FCC says licensees will have to pay for rebanding appeals

Jun 1, 2007 11:56 AM, By Donny Jackson

NPSPAC licensees operating in the 800 MHz band that don’t sign a rebanding agreement with Sprint Nextel will have to pay their own legal costs if the matter is appealed beyond mandatory mediation, the FCC confirmed in an order released this week.

The appeals-cost finding was part of a series of rebanding issues included in an order addressing several petitions for reconsideration and clarification associated with rebanding, which is nearing the two-year mark of what is scheduled to be a three-year process.

In the FCC’s initial rebanding order issued in 2004, the commission ruled that 800 MHz rebanding—designed to mitigate interference to public-safety systems in the band caused by commercial carriers—should not require licensees to pay any out-of-pocket costs. The provision meant Sprint Nextel had to pay all costs associated with mediation and was the impetus for the establishment of planning-funding agreements.

However, almost a year-and-half ago, the commission ruled that licensees would have to pay their costs associated with appeals to the FCC. NPSPAC licensee representatives quickly asked that the FCC revisit the ruling, claiming that some of them would be forced to sign undesirable rebanding deals because they would lack the money necessary to appeal further.

In its order, the FCC said it lacked the statutory authority to require Sprint Nextel to pay a licensee’s costs for an appeal. In addition, the commission confirmed its previous ruling on policy grounds, as well.

“Requiring Sprint to pay the costs of post-mediation litigation before the commission and beyond would only increase the likelihood of litigation and add cost and delay to the rebanding process,” the FCC order states. “Moreover, because Sprint is entitled to credit its relocation expenditures against its potential obligation to the U.S. Treasury, [the] petitioners’ position would in essence result in the U.S. taxpayer paying their litigation costs, a result we regard as contrary to public policy.”

Alan Tilles, one of the attorneys who filed a petition asking the FCC to clarify the matter, said the ruling hurts licensees’ position in rebanding negotiations.

“I was extremely disappointed at the commission’s decision, because what that basically does is give [Sprint] Nextel an incentive to appeal mediation decisions that don’t go Nextel’s way,” Tilles said in an interview with MRT. “That essentially forces the licensee to start bearing costs and acts as an economic hammer that Nextel has over the licensees.”

As an example, Tilles noted that Sprint Nextel already has filed an appeal asking an administrative law judge to overturn a recent FCC ruling that the wireless carrier must replace NPSPAC-capable radios in Tazewell County, Ill., even though the capability is not currently utilized. When the licensee is not filing the appeal, requiring the licensee to its legal costs to state its position is particularly harmful—especially in an administrative law judge appeal, which can require $50,000 in legal costs, Tilles said.