Seven weeks after the Federal Communications Commission issued its order to address interference problems at 800 MHz, public safety and other operators in the band remained in limbo as various parties that will decide whether the rebanding proposal will become reality determine their courses of action.

First among the decision makers is Nextel Communications, the commercial wireless company whose operations at 800 MHz frequencies interleaved with those of public safety, causing the bulk of interference in the band. The FCC plan calls for Nextel to contribute at least $4.8 billion worth of cash and spectrum to a rebanding process that would give the wireless carrier contiguous spectrum in the 800 MHz and 1.9 GHz bands.

With the release of the order on Aug. 6, there was some speculation that Nextel might disclose whether it would accept the rebanding terms during the Association of Public-Safety Communications Officials International conference in Montreal the following week. Those hopes were quickly dashed when Nextel Senior Vice President and Chief Regulatory Officer Robert Foosaner announced at the conference that Nextel would take at least a week to digest the 256-page order.

As of press deadline three weeks after the order's release, Nextel had not announced its decision.

At the APCO conference, Foosaner declined to indicate whether Nextel would accept the order but expressed concerns about several “internal inconsistencies.” He was most outspoken in his criticism of the deadline for Nextel to decide whether to accept rebanding responsibilities. Under the order, Nextel must commit to rebanding — thereby forgoing any rights for legal review — before the FCC has to finalize the order and before opponents such as Verizon Wireless have to decide whether they will appeal the matter.

“That puts a publicly held company in a very untenable position,” Foosaner said. “It puts us in a position that makes it almost impossible for us to come back and give away rights without knowing the results of the order that we're agreeing to.”

Foosaner also said he believes the makeup of the five-member committee searching for the transition administrator that will oversee the rebanding process is inappropriate, noting that two utility-oriented entities — Southern Communications and the United Telecom Council — have veto power on the committee, which is required to reach a super-majority consensus (four votes) on any recommendation.

Despite these concerns, Nextel likely will accept the terms of the order because it badly needs contiguous spectrum to offer advanced wireless services necessary to compete effectively with Verizon and other rivals, according to Precursor wireless strategist Rudy Baca.

“I think they're going to take the deal because they really need the spectrum,” Baca said. “They really don't have a choice.”

Nextel officials spoke with public-safety officials the week after the APCO conference to outline some of the company's concerns with the order. APCO President Vincent Stile declined to disclose any specifics regarding the conference call with Nextel but expressed hope that all matters could be resolved.

“Of course, I'm an optimistic person,” Stile said.

Accepting the FCC order would mean Nextel must contribute 8.5 MHz of spectrum in the 700 MHz and 800 MHz band and pay at least $3.2 billion in cash — a figure that could increase if rebanding costs exceed expectations.

Most troublesome for Nextel is the very real possibility that this commitment will not result in it receiving the 10 MHz of valuable 1.9 GHz spectrum called for in the order, Baca said. That's because the U.S. Government Accountability Office is investigating the FCC action to determine whether the commission effectively is selling the 1.9 GHz spectrum to Nextel. Funds from spectrum sales are supposed to be deposited into the U.S. Treasury and disbursed by Congress, not the FCC.

Citing a precedent involving the National Parks Service in a similar case, Baca said the GAO likely will block the award of the 1.9 GHz spectrum. If not, the longstanding threat of Verizon Wireless challenging the FCC's award of spectrum to Nextel without an auction is another considerable legal barrier, although a Verizon Wireless spokesman said the company has not yet decided whether to file a lawsuit.

Of course, these questions will be moot if Nextel declines to accept the rebanding obligations in the FCC plan — something the wireless carrier does not have to decide until 30 days after the order is published in the Federal Register. As of press deadline, the FCC had yet to submit the order for publication, according to an agency spokesperson. As a result, Nextel likely will not be forced to make its decision until at least October.

Until rebanding occurs, 800 MHz interference problems will be resolved according to the “enhanced best practices” outlined in the order. These guidelines call for interfering parties to be more accountable than in the past, which could be a potentially expensive proposition for Nextel as its customer base grows, according to FCC officials.

At the APCO conference, FCC Wireless Telecommunication Bureau Chief John Muleta confirmed that the order currently calls for these best practices to remain in place if Nextel does not agree to the rebanding terms.