Summary of 800 MHz Supplemental Order and Order on Reconsideration
From: Robert Gurss
APCO Director of Legal & Government Affairs
and Telecommunications Attorney
Fletcher, Heald & Hildreth, PLC
Date: December 23, 2004
The FCC released a document late yesterday containing clarifications to its 800 MHz Report and Order, in part responding to ex parte submissions from Nextel and other parties. The following briefly describes those aspects of the document that have a direct impact on public safety licensees. The full text of the document is at the following URL:
http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-04-294A1.doc
In addition, there have been several petitions for reconsideration filed in the 800 MHz proceeding, primarily by SMR and utility licensees. The relevant aspects of a few of those petitions are also discussed below.
Interference Signal Threshold for Enhanced Best Practices
The FCC accepted Nextel’s proposed modifications to the threshold that would apply during implementation of re-banding. Once a region is complete, the permanent thresholds will apply. The Commission also reiterated that other aspects of the Enhanced Best Practice guideline would apply throughout rebanding, at least for public safety licensees.
Interference Resolution Procedures
The FCC rejected CTIA’s proposal that a CMRS licensee’s obligation to correct interference would only apply if the licensee receiving interference provided extensive testing and system data. Indeed, the FCC clarified that the only obligation of the entity receiving interference is to report “the location of the interference, the time it occurs, a description of the kind and severity of interference, the source (if known), the licensee’s licensing information and where it can be located.” Furthermore, it is the obligation of those to whom the interference complaint is addressed to conduct the necessary tests to identify and eliminate the problem.
18 Month Obligation
Nextel has an obligation to clear non-Nextel (and non-Southern Linc where applicable) incumbents from 806-809/851-854 (channels 1-120) within 18 months in the first 20 regions identified by the TA. The period will start with a Public Notice announcing rebanding start dates.
In addition, the Commission is now requiring that Nextel also initiate retuning negotiations with all NPSPAC licensees in those 20 regions before the end of the 18 month period. The requirement can be satisfied if Nextel has contacted each NPSPAC licensee in writing, had at least one two-way oral communication with each, and presented to each a proposed schedule for relocation and requested, within a date certain, a written itemized estimate of cost of reconfiguring the system.
Secondary Mobile-Only Operations on Channels 1-120
There are apparently less than 50 mobile-only systems in this portion of the band, operating on a secondary basis. The FCC will allow those to stay, and continue to accept public safety and critical infrastructure applications, but only on a secondary basis.
New Public Safety and Critical Infrastructure Channels Post-Rebanding
Channels vacated by Nextel, and not required to accommodate those moving out of channels 1-120, are to be available for public safety on an exclusive basis for 3 years, followed by a 2 year period during which critical infrastructure licensees are also eligible. The Report and Order had incorrectly started the 3 year clock upon effective date of the order. Now, the FCC has said that the clock starts once rebanding is otherwise complete within a particular region. The FCC will issue public notices announcing the availability of channels for each region. The Commission also clarified that any Part 90 frequency coordinator is eligible to coordinate these new channels, provided that the coordinators sends letters to the FCC within 45 days (Feb 7).
Frequency Coordination for Rebanding
The Commission has now determined that applications to implement rebanding would not require formal frequency coordination. This includes those moving from 806-809/851-854 to vacated Nextel channels, as well as the NPSPAC move. The Commission stated that “coordination is unnecessary because the Transition Administrator will have taken coordination issues into account in determining that the new channel offers “comparable facilities.” However, the FCC also commented that it “expects that the Transition Administrator will enlist the assistance of the relevant Commission-certified frequency coordinator in instances in which coordination issues arise.”
Regional Planning
The latest order appears to prevent the RPCs from playing a role in the rebanding. Indeed, it provides that current licensees operating at odds with the relevant plan will still be moved based on their license, and that RPCs will not be able to object. It is unclear as to whether RPCs would be allowed to modify their plans in the near term to facilitate more efficient channel use.
Transactional Costs
The FCC clarified that Nextel’s obligation to cover licensees’ “soft costs” or “transactional costs” is not limited to 2% of hard costs, though it suggested that the TA use 2% as a guide in reviewing the reasonableness of rebanding expenses. Significantly, the FCC acknowledged that 2% may be too low for some public safety licensees, who would require additional assistance in negotiating and evaluating rebanding agreements.
Pre-Rebanding Expenses
The FCC clarified that payment of expenses can occur before rebanding is compete, and that the costs of providing an estimate of negotiating an agreement are subject to reimbursement. Significantly, the FCC gave the TA broad discretion to approve any reasonable costs related to retuning, including preparatory costs incurred by licensees.
Application Freeze
The Commission had said that applications would be frozen in each region during the rebanding period for that region. The Commission added that the freeze would need to apply to areas within 70 miles of such region.
Relevant Petitions for Reconsideration
Exelon (utility) : very briefly requests that critical infrastructure licensees have equal access to new channels. However, no new rationale is offered to support position.
Entergy (utility): seeks rule to require that public safety applicants for new channels vacated by Nextel first seek in public safety and SMR pools before requesting BILT channels.
Most other reconsideration petitions appear to focus on issues that are not of direct relevance.
For more information, please contact me at (202) 833-3800, or at either gurssr@apco911.org or gurss@fhhlaw.com.
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