47 U.S.C. § 928 — Spectrum Relocation Fund

Page 394 TITLE 47—TELECOMMUNICATIONS § 927 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 ren- dered 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 pur- poses 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.) Editorial Notes 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 sec- tion 903(e) of this title, at any time allow fre- quencies allocated on a primary basis for Fed- eral Government use to be used by non-Fed- eral licensees on a mixed-use basis for the pur- pose of facilitating the prompt implementa- tion of new technologies or services and for other purposes; and (2) the Commission shall make any alloca- tion 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 Treas- ury a separate fund to be known as the ‘‘Spec- trum 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 eli- gible 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 fre- quencies. (d) Fund availability (1) Appropriation There are hereby appropriated from the Fund such sums as are required to pay the re- location or sharing costs specified in sub- section (c). (2) Transfer conditions None of the funds provided under this sub- section may be transferred to any eligible Fed- eral 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 avail- able such plan on its website as required by paragraph (5) of such section; (B) unless the Director of OMB has deter- mined, 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 Appro- priations and Energy and Commerce of the House of Representatives for approval, to the Committees on Appropriations and Com- merce, Science, and Transportation of the Senate for approval, and to the Comptroller General a detailed plan describing specifi- cally how the sums transferred from the Fund will be used to pay relocation or shar- ing costs in accordance with such subsection and the timeline for such relocation or shar- ing. Unless disapproved within 30 days, the amounts in the Fund shall be available imme- diately. If the plan is disapproved, the Direc- tor 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 esti- mates or research, as such costs are de- scribed in section 923(g)(3)(A)(iii) of this title. (B) Notification No funds may be transferred pursuant to subparagraph (A) unless— Page 395 TITLE 47—TELECOMMUNICATIONS § 928 (i) the notification provided under para- graph (2)(C) includes a certification from the Director of OMB that— (I) funds transferred before an auction will likely allow for timely implementa- tion of relocation or sharing, thereby in- creasing 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 fre- quencies with non-Federal users, includ- ing reasonable accommodation by the el- igible Federal entity for the use of eligi- ble frequencies by non-Federal users dur- ing the period that the entity is relo- cating 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 tran- sition 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 dis- cussion 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 ap- propriate security clearances any classi- fied information (as defined in section 798(b) of title 18) regarding the reloca- tion process, on a need-to-know basis, to assist the non-Federal user in the reloca- tion 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 remain- ing 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 para- graph (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 re- quired by subsection (d)(2)(B); (ii) the notice to the committees con- taining 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 cred- ited to the appropriations account of the eligi- ble Federal entity which has incurred, or will incur, such costs, and shall, subject to para- graph (2), remain available until expended. (D) At the request of an eligible Federal en- tity, the Director of the Office of Management and Budget (in this subsection referred to as ‘‘OMB’’) may transfer the amount under sub- paragraph (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 en- tity that is incurring relocation or sharing costs to accommodate sharing spectrum fre- quencies 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 avail- ability 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 imme- diately 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 no- tified 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 im- plementation of such arrangement in accord- ance with the timeline required by subsection (d)(2)(B). Page 396 TITLE 47—TELECOMMUNICATIONS § 928 (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 de- posited in the Fund from auctions occurring after such date of licenses for the use of spec- trum 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 el- igible Federal entities that are imple- menting a transition plan submitted under section 923(h)(1) of this title in order to en- courage such entities to complete the imple- mentation more quickly, thereby encour- aging timely access to the eligible fre- quencies that are being reallocated for ex- clusive 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 Fed- eral entity clears its use of such fre- quencies, and the need for such frequencies in order for the entity to conduct its es- sential 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 com- parable 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 Fed- eral entity is incurring relocation or shar- ing costs; and (iv) such payment may not be made until 30 days after the Director of OMB has noti- fied the congressional committees de- scribed in subsection (d)(2)(C). (g) Additional payments for research and devel- opment 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 Di- rector 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 No- vember 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 stud- ies, economic analyses, activities with re- spect to systems, or other planning activi- ties intended to improve the efficiency and effectiveness of the spectrum use of Federal entities in order to make available fre- quencies described in subparagraph (C) for reallocation for non-Federal use or shared Federal and non-Federal use, or a combina- tion thereof, and for auction in accordance with such reallocation. (B) Systems that improve efficiency and ef- fectiveness of Federal spectrum use For purposes of a payment under subpara- graph (A) for activities with respect to sys- tems that improve the efficiency and effec- tiveness of the spectrum use of Federal enti- ties, such systems include the following: (i) Systems that have increased functionality or that increase the ability of a Federal entity to accommodate spec- trum sharing with non-Federal entities. (ii) Systems that consolidate functions or services that have been provided using separate systems. (iii) Non-spectrum technology or sys- tems. (C) Frequencies described The frequencies described in this subpara- graph 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 con- ducted with such payment, are not identi- fied for auction. (D) Conditions The Director of OMB may not make a pay- ment to a Federal entity under subpara- graph (A)— (i) unless— (I) the Federal entity has submitted to the Technical Panel established under section 923(h)(3) of this title a plan de- scribing 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 sub- mitted the plan approved under subpara- graph (E) to the congressional commit- tees described in subsection (d)(2)(C); and (ii) until 60 days have elapsed after sub- mission 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 dis- approve such plan. (ii) Criteria for review In considering whether to approve or dis- approve a plan under this subparagraph, Page 397 TITLE 47—TELECOMMUNICATIONS § 929 the Technical Panel shall consider wheth- er— (I) the activities that the Federal enti- ty will conduct with the payment will— (aa) increase the probability of relo- cation from or sharing of Federal spec- trum; (bb) facilitate an auction intended to occur not later than 8 years after the payment; and (cc) increase the net expected auc- tion 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 pur- poses 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 in- curred 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 ac- cordance 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.) Editorial Notes AMENDMENTS 2018—Subsec. (d)(3)(B)(i)(II). Pub. L. 115–141, § 612, sub- stituted ‘‘8 years’’ for ‘‘5 years’’. Subsec. (e)(1)(D), (E). Pub. L. 115–141, § 613, added sub- pars. (D) and (E). 2015—Subsecs. (g) to (i). Pub. L. 114–74 added subsecs. (g) and (h) and redesignated former subsec. (g) as (i). 2012—Pub. L. 112–96, § 6702(1), substituted ‘‘relocation or sharing costs’’ for ‘‘relocation costs’’ wherever ap- pearing. 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 fre- quencies 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’’ be- fore the semicolon. Subsec. (d)(2)(B). Pub. L. 112–96, § 6702(3)(A)(iii), redes- ignated subpar. (A) as (B). Former subpar. (B) redesig- nated (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), redes- ignated 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 amend- ment, 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), sub- stituted ‘‘subsection (d)(2)(B)’’ for ‘‘subsection (d)(2)(A)’’. Subsec. (e)(1)(B)(ii). Pub. L. 112–96, § 6702(4)(A)(ii), sub- stituted ‘‘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 relo- cation’’ 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 sub- secs. (f) and (g). 2009—Subsec. (e)(1)(B)(ii) to (iv). Pub. L. 111–8 in- serted ‘‘and’’ after semicolon in cl. (ii), substituted pe- riod 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 expla- nation for the subsequent transfer or transfers.’’ Statutory Notes and Related Subsidiaries 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 an- nual 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 re- quired under [former] section 118(d)(2)(A) of the Na- tional Telecommunications and Information Admin- istration 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 infor- mation (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 no- tification or report required by section 923 or 928 of this title would reveal classified national se- curity information, or other information for which there is a legal basis for nondisclosure and the public disclosure of which would be det- rimental to national security, homeland secu- rity, or public safety or would jeopardize a law enforcement investigation, the head of the Exec- utive agency shall notify the Assistant Sec- retary 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 deter-