WASHINGTON-The Federal Communications Commission planned July 8 vote on its solution to the public-safety interference problem in the 800 MHz band likely won’t resolve the issue, as details of the ruling will not be released until later, and at least one carrier is expected to appeal the decision.
The FCC plans to vote on the matter on Thursday, according to the commission’s agenda. In late June, FCC Chairman Michael Powell proposed that replacement spectrum necessary for the 800 MHz solution come from 1.9 GHz spectrum-a sticking point between Nextel and its opponents, which favored giving Nextel replacement spectrum at 2.1 GHz.
FCC staff sent a proposal to the commissioners in March, and since then the wireless industry has been lobbying its various points of view. The FCC met in April, May and June without discussing the issue.
The notice on the sunshine agenda means that the furious lobbying is halted until the rules are released; but the parties kept it up until the last minute. After the rules are published in the Federal Register, there will be a period for reconsideration petitions and inevitable court cases.
But last week, the Ping-Pong lobbying continued. Nextel Communications Inc. and Verizon Communications Inc. hired dueling former attorneys general to debate Verizon’s charge that the FCC would violate criminal laws if it awards Nextel spectrum in the 1.9 GHz band as part of the solution to the 800 MHz interference problem.
“It is no accident that Congress chose to employ the criminal law to police the fiscal accountability of public officials. Congress well understood that stewards of public resources could be exposed to relentless pressures to convert those resources to private gain. It therefore took stern measures, and aimed them directly at the officials themselves, to ensure that they would not succumb to these pressures and instead remain true to the public interest,” said William Barr, Verizon executive vice president & general counsel and former attorney general under the first President Bush. “The plan you are considering is a patent violation of these laws.”
To present its case, Nextel hired another different attorney general under the 41st president-Richard Thornburgh.
“The FCC should reject this argument for a very fundamental reason: the Anti-Deficiency Act and the Miscellaneous Receipts Act, by their plain terms and as consistently construed by the Department of Justice only apply to agency conduct directly involving the agency’s receipt of and/or expenditure of money. The Consensus Plan will not obligate the FCC to spend money that has not been appropriated by Congress. Nor will the FCC `receive’ money by a third party to spend it as it sees fit. For these reasons, the ADA and MRA simply do not apply here,” said Thornburgh. “In the ADA’s long history, there has never been a reported case of a criminal conviction under the statute. Verizon’s ADA and MRA filings appear to be its latest `scare tactic.”‘
The FCC is expected to adopt rules somewhat based on the Consensus Plan. The Consensus Plan would shuffle the 800 MHz band to eliminate the current situation where public safety, private wireless, Nextel, other SMRs and cellular carriers are intermingled. In exchange for giving up spectrum in the 700 MHz, 800 MHz and 900 MHz bands and for paying to re-tune public safety and private wireless, Nextel has asked for 10 megahertz in the 1.9 GHz band. Nextel; the Industrial Telecommunications Association, which represents private-wireless interests; and some public-safety advocacy groups support the Consensus Plan. Other public-safety advocacy groups have expressed concern about the Consensus Plan.
Since the final Consensus Plan was filed on Dec. 24, 2002, Nextel has made several modifications including agreeing to pay the relocation costs-more than $500 million-of the broadcast auxiliary service to vacate the 1.9 GHz band.
Another change would encapsulate an agreement by Nextel and SouthernLinc that was announced last week.
Nextel and SouthernLinc reached a deal that would change the channel allocations in the re-tuning of the 800 MHz band, expanding the cellular block in SouthernLinc’s region below the 816/861 MHz line.
“The 800 MHz channel plan for areas to be designated for cellular operations in the 800 MHz band will be different in the southeastern part of the United States from the rest of the country. The intent of this frequency plan is to accommodate the two large SMR operators with existing systems in this area, SouthernLinc and Nextel, and to allow both companies to continue their operations once the 800 MHz band is reorganized,” according to a document supplied by SouthernLinc.
The agreement was reached in negotiations on June 25 at the FCC and announced without much fanfare in letters filed at the FCC June 30.
Nextel did not return a request for comment.
Preferred Communications Systems Inc., a non-Nextel EA licensee critical of the Consensus Plan, also declined to comment.
The agreement calls for Nextel to pay for the labor costs associated with SouthernLinc’s retuning but not for filter or handset replacements.
There also appears to be a problem in the Atlanta area, according to the letters. “Nextel’s subsequent analysis concludes that the non-cellular channel block may not provide a sufficient number of channels in the Atlanta metropolitan area to accommodate a small number of non-Nextel, non-Southern incumbent licensees. Nextel notes that Southern is optimistic that all non-Nextel, non-Southern incumbents in Atlanta can be re-tuned within a non-cellular channel block ending at 813.5/858.5 MHz. Representatives of Nextel and Southern have considered various ways to apportion among them a possibly reduced cellular, low-site channel block or their respective positions within a proposed smaller block,” wrote James Goldstein, Nextel senior attorney of government affairs.
SouthernLinc has a different take on the Atlanta situation.
“Even a cursory review indicates that the shortfall of channels may be as few as six channels. Another option to address Nextel’s concern is to maintain SouthernLinc’s 150-channel group in the Atlanta Area B starting at 858.5 MHz, and to the extent that during this rebanding process it becomes apparent that not all incumbents can be accommodated below 858.5 MHz, SouthernLinc would relinquish channels starting at 858.5 MHz to re-tune these incumbents and Nextel would provide SouthernLinc with replacement channels on a one-to-one basis starting above 862.25 MHz,” said Christine Gill, SouthernLinc’s outside counsel. “Reducing Southern’s overall channel count in Atlanta Area B would ignore the compromises SouthernLinc made on channel count in other parts of its footprint which would not be an equitable result.”
As Nextel was seemingly solving its SouthernLinc obstacle, it continues to receive heavy congressional static courtesy of lobbying by Verizon Wireless.
Sen. Frank Lautenberg (D-N.J.) asked the General Accounting Office to conduct an investigation into the FCC’s 800 MHz plan and respond by close of business Friday.
“I believe this proposal may run afoul of both the ADA and the MRA. As you know these statutes make it unlawful to disburse or divert money from the federal treasury without appropriation or authorization, thus vindicating the constitutional command that `no money shall be drawn from the treasury, but in consequence of appropriations made by law.’ I ask that you review the proposal and render an opinion on the question whether the FCC’s proposed spectrum giveaway is inconsistent with the ADA and MRA,” said Lautenberg. Verizon is located in Lautenberg’s state, and his letter was released by Verizon Wireless’ media-relations office.
Verizon Wireless and the Cellular Telecommunications & Internet Association support a plan that would give Nextel replacement spectrum in the 2.1 GHz band, require Nextel to set up a third-party administrator for the reimbursement and allow Nextel to receive its 2.1 GHz spectrum only as re-tuning occurs instead of all at once.
“Nextel’s demand that the FCC bypass the public-auction process and award it immensely valuable 1.9 GHz spectrum (worth at least $5 billion) is injurious to the wireless industry and especially to Verizon. Given our special need for that spectrum and our demonstrated readiness to bid on it, we have told you that as between Nextel’s proposal and the CTIA compromise by which 2.1 GHz spectrum would be sold to Nextel, we obviously would prefer the latter,” said Barr.
