ACINA Legal Seminar UPDATE ON 800 MHZ PUBLIC SAFETY SPECTRUM REBANDING PROCESS

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ACI-NA Legal Seminar UPDATE ON 800 MHZ
PUBLIC SAFETY SPECTRUM REBANDING PROCESS

• Kansas City, MissouriSeptember 30, 2007
• Matthew C. Ames
• Miller Van Eaton

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Introduction

• FCC set up rebanding process to deal with
  interference between private users primarily
  Nextel (now Sprint) and public safety licensees.
• Example of problem Anne Arundel County, Maryland
  FCC rejected self-help.
• Nextel required to pay for cost of moving public
  safety licensees to new frequencies no cap on
  liability, but Nextel put up 2.5 B letter of
  credit and received additional 10 MHz of
  spectrum.
• If Nextel spends less than 4.8 B, less value of
  new spectrum and cost of reconfiguration, balance
  goes into U.S Treasury.

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Process

• Entire process originally scheduled to be
  completed 36 months from June 2005.
• Process is overseen by Transition Administrator
  Bearing Point, Baseline Telecom and Squire
  Sanders Dempsey.
• TA established four waves regions of country
  to complete process on staggered schedule.
• Wave 1 Northeast and West Coast, except for
  Canadian, Mexican borders.
• Wave 2 Central US, including less-populated
  border areas.
• Wave 3 Southeast NC, SC, GA, FL, AL, MS, LA
• Wave 4 Border regions.

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Process (contd)

• Each wave has two stages. Stage 1 move
  occupants of lower band. Stage 2 move holders
  of NPSPAC frequencies.
• Affected licensees negotiate with Sprint/Nextel
  on terms of agreements. Licensees entitled to
  compensation for planning, and for
  reconfiguration itself.
• Can negotiate two separate agreements Planning
  Funding Agreement and Frequency Reconfiguration
  Agreement or a single agreement depending on
  needs and circumstances.

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Timing

• Wave 1 supposed to be done by end of 2007 this
  is not likely to happen.
• Wave 2 scheduled to be done by April 2008
  clearly behind schedule.
• Wave 3 scheduled for June 2008 also lagging.
• Wave 4 depends on reaching treaties with Mexico
  and Canada, and that negotiation process is
  lagging.
• September 12, 2007, Public Notice Order extended
  certain dates.

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Negotiations

• TA must approve PFAs and RFAs, based on
  compensation for reasonable, prudent, and
  necessary expenses to achieve comparability.
  Sprint not required to pay for any system
  upgrades, although in practice some are required.
• Licensee can ask Sprint to pay outside vendors
  directly, or opt to receive funds itself for
  distribution to vendors. Most choose first
  option.
• TA established 3-month voluntary negotiation
  period, followed by 3-month mandatory
  negotiation period. If cant reach agreement
  within specified time, parties go to mediation.

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Negotiations (contd)

• Mediation conducted by TA. If parties dont
  reach settlement, mediator issues recommended
  resolution. If parties still dont agree, matter
  goes to FCC, where recommended resolution carries
  great weight.
• Process slowed by tough negotiating by Sprint
  company refused to disclose information about
  costs and forced confidentiality on licensees
  that reached agreements, and at the same time
  forced licensees to prove what is reasonable,
  prudent and necessary. TA supported this, but
  FCC finally expressly allowed information
  sharing.
• TA has tended to side with Sprint trying to
  force resolution and keep costs down.

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Conclusion

• If youre late youre not alone, but if in Waves
  1-3, you should be well along.
• More time will likely be needed recent orders
  suggest FCC is figuring this out.
• FCC order directed that licensees be kept whole
  should not accept less than that, although
  dynamics of process make that hard.