A three-judge federal appeals court panel took both the Federal Communications Commission and the Associated Public Safety Communications Officers International Inc. to task regarding the commission’s microwave- relocation plans, saying neither side made a clear case for or against changes the FCC made to its original relocation proposal.
The background: An original notice of proposed rulemaking exempted public-safety entities from having to move from the 2 GHz band to the 6 GHz band to make way for new personal communications services. Following the comment cycle, the NPRM was amended to eliminate that exemption, making public-safety operators eligible for relocation negotiations with PCS licensees, who must pay all moving costs. APCO has charged that the commission changed its position regarding relocation without providing an adequate explanation.
Currently, relocation negotiations have a five-year limitation; once relocated, however, the FCC has said public-safety operations can move back to their original frequencies if they can make the case that, after one year, new facilities are not comparable.
“There are no economic consequences because the other guy has to pay,” said Judge Lawrence Silberman to APCO counsel John Lane of Wilkes Artis Hedrick & Lane. “Where is the injury here if all is paid?”
“If you are going from 2 GHz to 6 GHz, it is a huge move,” Lane answered. “There are different operating conditions.”
Silberman pointed out that FCC rules stipulate “comparable facilities” and, therefore, operating conditions should be covered by that umbrella. “Why is [6 GHz] less desirable?” he asked.
Lane explained that the operating costs would be different. “We’re not opposed to moving,” Lane said. “We just don’t want to move with a gun to our head. We are not against PCS. We can share and, when we can’t, we will negotiate.”
Silberman pointed to FCC documents that said such sharing would cause more interference than was initially anticipated at the time of the original NPRM. Lane argued that most people who commented were in favor of the original NPRM that would have allowed APCO members to stay put, and then “a new chairman comes in and forgets about these important people. We don’t take the position that the FCC can’t change its mind, but something happened that did.”
FCC attorney James Carr told the panel that while it wasn’t entirely clear if higher operating costs would be reimbursed under the current order, “the FCC will use the benchmark that [facilities] should be equal to or better than” those that public-safety agencies may have to vacate.
Carr was taken aback by a question posed by Silberman regarding PCS licensees’ right, over that of an incumbent, to the 2 GHz spectrum. “Why don’t you put PCS somewhere else?” he asked.
When Carr explained that the 2 GHz band was the more desirable spectrum, and that PCS operators would experience a loss of technological quality if they were placed elsewhere, Silberman said, “Isn’t that the same for public safety? They are on a band that works, and you want to move them to a place that is suspect. There is no guarantee that they will find technological parity.”
