FCC errs on latest rebanding decision

Last year was turbulent in many ways. Most significantly for the land mobile radio industry, it marked the beginning, in earnest, of 800 MHz rebanding. The Lower 1-120 negotiations didn’t go too badly, giving hope that NPSPAC negotiations could proceed in a similar template. However, reality did not meet promise. So many issues arose, including:

• the adequacy of new frequency assignments for 858 MHz to 860 MHz licensees in the Southeast portion of the country;

• the adequacy of vendor explanations of services to be rendered;

• Nextel negotiators’ belief that costs for rebanding a NPSPAC system should be the same as a 1-120 system;

• delays in receiving timely cost estimates from vendors because delayed deadlines for earlier waves created a manpower shortage for later waves;

• Nextel’s desire to insert limiting language for Wave 4 requests for planning funding; and

• the failure of the FCC to respond to Petitions for Reconsideration that were filed in 2005.

The FCC tends to issue important rebanding decisions right before I go on vacation, and this year was no exception. On Dec. 20, 2006, the FCC issued a decision regarding the cost recoverability of software designed by MCM, which is intended to make rebanding record and sasset tracking easier for licensees. Although the decision didn’t totally close the door on the ability to recover costs for the software, it did lay down some very rigorous guidelines.

The decision also did something else, which could be far more devastating for rebanding. Intending to demonstrate how the city of Boston (the licensee involved) might be miscalculating use levels pertaining to the software, the FCC stated that licensees could not seek cost recovery for a “touch” to radios to remove old programming once rebanding is completed.

It is fairly easy to see where the FCC went wrong; the commission obviously focused on new Motorola trunked radio software that can determine whether a site is operating on old or new channels. However, the FCC failed to consider that this doesn’t apply to the conventional NPSPAC channels, nor does it apply to other manufacturers’ systems.

Worse is that the FCC rather cavalierly suggested that an officer in the field might accidentally select the old channels, but that such incidences would be rare and not burdensome. This important discussion was even relegated to a mere footnote.

Unfortunately, the FCC couldn’t be more wrong. While I could go on at length about the real public-safety danger created by leaving old programming in radios, I don’t have enough room on this page to give any of the issues enough space. However, take my word that the issues are compelling and demand a response.

Consequently, even though we were not a party to the proceeding, we immediately (within 24 hours) filed a Petition for Reconsideration on behalf of the rebanding licensees that we do represent. We believe this issue threatens to delay perhaps one-third to one-half of rebanding negotiations. We hope that the FCC acts quickly and decisively to correct what we believe was an inadvertent, yet egregious, error.

Alan Tilles is counsel to numerous entities in the private radio and Internet industries. He is a partner in the law firm of Shulman Rogers Gandal Pordy & Ecker and can be reached at [email protected].