Faced with the prospect of its iDEN network having only a fraction of the operating spectrum needed in less than seven months, Sprint Nextel has asked a federal appeals court to set aside an FCC ruling requiring the wireless carrier to abandon all 800 MHz spectrum by the middle of next year.

Filed with the U.S. Court of Appeals for the District of Columbia Circuit, the Sprint Nextel litigation states that the FCC's revised rebanding order issued on Sept. 11 this year unfairly requires the carrier to cease 800 MHz operations on June 26, 2008 — the date marking 36 months since the rebanding effort formally started. Under the FCC's original 800 MHz rebanding order issued in 2004, rebanding was supposed to be completed by this date, but the massive project is well behind schedule.

“Neither Sprint Nextel nor the government is in a position to complete the transition within 36 months as required by the original terms of the contract,” Sprint's court filing states. “Sprint Nextel cannot perform within 36 months because the government cannot perform, and the government cannot perform because it is going to take longer than expected for many public-safety operators to retune their 800 MHz mobile communications networks.”

A key notion reiterated in Sprint Nextel's legal action is that 800 MHz rebanding represents a contract — offered by the FCC and accepted by Sprint Nextel — and not simply a regulatory ruling. In September, the FCC indicated it had the right to establish the June 26, 2008, spectrum-abandonment date because Sprint Nextel did not meet its obligation to clear the Channel 1-120 spectrum in 20 markets identified by the Transition Administrator (TA) as of Dec. 26, 2006.

But Sprint claims it did clear the Channel 1-120 airwaves in 26 markets as of the 18-month deadline while noting that the TA never identified the other 20 markets to be cleared. Meanwhile, the wireless carrier iterated that because rebanding represents a contract between Sprint Nextel and the FCC, the government agency cannot alter the terms of the contract without Sprint Nextel's consent.

“The solution to this problem cannot be to force Sprint Nextel to perform while letting the FCC out of the contract,” Sprint Nextel stated in its filing. “A more sensible solution would be for the parties to reach a new agreement acceptable to both sides in light of changed circumstances — an agreement that would not require Sprint Nextel to vacate its 800 MHz spectrum until public-safety operators are ready to vacate their spectrum.”

Forcing Sprint Nextel to abandon the 800 MHz band in late June would result in an “unpreventable, unrecoverable, and irreparable reduction in capacity that will severely disrupt Sprint Nextel's service” to 20 million customers on the iDEN network, according to the court filing.

Sprint Nextel noted that it does accept the FCC mandate that the wireless carrier must abandon the spectrum needed by a rebanding public-safety agency within 60 days of a request. However, the wireless carrier does not see a good reason that it should abandon the Channel 1-120 spectrum before public-safety entities are ready to move their systems to these airwaves, said Bill Jenkins, vice president of Sprint Nextel.

“We feel that vacating these channels before public safety is ready, these channels will be laying fallow and we will not be using these channels in our network,” Jenkins said. “And by not following the process that was set out in the original [report and order], our network would be degraded [as would] the service we will be providing to our customers — which includes approximately 3 million public-safety users.”

Jenkins said Sprint Nextel likely would attempt to bolster its 900 MHz spectrum holdings until it can use the 800 MHz airwaves currently occupied by public safety.

That likely will not happen for some time, in most of the country. Although a border plan with Canada has been proposed, it is doubtful that any public-safety agencies on the Canadian or Mexican borders will be rebanded by late June. Even in non-border areas, only about half of the NPSPAC licensees have negotiated rebanding agreements and fewer than 10% have completed the process.