a common format for all Federal en- tities 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 el- igible frequencies to be auctioned, current as of the date of the submission of the plan. Page 388 TITLE 47—TELECOMMUNICATIONS § 923 (B) The geographic location of the facili- ties or systems of the Federal entity that use such frequencies. (C) The frequency bands used by such fa- cilities 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 fre- quencies, including timelines for specific ge- ographic locations in sufficient detail to in- dicate 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 transi- tion. (G) The plans and timelines of the Federal entity for— (i) using funds received from the Spec- trum Relocation Fund established by sec- tion 928 of this title; (ii) procuring new equipment and addi- tional personnel needed for relocation or sharing; (iii) field-testing and deploying new equipment needed for relocation or shar- ing; and (iv) hiring and relying on contract per- sonnel, 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 ex- pert. (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 indi- vidual 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 mem- ber’s term until a successor has taken of- fice. A vacancy shall be filled in the man- ner 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 serv- ices 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 Di- rector of OMB, adopt regulations to govern the workings of the Technical Panel. (E) Certain requirements inapplicable Chapter 10 of title 5 and sections 552 and 552b of title 5 shall not apply to the Tech- nical 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 Tech- nical Panel shall submit to the NTIA and to the Federal entity a report on the suffi- ciency of the plan, including whether the plan includes the information required by paragraph (2) and an assessment of the rea- sonableness of the proposed timelines and estimated relocation or sharing costs, in- cluding 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 insuf- ficient, the Federal entity shall, not later than 90 days after the submission of the re- port by the Technical Panel under subpara- graph (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 com- mencement of the auction described in para- Page 389 TITLE 47—TELECOMMUNICATIONS § 923 graph (1), the NTIA shall make the transition plan publicly available on its website. (6) Updates of transition plan As the Federal entity implements the tran- sition plan, it shall periodically update the plan to reflect any changed circumstances, in- cluding 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 in- cluded in the transition plan of a Federal en- tity 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 informa- tion that is available; and (ii) discuss as a factor under paragraph (2)(H) the extent of the classified informa- tion 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 Di- rector of OMB and the Secretary of Defense, shall adopt regulations to ensure that the information publicly released under para- graph (5) or (6) does not contain classified in- formation 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 execu- tion, timing, or cost of the transition plan submitted by the Federal entity under sub- section (h)(1), the Federal entity or the non- Federal user may request that the NTIA estab- lish a dispute resolution board to resolve the dispute. (2) Establishment of board (A) In general If the NTIA receives a request under para- graph (1), it shall establish a dispute resolu- tion board. (B) Membership and appointment The dispute resolution board shall be com- posed of 3 members, as follows: (i) A representative of the Office of Man- agement and Budget (in this subsection re- ferred 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 ter- minated 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 re- quired by a court hearing the appeal. (3) Procedures The dispute resolution board shall meet si- multaneously with representatives of the Fed- eral entity and the non-Federal user to discuss the dispute. The dispute resolution board may require the parties to make written submis- sions to it. (4) Deadline for decision The dispute resolution board shall rule on the dispute not later than 30 days after the re- quest was made to the NTIA under paragraph (1). (5) Assistance from Technical Panel The Technical Panel established under sub- section (h)(3) shall provide the dispute resolu- tion board with such technical assistance as the board requests. (6) Administrative support The NTIA shall provide the dispute resolu- tion 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 deci- sion. Each party shall bear its own costs and expenses, including attorneys’ fees, for any ap- peal 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 Chapter 10 of title 5 and sections 552 and 552b of title 5 shall not apply to a dispute resolu- tion board established under paragraph (2)(A). Page 390 TITLE 47—TELECOMMUNICATIONS § 923 (j) Relocation prioritized over sharing (1) In general In evaluating a band of frequencies for pos- sible 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 de- termines, in consultation with the Director of the Office of Management and Budget, that re- location of a Federal entity from the band is not feasible because of technical or cost con- straints. (2) Notification of Congress when sharing cho- sen 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 Trans- portation of the Senate and the Committee on Energy and Commerce of the House of Rep- resentatives 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 oper- ates on electromagnetic spectrum that has been identified in any reallocation report under this section shall, to the maximum extent prac- ticable 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 re- served for Federal use or to consolidate its spec- trum use with other Federal Government sta- tions in a manner that maximizes the spectrum available for non-Federal use. (l) ‘‘Federal entity’’ defined For purposes of this section, the term ‘‘Fed- eral entity’’ means any department, agency, or other instrumentality of the Federal Govern- ment 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; Pub. L. 117–286, § 4(a)(299), Dec. 27, 2022, 136 Stat. 4338.) Editorial Notes 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 2022—Subsec. (h)(3)(E). Pub. L. 117–286, § 4(a)(299)(A), substituted ‘‘Chapter 10 of title 5’’ for ‘‘The Federal Ad- visory Committee Act (5 U.S.C. App.)’’. Subsec. (i)(9). Pub. L. 117–286, § 4(a)(299)(B), sub- stituted ‘‘Chapter 10 of title 5’’ for ‘‘The Federal Advi- sory Committee Act (5 U.S.C. App.)’’. 2015—Subsec. (g)(1). Pub. L. 114–74, § 1005(c)(1)(A), struck out ‘‘authorized to use a band of eligible fre- quencies 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), sub- stituted ‘‘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 Fed- eral 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), sub- stituted ‘‘Relocation of and spectrum sharing by Fed- eral 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 fol- lows: ‘‘Any Federal entity that operates a Federal Gov- ernment station assigned to a band of frequencies spec- ified 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 accord- ance with section 928 of this title. For purposes of this paragraph, Federal power agencies exempted under sub- section (c)(4) of this section that choose to relocate from the frequencies identified for reallocation pursu- ant to subsection (a) of this section, are eligible to re- ceive payment under this paragraph.’’ Subsec. (g)(2)(B). Pub. L. 112–96, § 6701(a)(1)(C), amend- ed subpar. (B) generally. Prior to amendment, subpar. (B) read as follows: ‘‘any other band of frequencies re- allocated 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 Telecommuni- cations and Information Administration in the Spec- trum Reallocation Final Report, NTIA Special Publica- tion 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 re- flect 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 ‘‘reloca- tion costs’’ and inserted ‘‘or sharing’’ after ‘‘such relo- cation’’. Subsec. (g)(4)(B). Pub. L. 112–96, § 6701(a)(1)(E)(ii), sub- stituted ‘‘relocation or sharing costs’’ for ‘‘relocation costs’’. Subsec. (g)(5). Pub. L. 112–96, § 6701(a)(1)(F), sub- stituted ‘‘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 fol- lows: ‘‘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 com- parable 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 Page 391 TITLE 47—TELECOMMUNICATIONS § 924 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 sub- secs. (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 exist- ing 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 con- cerned of the marginal costs anticipated to be associ- ated with such relocation or with modifications nec- essary to accommodate prospective licensees. The Com- mission in turn shall notify potential bidders of the es- timated 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 limita- tion, only for such expenses of the Federal entity for which such funds were deposited under this para- graph.’’, 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 ‘‘Au- gust 10, 1993,’’ in introductory provisions. Subsec. (b)(1). Pub. L. 105–33, § 3002(e)(2)(A), (B), sub- stituted ‘‘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). Statutory Notes and Related Subsidiaries 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 al- locate 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 depart- ment or agency of the Federal Government shall in- clude in the annual budget submission of such depart- ment or agency to the Director of the Office of Manage- ment and Budget a report assessing the costs to be in- curred 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.’’ § 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 rec- ommends for immediate reallocation; (2) within any such 6-month period, limit the assignment to a Federal Government station of any frequency which the report rec- ommends be made immediately available for mixed use under section 923(b)(2) of this title; (3) by the delayed effective date rec- ommended by the Secretary under section 923(e) of this title (except as provided in sub- section (b)(4) of this section), withdraw or limit the assignment to a Federal Government station of any frequency which the report rec- ommends 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 as- signments; 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 cir- cumstance described in paragraph (2) exists, the President— (A) may substitute an alternative fre- quency or frequencies for the frequency that is subject to such determination and with- draw (or limit) the assignment of that alter- native frequency in the manner required by subsection (a); and (B) shall submit a statement of the reasons for taking the action described in subpara- graph (A) to the Commission, Committee on Energy and Commerce of the House of Rep- resentatives, and the Committee on Com- merce, 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 jeop- ardize the national defense interests of the United States; (B) the frequency proposed for reassign- ment is uniquely suited to meeting impor- tant governmental needs; (C) the reassignment would seriously jeop- ardize 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 ob- tained from commercial or other non-Fed- eral uses of the reassigned frequency; or (E) the reassignment will disrupt the ex- isting 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 identi-