WASHINGTON—FCC Commissioner Kathleen Abernathy said the five-member commission should vote again if changes are made to the government’s proposed ruling on solving interference at 800 MHz, thus casting doubt on Nextel Communications Inc.’s hopes to clarify rules through a procedure called an erratum.
Abernathy said she believed the Federal Communications Commission should use a reconsideration motion to address issues being discussed by Nextel and others. That motion would have to be completed before Nextel decides whether it will accept the commission plan. “Erratums are for clerical errors in the item,” Abernathy said at a press briefing last week.
The FCC can reconsider its own rules within 30 days of publication in the Federal Register. If the commission chooses this route, the 30-day clock for Nextel to accept or reject the plan would start over.
Abernathy indicated that many of the issues Nextel has asked to be clarified by erratum would need to be done by an FCC reconsideration motion. Erratums can be done by the FCC’s Wireless Telecommunications Bureau, while a reconsideration motion would require a vote of the full commission. What is less clear is whether the FCC will decide to handle some or all of Nextel’s clarifications by itself or whether it will require Nextel to file a petition for reconsideration. If Nextel is forced to file a petition for reconsideration, other parties critical of the proposal would have an opportunity to weigh in.
Tim Donahue, Nextel chief executive officer, said last month that Nextel believes that the issues it has been discussing with the FCC can be handled through an erratum.
“It is our hope and expectation that the issues can be resolved through an erratum. The people who are in the know have advised me that an erratum will work,” said Donahue. “We haven’t given a whole lot of thought to a petition for reconsideration because we do think and a whole lot of experts have advised us that is the way it will go. If that is not the way, we will have to see where to take it.”
The FCC earlier this year adopted a plan to solve the interference problem, swap some spectrum with Nextel and have Nextel pay to move other companies off the spectrum band Nextel would receive. It has yet to be published in the Federal Register. Once it is published, Nextel has a month to say whether it will accept the plan.
However, the plan likely will be challenged, either by Verizon Wireless or an economic area 800 MHz licensee adversely impacted by the plan.
Some of the issues Nextel has asked to be clarified include the rebanding process, interference protection and the amount of money it could potentially owe the U.S. Treasury at the end of the transition.
“Within the order there are ambiguities and inconsistencies that have to be clarified,” Geoff Stearn, Nextel vice president of spectrum resources, told RCR Wireless News Sept. 24. “Nextel’s past retuning experience has taught us that we have to address these issues upfront. This will prevent delays and misunderstandings during the process. It is critical that we don’t have any misunderstandings.”
Two ESMRs with 800 MHz operations objected to Nextel’s request that the FCC clarify how they would be treated as part of the 800 MHz band reconfiguration. “Nextel has requested `clarification’ that ESMR incumbents, other than Nextel and SouthernLinc, that elect to be relocated out of the non-cellular 800 MHz channel block be retuned first to the 816/817-861/862 MHz block and to the very bottom of the 817/862 MHz band only if there is sufficient guard-band capacity to accommodate them,” said Elizabeth Sachs, outside counsel to Airpeak Communications L.L.C. and Airtel Wireless Services L.L.C. “It is simply not credible that these numerous statements could be read out of the FCC’s order by issuing the `clarification’ sought by Nextel.”
Also last week, Nextel told the FCC that interference requirements set out in the FCC’s 800 MHz rebanding plan can’t be achieved until after the reconfiguration process is complete.
“Commercial mobile radio service carriers cannot meet the new interference protection standards during the reconfiguration transition period during which 800 MHz CMRS, public-safety and private-wireless channels will remain interleaved. The power limits necessary to meet the post-reconfiguration standard in the still-interleaved transition period spectrum environment would typically create significant coverage gaps for Nextel, SouthernLinc and cellular A-band operators,” said Nextel. “CMRS users would experience degraded service, dropped calls and reduced 911-call reliability.”
Nextel proposed that the FCC establish a transition period interference protection standard to “provide an achievable, enforceable interference definition specifying the rights and responsibilities of all 800 MHz licensees.”
Last month, Nextel said it wanted to reduce the amount of money it would owe to the treasury. In a filing regarding meetings Donahue and others had with members of the FCC and staff, Nextel asked that its spectrum valuation be used instead of the FCC’s valuation. Nextel would pay money into the treasury if the value of the spectrum it returns and relocation expenses do not equal $4.86 billion—the value the FCC put on the G-block. The G-block is the highly contested spectrum in the 1.9 GHz band that Nextel would receive as part of the rebanding plan.
The modification of Nextel’s licenses to include spectrum in the G-block is the subject of a legal opinion expected this month by the Government Accountability Office. GAO, the investigative arm of Congress, plans to issue a legal opinion on whether the FCC violated the Miscellaneous Receipts Act or the Anti-Deficiency Act, said Susan Poling, GAO associate general counsel. “It is not an investigation. It is a legal opinion,” said Poling.
Sen. Frank Lautenberg (D-N.J.) asked the GAO to investigate the 800 MHz plan, and the FCC also asked for a legal opinion and it put safeguards in the plan if the ruling was unfavorable.
In June, Verizon Communications Inc., the parent company of Verizon Wireless, warned the FCC that it could be violating criminal laws if it awarded Nextel spectrum in the 1.9 GHz band as part of its plan.
In an apparent attempt to blunt this, the FCC said it would modify Nextel’s 800 MHz licenses instead of granting new licenses. The modification would include use of spectrum in the G-block.
