FCC commissioner favors new vote on 800 MHz, if Nextel payment is changed
If the FCC decides to alter the amount of money Nextel Communications would pay to reband 800 MHz spectrum as the wireless carrier has requested, Commissioner Kathleen Abernathy favors such a change being made only after a vote of the commission.
Matthew Brill, Abernathy’s senior legal advisor, confirmed reports that Abernathy told reporters yesterday that she does not believe the FCC should alter Nextel’s payment amount in “errata”–the procedure used by the commission to change orders internally.
This technique typically is used to correct administrative errors or clarify wording in orders, but Abernathy favors the commission reconsidering the order to make a significant change. Citing a calculation error in the FCC’s valuation of its 800 MHz spectrum contribution, Nextel has asked the commission to reduce the $3.2 billion minimum cash payment in the order by $452 million or $740 million.
To make such a change in the order, Abernathy would like the commission to reconsider it on a “sua sponte” basis, Brill said. Sua sponte reconsideration could be done much more quickly than completely reopening the proceeding, which has been before the FCC for more than two years.
Brill emphasized that Abernathy’s opinion on the procedural aspects of the matter should not be interpreted as an indication that she or any other commissioner has decided whether to grant Nextel’s request regarding the minimum cash payment associated with the rebanding plan.
Most analysts believe the other clarifications Nextel has sought in the 256-page order can be handled in errata. Nextel has not announced whether it will accept the terms of the order and likely will not have to do so until at least mid-November.
If Nextel chooses to wait that long, it should have the benefit of knowing the identity of the Transition Administrator overseeing the rebanding effort and the contents of a legal opinion from the Government Accountability Office regarding the order.
The Transition Administrator search committee has received 12 applications for the job. Committee members are scheduled to make a selection by Oct. 10, according to a member of the committee.
The GAO has been requested to determine whether the FCC overstepped its authority by earmarking the use of proceeds from a spectrum award–a role many believe to be reserved for Congress. A GAO official last week said she expects the opinion to be issued in October.
Many believe the GAO findings could represent the greatest legal threat to the order, although Nextel rival Verizon Wireless has indicated previously it would file suit if the FCC awarded 1.9 GHz spectrum to Nextel without conducting an auction.
Meanwhile, Nextel has stated that the interference protection standard included in the order as the rebanding process occurs is too strict, particularly for its spectrum that is interleaved with public safety. “If such interference protection were achievable in an interleaved environment, rebanding would not be necessary,” Nextel said in an FCC filing.
