Subject: [NEXTEL-1] FCC's Abernathy expresses hope for April decision on 800 MHz

From: Marcelrf <[email-masked]>
Date: Fri, 19 Mar 2004 14:29:13 -0500

FCC's Abernathy expresses hope for April decision on 800 MHz

By Donny Jackson
IWCE/MRT

March 19, 2004 

FCC Commissioner Kathleen Abernathy said the commission 
intends to issue a decision about rebanding 800 MHz users 
in April to resolve public-safety interference issues in the 
band, which would bring a conclusion to the controversial 
two-year proceeding. 

During a press briefing yesterday, Abernathy also said she is 
worried about the litigation risks associated with granting 
1.9 GHz spectrum to Nextel as part of the deal. Indeed, 
critics of the Consensus Plan proposal repeatedly have noted 
that the Communications Act mandates that such airwaves 
must be auctioned. 

Scott Cleland, CEO of The Precursor Group, said such concern 
is warranted, because “even a five-year-old can tell” the FCC 
is on shaky legal footing if it gives spectrum to Nextel outside 
the auction process. For public safety, the concern is that 
legal maneuverings could threaten the ability to reband in a 
timely manner, he said. 

“[The FCC has] got to thread the needle here, because that 
decision will be challenged in court,” Cleland said. “They 
don’t want rebanding to be caught up [in litigation].” 

But FCC Chairman Michael Powell, in a letter to 23 members 
of Congress, this week said the commission has the legal 
right to award spectrum, noting that Section 316 of the 
Communications Act “authorizes the Commission to modify 
licenses if such action will promote the public interest. 

In the same letter, Powell said he does not believe Nextel 
will benefit from the rebanding because its iDEN technology 
platform is designed specifically to work with non-contiguous 
spectrum. 

According to reports, the FCC staff last week circulated a 
draft order that included the key components of the 
Consensus Plan—rebanding 800 MHz to provide contiguous 
spectrum to public safety and Nextel, which also would get 
spectrum at 1.9 GHz—but did not include a final payment 
amount from the wireless carrier. 

Nextel has agreed to pay $850 million to offset public 
safety’s costs of rebanding, but observers believe the 
wireless carrier will have to pay more. Guzman & Co. 
telecom analyst Patrick Comack has projected Nextel 
will have to pay an additional $1.5 billion, which would 
force Nextel to commit to a total payment of $2.35 billion. 

Rep. Vito Fossella (R-N.Y.) this week said Nextel should 
be required to pay more, because he is concerned Nextel’s 
$850 million pledge will not be enough to cover rebanding costs. 

“The Consensus Plan fails to provide sufficient funding to 
upgrade public safety communications, with some estimating 
a shortfall of $1 billion,” Fossella said in a prepared statement. 
“Indeed, because no provisions have been made for 
additional funding to cover public safety’s costs, the taxpayers 
will likely be forced to foot the bill. The Consensus Plan has 
the potential to become known as the ‘$1 Billion Tax Increase 
Plan on the American People.’” 

However, Powell said requiring Nextel to pay the costs of 800 
MHz incumbents is a sensitive issue—and another aspect that 
could be subject to future litigation. 

“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,” Powell stated in his letter. “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.” 

 http://iwce-mrt.com/ar/radio_fccs_abernathy_expresses/index.htm

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