FCC Chairman Michael Powell this week told a Senate committee that Congress could clarify a difficult public-policy issue if it would pass legislation that would make the commission’s order to reband 800 MHz frequencies law, thereby reducing the chances of the matter being tied up in litigation.

On July 8, the FCC voted unanimously to approve an order that would require Nextel Communications to contribute at least $4.8 billion in cash and spectrum to enable rebanding of 800 MHz spectrum in an effort to alleviate interference to public-safety communications by cellular carriers—primarily Nextel—operating in the band.

Nextel has not decided whether to accept the obligations established in order. Most analysts believe the wireless operator would endorse the order—an item that calls for Nextel to receive the contiguous spectrum it needs at 800 MHz and 1.9 GHz to offer advanced wireless services—except that it is fraught with legal uncertainty.

The U.S. General Accountability Office is scheduled to investigate whether the FCC plan would illegally disburse money from the sale of spectrum—something Congress is supposed to do. In addition, Verizon Wireless has indicated it would challenge in court the FCC’s ability to award the 1.9 GHz spectrum without conducting an auction.

With this in mind, Powell made his appeal Wednesday to the Senate Commerce Committee for legislation that would make these potential challenges moot.

“Although I am confident that our unanimous decision to adopt the 800 MHz Order will withstand legal scrutiny, America's first responders should not remain at risk from the substantial delay that an appeal would entail,” according to Powell’s prepared testimony. “The delay inherent in the appeals process and the associated risk to public safety could be avoided if our Order were to be codified.”

Precursor wireless strategist Rudy Baca described the appeal as “creative” but said he doubts any legislation will be passed. Not only are lawmakers running out of time during this session, “but I got the impression from Congress that they don’t want to deal with this,” Baca said, referring to the hostile political environment surrounding the controversy.

Nextel has 30 days to make its decision after the rebanding order is published in the Federal Register. Although the order was released on Aug. 6, it has not been published in the Federal Register; in fact, the FCC has not even submitted the order for publication, according to an FCC spokeswoman.

Baca said he doubts Nextel will announce its decision until after the item is published in the Federal Register. In addition, he said the GAO will not begin its investigation until that time.