FCC is fully engaged in rebanding

The FCC has become more involved in helping resolve rebanding problems, releasing several public notices and orders that clarify certain aspects of the project. Although these items do not resolve every pending issue, they certainly get us closer.

In a response to a Petition for Reconsideration filed by our office, the FCC clarified the “second touch” issue from the city of Boston mediation decision (MRT, January, page 80). The FCC originally found that Boston was not entitled to cost recovery from a touch to its radios strictly for the purpose of removing old programming. However, the FCC clarified in its subsequent order that the decision related solely to Boston, and the ability of other licensees to receive cost recovery would be considered on a case-by-case business.

The commission also clarified its policy concerning cost recovery for Special Temporary Authority (STA) systems. Numerous systems (particularly in the public-safety radio services) were authorized under STA when the FCC imposed a freeze on new licenses in the 800 MHz band, in order to accommodate the identification of systems that needed to be rebanded and spectrum that was available for that purpose. However, the freeze has dragged on for much longer than anticipated (or hoped), preventing some public-safety agencies from continuing the build out of systems that previously had been approved for construction.

The FCC now is requiring the licensee of any facility authorized under an STA to request a waiver from the commission in order to receive reimbursement for rebanding the facility. Although the commission’s order now requires an additional step for licensees that legitimately have been constructing facilities, the clarification at least now provides a path for such licensees to follow.

Another clarification involved the recoverability of costs for rebanding mobile-only and temporary facilities. Several months ago, the FCC denied recoverability for Chevron regarding its mobile-only facilities, finding that such facilities were licensed on a secondary basis. However, the commission’s clarification recognized that not all mobile-only facilities were secondary operations, particularly those operated by public-safety agencies in the NPSPAC band.

All three FCC actions should be reviewed in their entirety to determine their applicability to individual rebanding circumstances. The commission also is looking at tweaking certain aspects of rebanding, including APCO’s request that the FCC require the TA to set benchmarks for NPSPAC reconfiguration and certain aspects of the mediation process. What is clear is that the FCC is now fully engaged in the proceeding.

There are a number of issues that remain outstanding and need to be considered quickly by the commission in order to enable NPSPAC reconfigurations to move forward expeditiously. These include the following:

• The conditions which Sprint Nextel seeks to impose on the planning funding agreements of Wave 4 border licensees.

• The replacement of EDACS MASTR II crystal repeaters with MASTR III repeaters.

• The circumstances under which rebanding tracking software costs may be recoverable (criteria for which was in-cluded in the Boston mediation decision).

• Whether public-safety radios capable of operating on the current NPSPAC trunked frequencies, but not on the new NPSPAC trunked frequencies, should be replaced — even if the licensee is not presently utilizing NPSPAC trunked frequencies.

There is a major cost element with regard to rebanding software and the infrastructure and radios that will need to be replaced. A handful of Wave 1 mediations concern these issues, and the outcome of those mediations (and FCC appeals) will lay a significant course for later wave licensees.

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 atilles@srgpe.com.