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Calendar No. 314
108th CONGRESS
1st Session
H. R. 1320
[Report No. 108-168]
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
June 12, 2003
Received; read twice and referred to the Committee on Commerce,
Science, and Transportation
October 17, 2003
Reported by Mr. McCain, with an amendment
[Insert the part printed in italic]
_______________________________________________________________________
AN ACT
To amend the National Telecommunications and Information Administration
Organization Act to facilitate the reallocation of spectrum from
governmental to commercial users.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Commercial Spectrum Enhancement
Act''.
SEC. 2. RELOCATION OF ELIGIBLE FEDERAL ENTITIES FOR THE REALLOCATION OF
SPECTRUM FOR COMMERCIAL PURPOSES.
Section 113(g) of the National Telecommunications and Information
Administration Organization Act (47 U.S.C. 923(g)) is amended by
striking paragraphs (1) through (3) and inserting the following:
``(1) Eligible federal entities.--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 118 of this Act. 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 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).
``(3) Definition of relocation costs.--For purposes of this
subsection, the term `relocation costs' means the costs
incurred by a Federal entity to achieve comparable capability
of systems, regardless of whether that capability is achieved
by relocating to a new frequency assignment or by utilizing an
alternative technology. Such costs include--
``(A) the costs of any modification or replacement
of equipment, software, facilities, operating manuals,
training costs, or regulations that are attributable to
relocation;
``(B) the costs of all engineering, equipment,
software, site acquisition and construction costs, as
well as any legitimate and prudent transaction expense,
including outside consultants, and reasonable
additional costs incurred by the Federal entity that
are attributable to relocation, including increased
recurring costs associated with the replacement
facilities;
``(C) the costs of engineering studies, economic
analyses, or other expenses reasonably incurred in
calculating the estimated relocation costs that are
provided to the Commission pursuant to paragraph (4) of
this subsection;
``(D) the one-time costs of any modification of
equipment reasonably necessary to accommodate
commercial use of such frequencies prior to the
termination of the Federal entity's primary allocation
or protected status, when the eligible frequencies as
defined in paragraph (2) of this subsection are made
available for private sector uses by competitive
bidding and a Federal entity retains primary allocation
or protected status in those frequencies for a period
of time after the completion of the competitive bidding
process; and
``(E) the costs associated with the accelerated
replacement of systems and equipment if such
acceleration is necessary to ensure the timely
relocation of systems to a new frequency assignment.
``(4) Notice to commission of estimated relocation 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 costs and
timelines for such relocation.
``(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 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 costs to the Commission under paragraph (4)(A),
submit 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 a copy of such estimate and
the timelines for relocation.
``(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
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 118(d)(2)(B).''.
SEC. 3. MINIMUM AUCTION RECEIPTS AND DISPOSITION OF PROCEEDS.
(a) Auction Design.--Section 309(j)(3) of the Communications Act of
1934 (47 U.S.C. 309(j)(3)) is amended--
(1) by striking ``and'' at the end of subparagraph (D);
(2) by striking the period at the end of subparagraph (E)
and inserting ``; and''; and
(3) by adding at the end the following new subparagraph:
``(F) for any auction of eligible frequencies
described in section 113(g)(2) of the National
Telecommunications and Information Administration
Organization Act (47 U.S.C. 923(g)(2)), the recovery of
110 percent of estimated relocation costs as provided
to the Commission pursuant to section 113(g)(4) of such
Act.''.
(b) Special Auction Provisions for Eligible Frequencies.--Section
309(j) of such Act is further amended by adding at the end the
following new paragraph:
``(15) Special auction provisions for eligible
frequencies.--
``(A) Special regulations.--The Commission shall
revise the regulations prescribed under paragraph
(4)(F) of this subsection to prescribe methods by which
the total cash proceeds from any auction of eligible
frequencies described in section 113(g)(2) of the
National Telecommunications and Information
Administration Organization Act (47 U.S.C. 923(g)(2))
shall at least equal 110 percent of the total estimated
relocation costs provided to the Commission pursuant to
section 113(g)(4) of such Act.
``(B) Conclusion of auctions contingent on minimum
proceeds.--The Commission shall not conclude any
auction of eligible frequencies described in section
113(g)(2) of such Act if the total cash proceeds
attributable to such spectrum are less than 110 percent
of the total estimated relocation costs provided to the
Commission pursuant to section 113(g)(4) of such Act.
If the Commission is unable to conclude an auction for
the foregoing reason, the Commission shall cancel the
auction, return within 45 days after the auction
cancellation date any deposits from participating
bidders held in escrow, and absolve such bidders from
any obligation to the United States to bid in any
subsequent reauction of such spectrum.
``(C) Authority to issue prior to
deauthorization.--In any auction conducted under the
regulations required by subparagraph (A), the
Commission may grant a license assigned for the use of
eligible frequencies prior to the termination of an
eligible Federal entity's authorization. However, the
Commission shall condition such license by requiring
that the licensee cannot cause harmful interference to
such Federal entity until such entity's authorization
has been terminated by the National Telecommunications
and Information Administration.''.
(c) Deposit of Proceeds.--Paragraph (8) of section 309(j) of the
Communications Act of 1934 (47 U.S.C. 309(j)) is amended--
(1) in subparagraph (A), by inserting ``or subparagraph
(D)'' after ``subparagraph (B)''; and
(2) by adding at the end the following new subparagraph:
``(D) Disposition of cash proceeds.--Cash proceeds
attributable to the auction of any eligible frequencies
described in section 113(g)(2) of the National
Telecommunications and Information Administration
Organization Act (47 U.S.C. 923(g)(2)) shall be
deposited in the Spectrum Relocation Fund established
under section 118 of such Act, and shall be available
in accordance with that section.''.
SEC. 4. ESTABLISHMENT OF FUND AND PROCEDURES.
Part B of the National Telecommunications and Information
Administration Organization Act is amended by adding after section 117
(47 U.S.C. 927) the following new section:
``SEC. 118. 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 the Communications Act of
1934 (47 U.S.C. 309(j)(8)(D)).
``(c) Used To Pay Relocation Costs.--The amounts in the Fund from
auctions of eligible frequencies are authorized to be used to pay
relocation costs, as defined in section 113(g)(3) of this Act, of an
eligible Federal entity incurring such costs with respect to relocation
from those frequencies.
``(d) Fund Availability.--
``(1) Appropriation.--There are hereby appropriated from
the Fund such sums as are required to pay the relocation 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 Director of OMB has determined, in
consultation with the NTIA, the appropriateness of such
costs and the timeline for relocation; and
``(B) until 30 days after the Director of the OMB
has submitted 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 a detailed plan describing how the sums
transferred from the Fund will be used to pay
relocation costs in accordance with such subsection and
the timeline for such relocation.
``(3) Reversion of unused funds.--Any auction proceeds in
the Fund that are remaining after the payment of the relocation
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.
``(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 113(g)(1) of this Act.
``(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)(A);
``(ii) the notice to the committees
containing the plan required by subsection
(d)(2)(B) shall be not less than 45 days prior
to the date of the transfer that causes such
excess above 10 percent;
``(iii) such notice shall include, in
addition to such plan, an explanation of need
for such subsequent transfer or transfers; and
``(iv) 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.
``(C) Such transferred amounts shall be credited to
the appropriations account of the eligible Federal
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