Rebanding clarification much needed
The 256-page 800 MHz Report & Order has a number of inconsistencies and vague references and needs some clarifications.
Those clarifications have come in the form of a series of meetings with the FCC by Nextel, public-safety representatives and others, as everyone tries to understand what this document means. Items such as the methodology that the commission used to calculate the value of Nextel’s 800 MHz spectrum, the responsibilities of the Transition Administrator and the rebanding rights of non-Nextel geographic area licensees are among those issues. In response, the FCC has issued a Public Notice requesting comment.
For example, the order provides that the TA will work with the public-safety Regional Planning Committees (RPCs) in determining the order in which regions will be rebanded. The RPCs consist of volunteers, and it can be expected that their work will take a considerable amount of time. Will the RPCs get funding for this purpose from the TA? The order is silent. Under the Consensus Plan, Nextel would have been able to give funding to the RPCs. However, the TA is a fiduciary to the commission, not to the industry or Nextel. As a result, it is the TA’s job to ensure that the U.S. Treasury is not “robbed” of any windfall payments that will be due from Nextel under the order. A dollar more for rebanding means a dollar less for the Treasury Department. While the TA must also balance the obligation to make rebanding happen quickly and efficiently, it’s unclear how the TA will address this issue. That’s a clarification I believe the commission should make.
Similarly, as public-safety agencies begin the internal process of preparing for negotiations (doing a system audit, contracting with preferred vendors for negotiations, engineering, project management, etc.) larger entities may incur significant expense before the first negotiation meeting is held. Some agencies may not be able to afford (or may be precluded under local law) expending funds upfront, before negotiations begin. It would not appear that there is a mechanism for these agencies to receive some minimal level of funding, prior to reaching an agreement, to proceed with this work. While I’m sure Nextel would like to see such funding be available (it speeds up the process significantly), the commission — or the TA — ultimately has to make that call. And the sooner that decision is made, the better.
The TA was specifically not recognized as a frequency coordinator by the Commission. Therefore, current frequency advisory committees will be required to review the thousands of applications generated for rebanding. While it’s clear that Nextel is responsible for paying those costs, there is a little wrinkle that might not have been considered. The channels that Nextel is surrendering are a combination of SMR, industrial and business pool channels. The public-safety coordinators are not eligible to coordinate these channels. And none of the coordinators are eligible to coordinate the SMR pool channels. So, how does the FCC intend this to work?
From a non-public safety perspective, there will be geographic area (EA) licensees that will swap their licenses with Nextel. Some of these folks obtained their authorizations with a small bidding credit. Now, that license is being assigned to a non-small business eligible entity (Nextel). The commission’s rules provide that, in such cases, a penalty must be paid. However, that is clearly inappropriate in this case, as the licensee is receiving an EA license in a trade for which no credit was given. Will the commission waive this penalty? If not, who pays? Does the TA pay (with Nextel’s funds) or the licensee?
Obviously, there are a few more items, too, which I haven’t covered. So, there’s much work to be done regarding rebanding, and not all of it involves touching radios.
Alan Tilles is counsel to numerous entities in the private radio, Internet and entertainment industries. He is a partner in the law firm of Shulman Rogers Gandal Pordy & Ecker, and can be reached at atilles@srgpe.com.
