Already struggling to keep wireless customers on its iDEN network, Sprint Nextel could encounter even more capacity issues this summer on the network as it faces the possibility of losing much of its spectrum in the 800 MHz band unless an FCC order is changed or nullified by a federal court.

Under an FCC rebanding order issued in September, Sprint Nextel is required to vacate the 800 MHz spectrum it currently occupies — the Channel 1—120 airwaves and its interleaved channels — by June 26. In the commission's original 2004 order, that date was supposed to mark the conclusion of the massive rebanding project, but reconfiguration of the band now is not expected to be finished until at least 2010 or later. (See cover story on page 52.)

Because rebanding will not be completed, the June 26 deadline for Sprint Nextel to abandon its 800 MHz airwaves is problematic for the wireless carrier, according to company officials. Sprint Nextel is supposed to relinquish the Channel 1—120 airwaves and move to frequencies currently used by public safety entities. However, because the vast majority of public safety licensees have not been rebanded, there will be very few frequencies available for Sprint Nextel to use on June 26.

At the time of the FCC's latest rebanding order, some public safety officials had expressed concern that Sprint Nextel would resist public safety's efforts to reband in geographic regions where the carrier is experiencing well-documented capacity issues on its iDEN network. To ensure this would not be a problem, the FCC established the June 26 date and required the carrier to vacate Channel 1—120 spectrum within 60 days after a public safety licensee requests the airwaves.

Sprint Nextel has no problem with the FCC's 60-day rule but doesn't believe it should have to vacate its spectrum until public safety licensees have vacated the airwaves where the carrier ultimately will operate. Without the ability to move to new spectrum, Sprint Nextel's iDEN network could suffer capacity shortages.

The FCC did provide the ability for NPSPAC licensees and Sprint Nextel to file waivers seeking extensions related to the Channel 1—120 frequencies, but the September order does not include a waiver provision that would allow Sprint to remain on its interleaved channels. In its court filing, Sprint Nextel called the FCC's September order “arbitrary and capricious,” noting that the commission's decision unilaterally changed the terms of the carrier's contract with the FCC regarding rebanding obligations.

“We think the commission has taken steps … that are very unfavorable to us with no benefit to public safety,” said Larry Krevor, Sprint Nextel's vice president of government affairs for spectrum.

Krevor added that requiring the carrier to relinquish channels within 60 days of a public safety request provides adequate protection to the first responder community. “That takes care of everything — it assures that public safety will never wait on us to get its channels,” he said.

Despite several years of oft-contentious negotiations regarding rebanding, most public safety officials agree. Although the Association of Public-Safety Communications Officials will “support the FCC order,” APCO President Willis Carter said the 60-day rule addresses public safety's concerns.

With this in mind, Sprint Nextel has challenged the FCC order in a federal appeals court, which has approved an expedited schedule to handle the case. And some public safety organizations have expressed their support of Sprint Nextel's position, both in filings to the court and filings to the FCC.

According to Sprint Nextel, agencies with public safety responsibilities have 3 million subscribers on the iDEN network. Alan Tilles, a partner in the law firm of Shulman Rogers Gandal Pordy & Ecker, filed a briefing with the FCC on behalf of his public safety clients that use Sprint Nextel's iDEN system to support administrative communications, noting that some interleaved channels would be unused as the FCC determines how they will be disbursed to public safety.

“They have to develop a [spectral] database. They have to establish a date by which the coordinators can accept applications,” Tilles said. “Then the coordinators have to coordinate the hundreds — or maybe thousands — of applications, so that's going to take a lot of time. Then the commission has to get around to granting all the apps. Then, they have to construct [the networks]. How long is that going to take?”

Most industry observers believe the process in some cases could take years, during which time the spectrum would lie fallow, something the FCC typically tries to avoid. With Sprint Nextel and public safety taking a similar stance on the matter, the issue should be resolved, said Berge Ayvazian, chief strategy officer for Yankee Group.

“[FCC commissioners] made the rules in response to the requirements of the public safety community,” Ayvazian said. “If the public safety community comes around and says, ‘We don't need to do it that fast. In fact, we're using [Sprint's] stuff,’ … why would Sprint lose? Plus, we've got a lame-duck FCC.”

If Sprint Nextel does not get relief from the court or the FCC, the carrier will need to use other spectrum for its iDEN network operations — most likely in the 900 MHz band. As a result, the laws of supply and demand dictate that 900 MHz airwaves could be significantly more valuable if Sprint Nextel loses its court appeal, said Roger Entner, senior vice president of communications for IAG Research.

“If you own 900 MHz spectrum and this [FCC ruling] holds up, it's like having your birthday and Christmas on the same day,” Entner said.