Increasingly frustrated by the lack of rebanding progress, on Sept. 11 the FCC attempted to get serious about deadlines. For those voyeuristic enough to watch nine hours of the backs of people's heads — the FCC's meeting was delayed while the cable television item was negotiated — they could see live via webcam the FCC rearrange deadlines to try to move this process forward in a different fashion.

The commission's action did the following:

  • For those licensees without Planning Funding Agreements, established a planning period of 90 days (for systems of up to 5000 subscriber units), 100 days (for systems with 5001 to 10,000 units) and 110 days (for systems with more than 10,000 units).
  • For those licensees with Planning Funding Agreements, established new planning deadlines of Oct. 15 (Wave 1), Nov. 15 (Wave 2) and Dec. 15 (Wave 3), with border licensees to be considered later.
  • Established 30 days for negotiations at the end of the planning period.
  • Established a 20-day mediation period after unsuccessful negotiation.
  • Established a 10-day period after mediation when the case will be referred to the FCC for disposition.
  • Established a Change Notice process wherein Sprint Nextel must respond to a licensee's Change Notice request within 10 working days of receipt. If the Change Notice is not successfully negotiated, it would be sent to mediation at that point for 15 working days and then referred to the FCC.
  • Discussed processes for regional implementation planning.
  • Discouraged the filing of requests to extend the 36-month implementation deadlines — particularly where the reason has to do with Sprint Nextel — and indicated that such requests will receive a “high level of scrutiny.” However, the FCC noted that extensions are not needed to assure Sprint Nextel's funding of a reband, as long as the licensee has not unjustifiably delayed its work.

While the FCC's action was certainly well-intentioned, I'm not as enthusiastic as some in the public-safety sector have appeared to be in published comments. In some ways, I believe that the FCC is attacking the wrong problems and is actually harming areas that were proceeding much better of late.

Specifically, I don't see any way that there are enough vendor resources available to do this job properly within the now-scrunched timelines. While it's possible to do it, I don't believe that it can be done well. As I've said before, the size of this task means that you cannot delay the start of the work without extending the end. It's like a balloon that is being pushed up against a wall: further expansion to the sides will no longer be possible at some point.

My other concern is that it's just not possible to negotiate a large system retune in 50 days. Large system retunes, and continued arguments over issues such as replacement (or non-replacement) of Maxtrac radios, generally can't be completed in that period of time. We already have enough trouble getting a timely response under the current regime. This will be even worse when you add the increased caseloads imposed by the new deadlines.

I'm not complaining about vendors' lack of effort, just the lack of capable resources. We've seen too many cases already where lack of attention to certain details has led to protracted negotiations or multiple change orders. I fear that we're only going to make that situation worse. Or, if folks do take the time that's truly necessary to get it right, the number of cases before the FCC will explode. Perhaps that's not a bad thing, but I question how the FCC itself will keep up with the workload and be able to timely and appropriately deal with each case.

The next six to eight months will be intense — and hopefully successful.


Alan Tilles is counsel to numerous entities in the private radio and Internet industries. He is a partner in the law firm of Shulman Rogers Gandal Pordy & Ecker and can be reached at atilles@srgpe.com.