Even with a three-month extension in the negotiating period, more than 80% of all NPSPAC licensees in Wave 1, Stage 2 entered mandatory mediation on Nov. 1 after failing to reach a rebanding agreement with Sprint Nextel.

Of the 387 public-safety licensees in this stage of the rebanding process, 322 are in mediation proceedings, albeit under a wide variety of circumstances, said Transition Administrator Director Brett Haan. While some licensees have agreed to most issues necessary for a final reconfiguration agreement (FRA), others are still trying to negotiate deals to secure planning funding, he said.

Haan emphasized that mediators have been trained to understand the characteristics of public-safety systems that are different from the commercial systems that dominated the Channels 1-120 clearing, which has proceeded as planned (see table). All but a handful of the 176 licensees entering mediation in the Channels 1-120 stage reached a rebanding agreement by the end of mediation; however, duplicating this success rate with NPSPAC licensees is unlikely, said APCO's Robert Gurss, who is also an attorney representing some 800 MHz licensees.

“I don't think anyone expects that all these mediations will result in FRAs in 30 days,” Gurss said, noting that none of his Wave 1, Stage 2 clients had reached an agreement by the end of the mandatory-negotiation period. “It just can't happen, because a lot of these licensees still haven't done their planning.”

There have been many reasons given for the lack of rebanding agreements with public-safety licensees. Certainly some licensees started the process too late, although Haan said public safety now is “very engaged” at both the national and local levels.

Meanwhile, patience with the negotiating process appears to be wearing thin with many contractors. Alan Tilles, a partner with the Rockville, Md., law firm Shulman Rogers Gandal Pordy and Ecker, which represents about 150 licensees involved in the rebanding process, noted it is not unusual for lawyers for the TA, Sprint Nextel and his client to debate an expenditure estimate for so long that the combined attorney's fees exceed the amount of money being disputed.

And, 17 months into the scheduled 36-month rebanding process, Motorola has received orders for just 135 radios and 35 software upgrades to address rebanding issues — well below the activity level Motorola expected at this point, said Chuck Jackson, vice president and director of system operations.

He noted that it also is becoming increasingly difficult to find replacement parts for some older systems. Rick Burke, principal for Televate, which provides engineering services for many affected licensees, said he has not been paid for 15 months of work with one rebanding client that has yet to reached a planning deal with Sprint Nextel. During a presentation at last month's IWCE/MRT Wireless Summit in Charlotte, N.C., Burke said many of the problems can be attributed to Sprint Nextel's questioning of so many estimates included in the agreements.

Burke, who suggested that Sprint Nextel should not be party to the negotiations, also noted that only 19% of planning-funding agreements completed used the “fast track” process unveiled in May that was designed to let 50% of licensees bypass planning-funding negotiations with Sprint Nextel. Unfortunately, most planning-funding deals require the licensee to request $75 per radio on its system instead of the $55-per-radio threshold needed to enter the fast-track process, he said.

TA officials said the $55-per-radio figure was negotiated by Sprint Nextel and public-safety leadership after reviewing a TA report on the small sampling of public-safety systems in the rebanding process in the spring. Shane Satterlund, managing director for Bearing Point and a member of the TA's 800 MHz Public Safety Outreach team, said the per-radio threshold for the fast-track program should be reconsidered.

“What we didn't have when we put the $55 number in place … was the empirical data to know whether or not that number was going to truly allow us to accomplish [this] objective. We have that now. What I'll commit to do, based on the number of times it's been brought up here, is go back and revisit that to see if there's a way we can try to do that better.”