Consensus plan fails legal test
Washington, D.C.
Although I appreciate the effort that Mobile Radio Technology has spent on addressing the issues regarding interference at 800 MHz (“Nextel Interference Debate Rages On”), your articles missed an extremely important element of the debate. Despite APCO and Nextel and others’ support of their rebanding proposal, the “consensus” parties have failed to articulate how the Federal Communications Commission can legally adopt their plan.
No matter how wonderful a plan might be, the FCC can only do those things for which Congress has provided statutory authority. So, even if the Nextel plan was the greatest thing since the invention of wireless, the FCC cannot (or should not) adopt a proposal that is fully contrary to law, including those limitations on the FCC’s authority.
Central to the Nextel plan is a financing proposal that relies on the existence of an unwritten, private contract between parties that do not exist. That is, the financing would come from Nextel’s voluntary entry into an agreement with an entity that would be created by a coalition of frequency coordinators and Nextel. The financing would be secured by using the 10 MHz of spectrum which Nextel wants as collateral, however, the secured party would be another, as yet, uncreated entity. The net result is that the FCC is being asked to adopt rules that rely on financing arising out of a contract that the agency itself cannot enforce.
Said even more simply, the FCC would be rebanding thousands of systems and units without being able to enforce the financing terms. Said another way, the rules that Nextel wants are based on Nextel’s “scout’s honor” and little else. That isn’t rule making. That’s roulette.
Nextel argues that if it didn’t perform under the yet unwritten agreement, then the 10 MHz of spectrum might be sold to raise the money that it should have paid. What Nextel does not include in its proposal is the company’s personal guarantee that even the capped financing will be paid. Instead, Nextel’s plan limits the extent of its liability to the 10 MHz of collateral.
The FCC has considerable authority and discretion in many areas related to telecommunications, however, the FCC’s authority does not extend to enforcement of private contractual terms. To lawfully adopt a rule or regulatory scheme, the agency must have the ability to enforce the rule or decision, particularly when the rule would effect the ability of public safety entities to realize the presumed advantages of the FCC’s decision. Because of these legal problems and many, many others (which no entity supporting the Nextel plan has even responded to) many entities, including UTC, CTIA and SBT have opposed the rebanding proposal as legally defective and extremely risky.
The issue requires tough regulatory choices. But what cannot solve the problem is unenforceable promises to be contained in an unwritten contract between non-existent parties operating outside of the jurisdiction of the agency. It is time for public safety to be heard from, and its opinion should reflect its need for assurances far greater than those offered by Nextel’s legally unsupportable and unenforceable proposal.
Robert H. Schwaninger Jr.
General counsel
Small Business in Telecommunications
Radio call for help
Lompoc, California
I think there are significant technical and ethical issues underlying the economic shortfall for First Responders. On Internet radio programming bulletin boards, there is a constant flow of messages from volunteer fire and ambulance crews seeking donations of radio equipment.
What’s even more troubling are the frequent requests for copies of proprietary radio programming software from people who obviously don’t have a clue about how to properly program a complex radio, let alone design, license, and install a working system. A recent posting by a firefighter stated that his department just bought several Motorola CDM1550 mobile radios, and could someone please send him a copy of the latest CPS? I responded that his department could afford to buy the software, if they could afford to buy the radios!
Another posting from a paramedic sought information about programming his personal HT1250 with the local police, fire and sheriff repeaters so that he could get help while hunting or hiking. Although many other list members were vehement that he could not legally operate on just any Public Safety frequency merely because he was a paramedic, he insisted that he had the authority to program and use his radio on any frequency he wanted. The prospect of technically naive people buying up obsolete and/or mismatched radio equipment and putting the same on the air, with no regard for proper licensing, coordination, or routine bench checks for FCC compliance, is frightening!
Eric Lemmon
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