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(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 ac
SEC. 113. (47 U.S.C. 923) IDENTIFICATION OF REALLOCABLE FRE
QUENCIES. (a) IDENTIFICATION REQUIRED.-The Secretary shall, within 18 months after the date of the enactment of the Omnibus Budget Reconciliation Act of 1993 and within 6 months after the date of enactment of the Balanced Budget Act of 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 (other than for Federal Government stations under section 305 of the 1934 Act);
(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 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 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 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 part 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 nonFederal 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) DEFINITION.-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 the date of enactment of the Omnibus Budget Reconciliation Act of 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 the date of the enactment of the Omnibus Budget Reconciliation Act of 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
(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.
1 Section 3002(b) of the Balanced Budget Act of 1997 (P.L. 105–33; 111 Stat. 260) contained the following provision with respect to the accelerated availability of certain spectrum:
(b) ACCELERATED AVAILABILITY FOR AUCTION OF 1,710–1,755 MEGAHERTZ FROM INITIAL REALLOCATION REPORT.—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, 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)).
(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 115(b);
(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 to incumbent licensees described in the Commission's notice.
(g) RELOCATION OF FEDERAL GOVERNMENT STATIONS.—1
1 Section 113(g) of the National Telecommunications and Information Administration Organization Act was amended by subsection (c) of section 1064 of the Strom Thurmond National Defense Authorization Act for Fiscal Year 1999. The other provisions of that section are as follows: SEC. 1064. DEPARTMENT OF DEFENSE USE OF FREQUENCY SPECTRUM.
(a) FINDING.-Congress finds that the report submitted to Congress by the Secretary of Defense on April 2, 1998, regarding the reallocation of the frequency spectrum used or dedicated to the Department of Defense and the intelligence community does not include a discussion of the costs to the Department of Defense that are associated with past and potential future reallocations of the frequency spectrum, although such a discussion was to be included in the report as directed in connection with the enactment of the National Defense Authorization Act for Fiscal Year 1998.
(b) ADDITIONAL REPORT.— The Secretary of Defense shall, not later than October 31, 1998, submit to the Committee on Armed Services of the Senate and the Committee on National Security of the House of Representatives a report that discusses the costs referred to in subsection (a).
(d) REPORTS ON Costs OF RELOCATIONS.—The head of each department or agency of the Federal Government shall include in the annual budget submission of such department or agency