Subject: [NEXTEL-1] Powell: Courts Might Frown On Any Effort To Make Nextel Pay For 800 MHz Realignment

From: Marcelrf <[email-masked]>
Date: Tue, 16 Mar 2004 20:20:58 -0500

March 16, 2004

Powell:  Courts Might Frown On Any Effort To Make Nextel Pay For 800 MHz
Realignment

FCC Chairman Michael K. Powell says any FCC effort to 
force Nextel Communications, Inc., to pay the relocation 
costs of public safety and private wireless licensees as 
part of a realignment of the 800 megahertz band could 
face the wrath of a court.  He also indicated that he 
backed Nextel's contention that such a realignment 
wouldn't increase the value of its 800 MHz band spectrum.

Mr. Powell provided his views on issues related to the agency's 800 
MHz band proceeding in a response yesterday to a letter sent last 
month by 23 members of the House Energy and Commerce 
Committee.  The lawmakers had expressed concern that an 800 MHz 
band "consensus plan" would be "an economic windfall" for Nextel in 
violation of the competitive bidding mandate of section 309(j) of the 
Communications Act of 1934, as amended.  The lawmakers said the 
FCC should address commercial interference to public safety systems 
in the 800 MHz band without involving any other spectrum.

The lawmakers also asked Mr. Powell for the Commission's view on 
their conclusion that the agency could force a company that benefits 
from a rebanding to pay for the relocation costs of other licensees.  
They said the contiguous spectrum that Nextel would get in a 
realignment would increase the value of the channels, substantially 
benefiting the carrier.

Under the consensus plan, Nextel would receive 10 MHz in the 1.9 
gigahertz band in exchange for frequencies it would return in the 700 
MHz, 800 MHz, and 900 MHz bands; the carrier would pay up to 
$850 million to relocate public safety and private wireless incumbents.

A draft order that began circulating among Commissioners last week 
calls for a realignment of the 800 MHz band and for Nextel to receive 
the 1.9 GHz band spectrum, according to sources.  Nextel would be 
responsible for paying all of the relocation costs of public safety and 
private wireless licensees and would have to pay the difference 
between those costs and the value of the 1.9 GHz band spectrum, the 
sources said.  FCC officials hope Commissioners will be able to vote 
on the order at their April 15 meeting, although they acknowledge that 
such a timeline could be too optimistic. 

Verizon Wireless, Cingular Wireless LLC, and AT&T Wireless 
Services, Inc., have said that if the Commission decides to realign the 
800 MHz band, it should not involve other frequencies and should 
order Nextel to pay the relocation costs of all licensees.  They have 
argued that the value of Nextel's spectrum would increase by billions 
of dollars in a realignment because it would be contiguous.  The 
carriers have also been members of a coalition that pushed for a 
"balanced approach" plan that relies on the use of "best practices" and 
technical rule changes rather than realignment.  Backers of this 
approach argue that interference to public safety systems can be 
addressed more quickly than under the consensus plan.

In his letter, Mr. Powell said the lawmakers' question about whether 
the FCC could force a company that benefits from a rebanding to pay 
the relocation costs of other licensees "cannot be answered in the 
abstract since such decisions are very fact-specific.  We can, however, 
assess the extremes of such an action.  For example, were the costs of 
imposing such an obligation so nominal as not to affect the value of 
the license, a court would likely uphold it.  Were the cost so high that 
the commercial entity's license would be substantially devalued, a 
court could view the action as an unreasonable modification of the 
license.  Please be assured that we will take these considerations into 
account in deciding the extent that commercial entities may be affected 
by the actions we take in the proceeding."  Nextel argues that the FCC 
lacks the authority to force it to pay to retune other 800 MHz band 
licensees.

Mr. Powell expressed support for Nextel's contention that it wouldn't 
benefit from having contiguous 800 MHz band spectrum because its 
iDEN (integrated digital enhanced network) system is "designed 
specifically to operate in noncontiguous spectrum."
Mr. Powell also addressed why the draft order didn't propose 
rebanding the 800 MHz band without using other frequencies.  "The 
record in the proceeding reflects that it would be difficult to 
reconfigure the 800 MHz band without involving spectrum outside 
that band because, according to parties that have discussed band 
reconfiguration, `green space' - spectrum that can house systems 
temporarily while other systems are move[d] or retuned - must be 
available when systems are replaced or retuned on such a large scale," 
he said.

"Even were the green space issue not a factor, the relocation cost 
would be substantial - on the order of $1 billion for all affected
parties, 
according to the consensus parties," he added.  "The current 800 MHz 
licensees, many of them public safety agencies and small businesses, 
might not be able to afford the cost."

Mr. Powell said the FCC's obligation to auction spectrum only applied 
when there were mutually exclusive applications, and he noted the Act 
permitted the Commission to employ various means to avoid such 
mutual exclusivity.  He said section 309(j) didn't apply when licenses 
were modified.

Meanwhile, four public safety organizations sent a letter to the 23 
House members today reiterating their support for the consensus plan 
and criticizing carriers that oppose the proposal.  Signing the letter 
were the presidents of the Association of Public-Safety 
Communications Officials-International, the National Sheriffs' 
Association, the International Association of Chiefs of Police, and the 
International Association of Fire Chiefs.

"From the initiation of public efforts to address and resolve the 800 
MHz interference problem more than two years ago, the commercial 
wireless industry, led by Verizon and Cingular, has approached the 
resolution of the interference experienced by the public safety 
community as a competitive matter without regard to the need to cure 
the interference being experience[d] by public safety," the groups 
complained.  "Until now, they have continuously and vigorously 
opposed any form of rebanding - which would not impact their 
operations - in favor of after-the-fact remediation, akin to the arcade 
game of shooting at the weasel as it moves from hole to hole."

The groups noted that supporters of the consensus plan had explored 
pursuing an in-band realignment two years ago but concluded that it 
wasn't possible, in part because of the need for green space.  "We urge 
you and the Federal Communications Commission to focus first and 
foremost on the means to resolve the 800 MHz interference being 
experienced by public safety in an efficient and practical manner 
which is fully funded so as not to financially burden the state and
local 
governments which fund public safety operations or the federal 
government," the groups added.  "Competitive commercial 
considerations have no role in this debate." - Paul Kirby, 
pkirby @ tr.com

For a Web version of today's TRDaily, go to 
http://www.tr.com/online/trd/2004/td031604/index.htm

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From: Paul J Zawada <[email-masked]>
Date: Wed, 17 Mar 2004 09:03:45 -0600

> specifically to operate in noncontiguous spectrum."

Is Michael Powell really that short sighted?  Can he not see the big 
picture?  Does he think Nextel wants to run IDEN in perpetuity? (My 
guess is the answer is "no" to all of three of these questions.)

IDEN is one of Nextel's weaknesses... Continuous spectrum is what will 
allow them to shed IDEN and move to a real advanced technology so they 
can drop this silly talk of half-rate vocoders being a major 
advancement...   How long do you think it will take Nextel to petition 
the Commission to move their spectrum from Part 90 to Part 22 once they 
get all of those pesky LMR users out of there?

--zawada

 
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From: "marcel_rf1" <[email-masked]>
Date: Wed, 17 Mar 2004 15:11:56 -0000

He won't be around uch longer, so he can say all kinds of dumb things on his way out the door!

> get all of those pesky LMR users out of there?

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From: Marcelrf <[email-masked]>
Date: Wed, 17 Mar 2004 10:18:20 -0500

It won't be long..........
Has anyone noticed  the abundance of 450 Mhz  "Cellular" equipment now
being made for markets abroad?
How long do you think it will be before someone wants to deploy cellular on
450 MHz and Petitions the FCC for a wavier?

Paul J Zawada wrote:
<SNIP>

>  How long do you think it will take Nextel to petition

 
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From: Paul J Zawada <[email-masked]>
Date: Wed, 17 Mar 2004 10:20:08 -0600

> 450 MHz and Petitions the FCC for a wavier?

I am actually concerned someone will make an attempt a push to have the 
DoD/NTIA/FCC auction off 440-450 MHz for this purpose.

--zawada

 
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From: Marcelrf <[email-masked]>
Date: Wed, 17 Mar 2004 11:30:46 -0500

You never know.......

 
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