[U] CAN,too

Yes, Virginia, planning-funding agreements for public-safety systems can be done.

Indeed, Steve Proctor, Utah Communications Agency Network (UCAN) executive director received confirmation on Feb. 6 that the Transition Administrator (TA) had approved its planning-funding agreement — for the amount UCAN requested — forged days earlier with Sprint Nextel.

It was a landmark day for public-safety licensees. Not only was UCAN the first significant public-safety entity to finalize a planning-funding deal, it is one of the largest 800 MHz operators in the nation. UCAN’s Motorola SmartZone system geographically covers about half the state over challenging terrain, including canyons, Proctor said. The network includes four multisite simulcast systems, 58 sites, 400 transmitters and 15,000 users that serve 85% of the state’s population.

The fact that such a large and complex system has secured planning funding — and is expected to sign an implementation agreement by June 30 — is evidence that the rebanding negotiation process works, said Sandy Edwards, Sprint Nextel’s vice president of spectrum resources.

“Hopefully, we can use this as a model for moving ahead with planning requests for very large agencies,” Edwards said at the Association of Public-Safety Communications Officials (APCO) Winter Summit early in February.

But Edwards also emphasized that no two systems being rebanded are the same, so the issues vary with each entity. Robert Gurss, APCO’s director of legal and government affairs who served as UCAN’s attorney during this process, agreed, noting that the agency is “sort of an island” in the 800 MHz space in its region, so the Utah system does not have to combat the complex interoperability and interference issues encountered in the more-congested eastern regions of the U.S.

“I think it’s a very rough precedent,” Gurss said. “It may provide some guidance, but there has to be a recognition that any two systems — even those that may appear to be the same — will have a lot of differences when you peel away the onion.”

Be proactive, remain vigilant

Certainly the encouraging news from the UCAN planning-funding deal is that an agreement was reached. The discouraging aspect was that the deal was approved almost nine months after the planning-funding request was submitted.

“Certainly all of us had hoped it would have been done much sooner,” said TA Director Brett Haan, noting that new planning-funding guidelines have been designed to accelerate the process (see story on page 6).

Proctor said he wished such guidelines existed when UCAN embarked on this endeavor. Admittedly wanting to “be ahead in the game,” Proctor first talked with Nextel officials in November 2004 and retained Gurss in January 2005 to try to secure the funds necessary to plan its rebanding effort.

“When we started this, there was no process, and that was the problem,” Proctor said. “I think, as we proceed further into these waves … you’re going to see these processes quickly evolve.”

All interviewed for this story agreed that a key to success is for licensees to get started early and focus on blocking and tackling. In the earliest stages, that means establishing a rebanding team — selecting internal staff to lead the rebanding effort, determining who needs to sign contracts and choosing third-party participants such as outside attorneys and engineering consultants.

Licensees that fail to accomplish these fundamental tasks early make rebanding much more difficult for themselves later in the process, said Alan Tilles, an attorney with Schulman Rogers Gandal Pordy & Ecker who represents numerous licensees in the rebanding process and writes MRT’s Final Word column.

“Some [licensees] are treating it like, ‘If I ignore it, it will go away,’” he said. “Eventually, they come around. But by the time they come around, it’s so late in the process that it turns into a fire drill to get all the work done.”

Is planning-funding necessary?

Of course, accomplishing even the most fundamental tasks requires work from people who expect to be paid. Planning funding is designed to help cash-strapped licensees compensate those involved in the early stages of its rebanding effort — be it internal staff or third-party vendors — so the licensee can have the information necessary to negotiate a final rebanding agreement with Sprint Nextel.

For licensees with simple systems, requesting planning funding may be a step that complicates matters unnecessarily. In fact, Sprint Nextel’s Edwards noted that about one-third of all the initial planning-funding requests simply were folded into final rebanding agreements.

“I’m seeing some small folks asking for planning funding, and that’s nuts,” Tilles said. “In that small-licensee situation, requesting planning funding only benefits one person, and that’s me [the lawyer], because I get to do two negotiations. And this shouldn’t be about me.”

However, licensees should request planning funding when those working on the process cannot wait until a final agreement is executed to get paid and/or when a licensee wants clarification that Sprint Nextel will pay for something that might seem questionable, Tilles said.

For licensees, the nightmare scenario is to pay for a rebanding task only to learn later that it will not be reimbursed. If that happens, the supposedly cost-neutral rebanding item becomes an unbudgeted expense for the licensee.

“You’re taking a risk, unless you’re pretty confident that you’re doing it on a very low-cost basis … and you’re confident there aren’t any questions that are going to be raised,” APCO’s Gurss said. “It is a risky situation, at least until we get better guidance and history about how these things will [be treated].”

Indeed, of all the Wave 1 licensees, less than 10% have requested planning funding, Edwards said at the APCO Winter Summit.

“Perhaps there should be more,” Edwards said.

Meanwhile, Tilles said third-party rebanding “experts” should be willing to stand behind their work so that 800 MHz licensees do not have to worry that Sprint Nextel will not reimburse them for a performed task.

“We claim to know a lot more about rebanding than the licensee — if we didn’t, why would the licensee need us?” Tilles asked. “So why in the world are we putting the licensee at risk if there’s a non-recoverable cost? We’re supposed to know what’s recoverable and what’s not. We should be willing to take the risk that we’re going to do something that’s a non-recoverable cost. That shouldn’t be the licensees’ risk; that should be ours.

“Some people are not doing it that way, and I think that’s wrong.”

Devil’s in the details

In both the planning-funding request and the final rebanding agreement, licensees should be prepared to justify the need and cost of each item for which it wants reimbursement from Sprint Nextel, Tilles said.

“This is not a normal negotiation — Nextel cannot give you more than you’re entitled to,” Tilles said. “You’re not negotiating what you’re entitled to. You’re negotiating whether you’ve sufficiently proved what you’re entitled to.”

Edwards stressed the importance of licensees using TA-supplied applications that outline the level of detail required. When licensees justify costs properly, “things go very smoothly,” he said. If not, Sprint Nextel will seek more detail — a practice that has been a source of complaints from some licensees.

“If somebody just turns in an estimate that says, ‘Frequency analysis — many thousands of dollars,’ and provides no detail of what they are doing, we’re going to ask, ‘What are you spending all this money on?’” Edwards said. “We’re just looking for the detail necessary to show that it’s a legitimate cost and that it’s prudent and necessary.”

Haan said the TA believes it is critical for licensees to be an active part of rebanding and not simply delegate the process to third-party vendors and expect no further involvement until the final agreement needs to be signed.

In addition to actively leading project management, licensees should ask vendors to justify their estimates before submitting them to Sprint Nextel or the TA.

“Licensees need to be engaged in the process because … at the end of the day, it’s the licensee’s system,” the TA’s Haan said. “Treat these as if these were your own funds. … What UCAN did was give the detail of what they wanted to do and explained why.”

Proctor said UCAN tried to be diligent about keeping vendor costs in line without compromising its system. As a result, none of the communications between Sprint Nextel and UCAN were argumentative in nature — Sprint Nextel rebanding managers only sought additional detail for the items listed, he said.

Although every licensee is certain to remember to charge for time spent in actual negotiations, UCAN’s Proctor noted that a significant portion of UCAN’s planning-funding money is dedicated to a series of educational “road shows” to explain the rebanding process to the 109 agencies in 10 counties that use the system.

Attention to detail not only will make negotiations proceed more smoothly, it also can benefit the licensee financially, Tilles said. Detailed planning can help ensure that indirect “hidden” costs associated with rebanding are recognized, so that rebanding can truly be cost-neutral to the licensee.

“For instance, in a dispatch situation, most dispatchers know who has the radio with that number on it, and it pops up in their system that it’s ‘Phil’ calling,” Tilles said. “If you’ve swapped out that guy’s radio that day, you’ve got to make sure that the system gets updated that Phil’s got a temporary radio, and the next day, Phil’s got his old one back.

“There’s time involved in that programming. It’s those little things that are time consuming that need to be accounted for.”

No need to fight

Many licensees already have complained that planning-funding agreements require too much detail, and lengthy back-and-forth communications could make it easy for a licensee to decide rebanding is not worth the effort. But rebanding is an FCC mandate, so licensees must remain patient and vigilant, Proctor said.

“If you’re frustrated with this, I don’t know that giving up is an option,” Proctor said. “So don’t give up, stay in the game. Focus on whatever your vision is to getting this completed and work toward that.”

Tilles echoed this sentiment. “Don’t ask for more than you’re entitled to, but don’t settle for less,” he said.

Of course, such a stance can lead to disputes, especially where the parties disagree on the interpretation of policies established by the FCC or the TA. Haan said it is important for licensees to contact the TA about its policies when there is a question instead of relying on an interpretation from another entity.

Meanwhile, when the almost-inevitable disputes in complex negotiations arise, the key is not to let a disagreement undermine the larger rebanding process, Edwards said.

“If there is a dispute, let’s go to mediation, guys — don’t let the problem drag out,” Edwards said at the APCO Winter Summit, noting that Sprint Nextel always is willing to mediate. “There’s no need for us to argue for months and months and months. We don’t have that much time. Let the mediator decide what’s reasonable, what’s prudent, what’s necessary and get on with life.”

Better days ahead

While many hailed the approval of UCAN’s planning-funding request, others have expressed concern that it took so long, despite the fact that representatives like Proctor and Gurss have been at the forefront of the public-safety rebanding effort. A majority of planning-funding requests remain unfinished.

“There’s an awful lot of other planning requests that are pending that need to get going,” Gurss said. “And these are not agencies that just woke up two weeks ago and said, ‘Oh, I need to do rebanding.’ These are folks that have people working for them who are very knowledgeable and have known about — and been involved in — rebanding for years.”

For licensees that lack officials with such knowledge of the process, rebanding may seem especially daunting, especially when there are a number of rebanding issues without established policies or precedents (see table on page 42). But that will not always be the case.

Tilles said he already has seen the benefits that familiarity with the process can bring — one vendor that struggled to provide the correct level of detail for its first rebanding quote recently submitted an estimate that Sprint Nextel approved immediately. Such stories should become increasingly more commonplace, resulting in a snowball effect that should create greater efficiencies in future waves, he said.

“Most of the problems that we have are geared to the fact that we’re in Wave 1 — these people are the first ones through the door, and they’re kind of plowing the way for everybody else,” Tilles said. “Once those [Wave 1] people are completed and through the door, the people coming behind are going to be able to do it better, faster and cheaper.”

Given the complicated nature of public-safety systems, Edwards said he hopes some flexibility is granted within some Wave 1 rebanding deadlines to allow proper planning and execution of rebanding those networks.

“I don’t want to say to a public-safety entity, ‘OK, you have three days to get this done.’ That’s not good for any of us,” he said. But the belief that rebanding will accelerate in future waves has Edwards optimistic that the nationwide project will be completed in the summer of 2008, as mandated by the FCC.

“I think the process is getting started, deals are getting done — we’ve done well over 500 deals — and I think the cooperation of everybody is getting better,” he said. “It’s like we all woke up several months ago, we’ve had that cup of coffee, and now everybody’s ready to get down to the job of getting the deals done and getting rebanded.”

Frequently asked rebanding questions

Rebanding pitfalls to avoid

Procrastinating

Starting late can make it difficult to meet deadlines, alter strategies and secure workers for tasks.

Abdicating authority

Vendors can play an important role in rebanding, but licensees need to control the process to protect their systems.

Dwelling on disputes

If there is an impasse after positions are clear, don’t belabor the point. Look to the TA or a mediator for help.

Generalizing

In applications and in recordkeeping, a detailed justification is a licensee’s best friend.

Acting on rumors

Anecdotes can spark ideas or raise flags, but they may not be relevant to your system. When in doubt, ask the TA.