My wife, Isabel, is a wonderful woman to put up with a lout like me. It seems I don’t understand the need for pate, when liverwurst sells for $3-a-pound less. She gravitates toward Pinot Noir and Cabernet, selected for vintage and chateau. I reach for a Bud, flipping the cap across the kitchen counter, rather than sniffing some musty cork.
With a sigh, she sends me back upstairs to find a tie that doesn’t clash with a shirt or a coat or some other piece of insignificant clothing. Her threats to use Garanimal tags to get me dressed often sound quite serious. I forget to shine shoes, pick up laundry, shave and, occasionally, bathe. But somehow she prods and bullies me into some semblance of civility.
Then there’s my choice of language. It’s … well … colorful. Some might say “salty.” She would simply explain that for a relatively educated man, my choice of words and jokes pushes the envelope of propriety. Privately, she tells me that I’m a foul-mouthed man with a penchant for inappropriate humor. Isabel confesses that she simply cannot understand how anyone with my erudition and writing skills can fall into a smut rut.
I stand accused, and I am guilty. I’ve never obtained the flair of political correctness that allows one to excuse a boor, a liar or a cheat. When someone is being deceitful, and not merely foolish, I unashamedly tend to point out their character flaws with some precision. When the politic thing would be to ignore obvious machinations of government officials, I tend to flare up and demand an explanation. It’s a curse.
My partner, the far more cerebral and genteel Mr. Curt Brown, Esq., has unfortunately been occasionally affected by my frightfully overbearing methods. Over the years, we have stayed together, even when I’m certain that he has been embarrassed by my histrionics. If you have been blessed with an ugly baby, Brown is better equipped to deal with the unveiling.
But our partnership has withstood the differences, and our styles have blended together nicely to provide a more poetic Brown and a more precise Schwaninger in an uncertain harmony of forthrightness. So when our methods and tone were recently attacked in a pleading before the FCC by none other than (“We can’t take a joke”) Nextel Communications, we were amused.
In its opposition to an Application for Review that we filed with the commission, in which we noted that the Wireless Telecommunications Bureau (WTB) had made a few errors in granting a handful of licenses to Nextel, resulting in Nextel’s receiving at least 30,000 SMR channels based on patently defective applications, Nextel took umbrage with our “behavior” before the agency. Drawing on excerpts from the historical record, Nextel’s first admonition involved a pleading our firm prepared five years ago wherein the pleading party accused the opposing party of “whining.” It’s true. We did it. We wrote a petition that included that very word. Our shame cannot be greater.
Nextel also objected to our (still-pending) petition that requested that the Commission take notice of the fact that the infamous “Fleet Call Waiver” was granted in 1991, and that the five-year construction period had run out. We simply requested that the FCC audit Nextel’s construction, as it does all other licensees, and take back any channels that were not constructed in a timely manner. The WTB has not yet ruled on our two-year-old petition or, to our knowledge, sent Nextel an “800A” letter. Again, we admit our audacity in employing the most devious of all devices: a calendar.
Nextel’s opposition continued down this path, attempting to cobble together a case that Brown and I had somehow breached the line of propriety in our past efforts, citing events that have transpired over the past five years in which we played no small part. What Nextel was trying to prove is still a mystery to me. What Nextel did not prove was that all of its applications were properly granted by the commission.
In fact, Nextel did not even try. Nextel’s failure to defend the appropriateness ofits licenses is quite troubling (he said, in his most polite manner). I assume that Nextel intends to engage in frequency migration of incumbent licensees to solidify its position following the 800MHz auction. But its inability or unwillingness to demonstrate clear title to many of its licensees poses a sticky problem.
If you are an incumbent licensee who has been informed that Nextel intends to migrate your system to lower channels, then the duty falls on Nextel to deliver the channels out of its warehouse to complete the task. An incumbent’s first logical question then may be, “Can you kindly demonstrate clearly that the channels you are offering are yours?” If my experience is any indication, Nextel will be quite put off by this question.
But it is a fair question.
An economic area (EA) licensee is obligated to present channels to the incumbent that will not result in later legal problems for the migrated operator. Therefore, a title search is in order. Each channel offered should be scrupulously checked to assure that the EA licensee holds the license (or title) to the channel freely and without cloud. The burden for demonstrating that the goods are genuine falls squarely on the EA licensee.
To assist readers in their request for bona fides, I humbly suggest that one begin at the beginning. Each incumbent licensee should ask to see all applications, licenses, modifications, frequency coordination, co-channel facility licenses, engineering, fee records, waiver requests and associated documents that make up the record, which together demonstrate the EA licensee’s title to the channel. If confirmation in the form of representations and warranties from past licensees regarding construction and operational status is required, then such documents should also be politely requested in an inoffensive manner.
To be complete in this examination, an incumbent licensee may need to review the applications and licensing of entire ESMR footprints. If the channel being offered was granted as a portion of complex ESMR system, the entire system will require a review. This (he said, respectfully, and with great deference) is due to the manner in which many channels were granted. Grants of licenses were often interdependent with grants of other channels.
Next, the incumbent should politely request that the EA licensee demonstrate that the subject channel is capable of being moved from its presently authorized location to the new location where the incumbent’s system is operating. Remember, lower channels are not as mobile as one may have been led to believe. Therefore, a complete review of co-channel facilities will have to be performed, and engineering that demonstrates compliance with the FCC rules will be required to assure that the channel is eligible for the intended use.
During this process, one should take special care not to offend the tender sensibilities of the EA licensee. All incumbents have been charged with the duty to be “reasonable” in their individual approach to frequency migration. I suggest that all correspondence should be quite cordial and professional-even fawning, if need be. Nextel is easily offended by any suggestion that any of its licenses may be more the color of money rather than the color of law. I, therefore, respectfully offer the following example of future correspondence:
Dear Sir or Madam: We are impressed beyond belief in your company’s past abilities to achieve licensing heights to which we might only aspire. It is with great humility that we must confess that we lack your laudable bravado and confidence in our limited ability to retain the channel offered for use at our location. We are but simple folks who, as you know, are subject to the FCC rules. Although we know that our requests must seem the trivial squeaking of a recalcitrant mouse, we must respectfully request that your company demonstrate its rightful title to the channels so generously offered.
Alas, the EA’s likely response will be to question your character qualifications to be a commission licensee. And if they do, dear reader, smile placidly, and warmly tell them to go to … er, to stick it in their ear.
Editor’s note: Due to an editing error, a disclaimer relating to Robert Schwaninger’s affiliations outside of his law practice and association with this magazine was printed incorrectly. He is general counsel to Small Business in Telecommunications, and he is a principal in the business operated by Jim Fryer. Both organizations are mentioned in his column in the April issue.