800MHz relocation: It’s about leverage
To prepare for the possible relocation of your use of the upper 200 SMR channels, the first step is to put the matter in perspective. This is a contract negotiation. It is not an engineering problem or an RF design problem. It cannot be solved with a few crystals and a screwdriver.
Because it’s a contract negotiation, you should first note who has the leverage in the negotiation. The answer is the site-based licensee. That primacy was made a portion of the FCC orders granting relocation authority to EA licensees. They got the authority, and incumbents got the leverage. Put another way, EA licensees have all of the obligations to make relocation work under the FCC requirements. Site-based licensees only have to be reasonable and cooperative. The FCC never said that saying “no” to unreasonable demands and terms from an EA licensee was an unacceptable option.
Preliminary matters To get ready to talk to an EA licensee about relocation, I suggest you do a little reading. Start by looking over the FCC’s decisions: Memorandum Opinion and Order, FCC 97-244, PR Docket 93-144 (July 10, 1997) and the First Report and Order, Eighth Report and Order and Second Further Notice of Proposed Rulemaking, FCC 95-501 (Dec. 15, 1995).
Until you read the FCC’s decisions and formulate a strategy, politely accept notification from the EA licensee, but don’t be filling out forms, schedules, lists, etc being circulated by companies like Nextel Communications. The information requested on those forms is proprietary, not required to be given or simply requested prematurely.
After you read the FCC’s orders carefully, apply the stated requirements for EA licensees to your system. That is, see what the EA licensee would be required to do to relocate your channels in strict accord with the FCC rules. You can always reduce your demands, but as with all contract negotiations, know where the edge of the envelope is.
The first draft After getting up to speed, you are going to find out that EA licensees must comply with myriad obligations and agree to bear a number of costs to demonstrate the ability to engage in relocation. The length of this column doesn’t permit a full recitation of those obligations. However, here are a few that you might look for in the first draft.
The EA licensee should agree to bear all costs of relocation, including hardware, software, design, installation, increased rents, legal, etc. EA licensees will try to flat-rate or cap these amounts. Because most licensees don’t have a crystal ball, flat rating the amounts is silly. Therefore, negotiate a formula that will neither abuse the EA licensee nor leave you holding the bag.
The EA licensee must articulate a method for providing a “seamless” transition that avoids disruption of service. The FCC orders contemplate the construction of additional repeater facilities, that would be tested and tried prior to turning off the channels to be relocated. The EA licensee should be prepared to reduce to terms and warranties the way that the seamless transition will be accomplished and how the EA licensee will be able to perform.
The channels As a preliminary matter prior to execution of an agreement with the EA licensee, you should ask which channels are being offered in exchange for your upper 200 channels. Then, using that information perform a search of the FCC records to determine a number of factors, such as (1) whether the grant is under petition or objection; (2) whether any finder’s preference targeting the channels is still pending; (3) the identity and location of any co-channel user; and (4) whether the FCC rules allow for relocating the channel to your location.
The last of those elements is quite important. Although the FCC has been clear in setting forth EA licensee’s ability to engage, in relocation, the FCC has not significantly changed the rules for an EA licensee’s operation of lower channels. That is, the EA licensee was supposed to have constructed, made operational and continued provisioning service from systems employing those channels in accordance with any extended implementation schedule granted, if applicable. Of greatest importance, the FCC has not granted greater “mobility” in relocation of those channels. Therefore, the EA licensee will have to show that the channel can be moved and operated by you at your location.
Remember that relocation is really just a partial assignment of licenses granted to the EA licensee. Following assignment, any special protections or privileges granted to the ESMR or EA licensee do not transfer to the site-based incumbent. Therefore, you must explore the licensing status of the channel before and after the assignment.
Customers The contract should articulate the way that customer units will be retuned or replaced. I’ve heard that one significant EA licensee is trying to reduce its burden by stating “We’ll pay X dollars per customer unit for retuning.” Depending on X, that offer might be a reasonable start. But there is also the issue of “downtime” of the customer vehicle during the retuning period. Will your customer get the value of downtime from the EA licensee? They should.
When equipment is incapable of being retuned, the issue of replacement comes up. The contract should address this issue and assure that the quality of replacement equipment is adequate to satisfy customers.
General provisions The contract to be negotiated between the parties can get quite complex, with an EA licensee providing a number of warranties. It can also be a simple matter, if you choose to simplify the process. But remember, the choice remains with the site-based incumbent licensees. They are entitled to have all terms, conditions, warranties, covenants and remedies spelled out in an agreement that demonstrates the EA licensee’s duties. Like most things, it comes down to trust.
If you trust the EA licensee, then a simple agreement might fill the bill. If, however, you do not trust the EA licensee, you should protect your interests thoroughly by negotiating an agreement that speaks to each who, what, where, when how and what-if of relocation.
Despite what you might have heard, this is not a good situation to be rushed. Remember, if the EA licensee is unwilling or unable to provide seamless transition to comparable facilities and spectrum, the EA licensee is not entitled to force relocation. The burden is on the EA licensee to show the financial, regulatory and practical ability to engage in relocation. The burden is not on site-based incumbents to show the contrary.
Finally, despite claims to the contrary, there is no obligation to participate in binding arbitration. The matter is still before the FCC, and you can reasonably expect that this lawyer will keep telling the agency, “You started this, you finish it.”
