Subject: [NEXTEL-1] Small Business In Telecommunications on Supplemental Comments of The Consensus Parties

From: Marcel <[email-masked]>
Date: Tue, 14 Jan 2003 22:37:27 -0500

Washington, D.C. 20554
In the Matter of
Improving Public Safety Communications
WT Docket No. 02-55
in the 800 MHz Band

Consolidating the 900 MHz Industrial/Land )
Transportation and Business Pool Channels )

To: The Commission
 Comments of Small Business In Telecommunications To
 Supplemental Comments of The Consensus Parties

January 10, 2003

Schwaninger & Associates, P.C.
1331 H Street, N.W., Suite 500
Washington, D.C. 20005
(202) 347-8580

TABLE OF CONTENTS
Summary .................................................................... i
Introduction ..................................................................1
The Coalition lacks vital Support .................................................1
The Tenuous Nature of the coalition ...............................................2
The Plan Lacks Necessary Legal Support ...........................................3
Funding ...............................................................3
License Issues ..........................................................4
Essential Information For Reasoned Decision Making...........................6
Notice and Comment Problems .............................................9
Flawed And Contradictory Premises ...............................................9
Logical, Legal And Equitable Problems ...........................................10
Nextel’s Use of The 900 MHz Band ..............................................16
Greater Financial Assurances Are Required ........................................17
Conclusion ..................................................................18

Summary
The PWC has stated to the Commission that its plan, as articulated within the Supplement,
must be accepted by the Commission without material change or the plan must be deemed
unreliably supported by its signatories and, thus, fatally flawed. However, as clearly
shown herein, the PWC plan cannot be accepted “as is”. It is lacking in legal foundation.
It is blind to and inconsistent with the rights of incumbent licensees which rights are
protected by federal statute. It is lacking in necessary specifics regarding the
contractual rights and duties among Nextel, the proposed 1.9 Ghz licensees (and the
agent/trustee of the licensees’ shares of stock), the Fund Administrator, the proposed
entity called the RCC, the Planning Committees, and affected licensees. Adoption would
creation violations of the Commission’s long established rules and decisions relevant to
licensing, real parties in interest, and making application to the Commission. It will
result in economic waste.
It is bereft of consideration of due process under law. And, it fails to provide necessary
funding assurances. In the final analysis, it fails.
Perhaps its greatest failure is that it never moves beyond the voluntary to the
enforceable.
At no juncture has the PWC requested, for examples, that the Commission order Nextel to
pay $850 million dollars; order NPI to pay the cost of its own relocation; order licensees
to waive their protections granted under 47 U.S.C. §303; order licensees to rely on the
Nextel-provided funding source until that funding proves inadequate; or order Nextel and
its newly created 1.9 Ghz licensees to enter into contracts to secure funding. Instead,
the PWC plan requests that the Commission simply recognize the PWC’s intentions and base
the creation of rules on these intentions between private contracting parties.
ii
Equally disturbing is the PWC’s failure, again and again and again, to explain or even
attempt to articulate the legal authority upon which the Commission might rely in adopting
the extra-legal suggestions of the PWC. Since adoption of the PWC plan would require that
the agency make legally enforceable its decision, that decision would require the agency
to order parties to take particular actions. What the PWC fails to do at every turn is to
discuss or find any authority upon which the agency might rely in adopting the orders
which would be required to give the necessary legal imprimatur to the PWC’s machinations,
i.e. make law. For example, although there is more than a serious question regarding
whether the agency could order Nextel to pay $850 million into a privately operated fund
(SBT has found no basis for such an order under Title 47 or other federal statute, given
the procedural status of these matters), absent such an order the agency is without
necessary legal authority to enforce the necessary funding of the PWC plan. Therefore, if
the agency cannot order the funding (in fact, the PWC plan does not contemplate such an
order)
then
the entire plan collapses as fully unfunded under law.

Nor is the PWC requesting that the agency make any factual findings upon which to base its

orders. The PWC does not request a finding of unlawful behavior on behalf of interfering
CMRS operators, although ample evidence exists. Instead, the PWC tacitly suggests that the
harm to public safety operations and other analog systems be treated like Acts of God,
fully unforeseeable and outside the control of regulatees. This is not true as the PWC’s
initial comments and many other commenting parties have made clear. The effect on public
safety operations from the operation of low-site cellularized systems was known and
ignored by interfering CMRS operators. The false premise which has propelled the PWC is
that such operations are lawful. They are not when the?iii result of such operations is
the creation of harmful interference to other systems.
Were this false premise finally jettisoned from the discussion regarding interference at
800 MHz, the agency’s path would be entirely clear. The responsibility to remedy the
harmful interference would rest upon the interfering CMRS operators, without regard to the
operations of other, legitimately licensed, innocent operators. In sum, the PWC asks the
Commission to violate law to cover up violations of law. One is reminded of the old
chestnut of “two wrongs not making a right.”
That the PWC has been fully coopted by and through its negotiations with Nextel is
obvious.
There is nothing within the PWC plan which suggests independent reasoning on the part of
the
participants. It is a brokered deal and the terms of the deal show clearly the identity of

the party
with the most perceived leverage in those negotiations – Nextel. Following adoption of the

proposed plan, all operators excepting Nextel are placed under a threat of license
revocation for failure to walk lockstep in the unfunded relocation. All planning
committees and coordination efforts would be made only with Nextel’s participation and
undue influence.

And all risk of success would fall on public safety entities and others who would be
forced to rely upon private contractual relations for which none (including the
Commission) is granted standing to enforce. The most the PWC promises adversely affected
licensees is “consideration” of their interests. This is not enough.
Affected licensees are entitled to all rights granted under law. Expedient administration
of Nextel’s business agenda is an insufficient reason for denial of those rights.
SBT strongly urges the Commission to reject the PWC plan. Despite its many moving parts
and copious pages of attachments which falsely suggest that all issues have been
considered and?iv resolved, the plan fails to provide the most essential characteristics
of reasoned decision making and lawful adoption of rules. It totally fails to take into
account facts and law. And although the Commission might consider whether its
discretionary authority extends to the far reaches necessary to encompass the requests of
the PWC plan, even the expertise of the agency cannot supply the private contractual terms
upon which the PWC plan would rest. The PWC plan does not provide them and the agency
cannot supply them. And absent those facts, the agency is unable to move to adopt the PWC
plan.
For those reasons stated above and those reasons fully articulated within these Comments,
SBT respectfully requests that the agency reject the PWC plan and look toward the
interfering CMRS operators for remedial actions consistent with SBT’s earlier filed
comments within this proceeding.?1 As recognized by the WTB, the parties style themselves
the “Consensus Parties” and that the use of the word “consensus” only denotes temporary
agreement among the signatories.
To avoid confusion, SBT will refer to the group as the PWC.

Before the
FEDERAL COMMUNICATIONS COMMISSION
Washington, D.C. 20554
In the Matter of
Improving Public Safety Communications ) WT Docket No. 02-55
in the 800 MHz Band
Consolidating the 900 MHz Industrial/Land
Transportation and Business Pool Channels

To: The Commission

Comments of Small Business In Telecommunications To
Supplemental Comments of The Consensus
1 Parties
Pursuant to that Public Notice entitled Wireless Telecommunications Bureau Seeks Comment
On “Supplemental Comments Of The Consensus Parties” Filed In The 800 MHz Public Safety
Interference Proceeding - WT Docket No. 02-55, DA 03-19 (released January 3, 2003), Small
Business in Telecommunications (SBT) hereby submits its comments in opposition to that
document entitled “Supplemental Comments of the Consensus Parties” (Supplement) dated
December 24, 2002 filed within this proceeding by those parties referenced therein as the
Private Wireless Coalition (PWC). SBT respectfully requests that the instant document be
included within the record of this proceeding as a necessary response to that Supplement,
which response could not have been made previously.
The Coalition Lacks Vital Support
The PWC’s list of supporting organizations and corporate sponsors continues to lack vital
support from interested persons. Absent from the list are any representatives of the
utility industry, a heavy user of 800 MHz spectrum. Although numerous utility companies,
including its representative organization UTC, filed comprehensive comments with the
Commission in this proceeding, the PWC’s efforts have not netted a single member of that
industry for support of its plan. The plan has been roundly rejected by the utility
industry in earlier comments and nothing contained within the Supplement appears designed
to accommodate the valid concerns of those entities which are a portion of the industry
segment generally referred to as Critical Infrastructure Industries (CII).
Conspicuously missing from the ranks of the PWC is Nextel Partners, Inc. (NPI) Provided
with months of additional time between the filing of its Reply comments and its new
Supplement?2
position, the PWC still has not been joined by NPI. Nextel Communications, Inc. (Nextel)
is a
minority, non-controlling shareholder in NPI, not the parent of NPI. Accordingly, NPI’s
vast
numbers of licenses and channels must be removed from any equation, engineering or claims
made
by the PWC to bolster its brokered deal.

Also missing is support from the airline industry, Southern LINC, or commenting cellular
entities. Further missing is any entity which represents those businesses and groups that
would be adversely affected by the Commission’s grant of a nationwide license to Nextel
for the coveted 1.9 Ghz spectrum. Neither NAM, MRFAC nor SBT have rejoined the fold of PWC
membership, each having left, in some part, due to the broad concessions to Nextel which
the PWC plan proposes.
Motorola, the leading supplier of 800 MHz equipment, is not a part of the PWC and neither
is any other manufacturer of equipment, many of which filed comments in this proceeding.
Accordingly, the PWC’s claims regarding its representative nature of the affected persons
and industries which rely on the 800 MHz spectrum for operations and growth is belied by
the numerous lacunas in vital support. The claimed consensus is not an agreement among all
or even nearly all of the affected members of the industry. Instead, it is a brokered deal
among its signatories, produced in private meetings without input from the Commission,
non-members or the public. Both the manner and results of those meetings in the form of
the PWC’s newest efforts go to the weight of the claims made within the plan and undermine
any assumptions regarding the viability of the plan as a working model.
The Tenuous Nature of the Coalition
The Commission may note that the PWC is not built on a solid foundation. Although its
members have signed off on the present Supplement, each member’s participation is
conditional and may be withdrawn if the plan is not adopted by the agency exactly as
designed by the PWC.  Reading more like contract than comment, the PWC has clearly stated
more than once in its Supplement, “the Consensus Plan must be adopted as a whole; any
material changes will jeopardize the voluntary commitments of the affected licensees and
their representative associations essential to successful implementation.” Supplement at
pages iv-v. The Supplement does not define the phrase “material changes” within its
admonitions to the agency, therefore, the effect of any changes in the plan via customary
rule making efforts is left unknown.
If, for example, the agency indicated that the plan is not sufficiently funded ( a real
possibility) or that the organizations which would oversee the coordination efforts are
not correctly chosen, what then of the PWC’s vaunted coalition? The clear conclusion is
that the coalition would be no more and its alleged consensus would be fractured or, at
the least, rendered wholly unreliable.
What the plan is, then, is not a set of comments but a contract among its members for
which it seeks ratification from the agency. Lacking ratification of the entire deal, the
deal is off the table and the Supplement, including all comments made therein, are to be
treated as a nullity.
If not
deemed a nullity, at least without support from any signing members. It would be as though

comments had been filed anonymously and, therefore, the entirety of the Supplement should
rightfully be viewed as unsigned and unsponsored, since its members cannot agree or, at
least have?2 In the unlikely event that the Commission were to adopt the PWC funding
proposal,
SBT respectfully requests that the agency decide that all affected 800 and 900 MHz
licensees fall
within that class of persons for whose benefit the agency’s order is made for the purpose
of
providing to each such licensee those protections provided by 47 U.S.C. §§407 & 411 in the

event that the funding is not timely forthcoming.
3 not articulated, what portions of the plan represent quid pro quo among its members
pursuant to private, unpublished negotiations and are, therefore, inviolable in the eyes
of one or more of its signatories.
The Plan Lacks Necessary Legal Support
Although numerous commenting parties, most notably SBT, have seriously questioned the PWC
plan on those issues related to necessary statutory authority held by the agency to adopt,
in whole or in part, the PWC plan, the Supplement does not address these basic concerns.
In fact, the supplemented PWC plan creates additional conflicts with law and the rights of
licensees.
Funding:
The area of greatest disagreement is the funding mechanism of the PWC plan. Although the
organizations that will together administer the proposed funding may be purely motivated
to act in the public interest, the fact remains that the funding is neither by rule or
law. The PWC does not propose that the agency create a rule which states, in essence,
“Nextel is hereby ordered to deposit up to $850 million in a privately administered
account to be employed for the purpose of financing the PWC plan.”2 Yet, absent this type
of codified or adjudicated decree, the entire funding mechanism is wholly speculative and
unenforcable.
This essential portion of the PWC plan simply has no basis under law and cannot be
employed for the purpose of forwarding the coalition’s efforts.
Extralegal financing mechanisms, based on voluntary cooperation, among wholly private
entities, not subject to agency oversight, and lacking any foundation under Title 47 for
the purpose of establishment, much less official recognition, cannot serve as the basis
for rule making.  To date, the PWC has not cited any statutory authority which would
demonstrate the agency’s ability to accept the PWC’s funding mechanism as a basis for
adoption of the plan. And lacking that statutory authority, the agency’s adoption of the
PWC plan would be outside of its mandate and the strict confines of its authority related
to licensing and compensation of licensees that are ordered to suffer relocation.
One of the obvious problems is that the amount pledged by Nextel is capped. The agency has
never adopted a capped approach to a party’s obligations to finance relocation of
licensees. The very nature of restricting the obligations of a party seeking to relocate
another entity’s system for the moving party’s benefit, would result in an immediate
finding of arbitrariness contrary to law.
If the PWC and Nextel sincerely believe, as is stated within the Supplement, that the
final tab for relocating all 800 MHz systems to accommodate the PWC plan is no more than
$850 million, then the risk for that belief should be placed squarely on the persons
making those claims and attempting?
3 The PWC is not wholly convinced, despite its showings, that Nextel’s estimation of
costs and ability to pay are accurate or dependable. For one of many examples within the
plan,
at Page 7 of the Supplement, the PWC addresses the possibility that Nextel’s commitment
may
“prove inadequate.” In such event, the rebanding process would not be continued, left only

partially accomplished, with all attendant problems that such circumstances would create.
4 Supplement at Ftn. 6 to derive from those claims an advantage in future licensing and
operation.3 Whatever method is ultimately chosen by the Commission, if any, to finance any
rebanding of the 800 MHz spectrum should neither penalize innocent, non-interfering
licensees; nor should it be capped. The vagaries of circumstances among the thousands of
unique facilities and the effect of time on costs and an untold number of other factors
require a highly flexible approach to funding. And, of paramount importance, the funding
vehicle must be certain.
Further complicating the matter is that Nextel’s “funding offer was and is expressly
conditioned on”4 the Commission adopting without material change the PWC plan and grant to

Nextel of the coveted 10 MHz of spectrum at 1.9 Ghz. The Commission’s authority under
Section 309 does not contemplate this method for issuance of licenses. Section 309 directs
the agency to issue licenses pursuant to competitive bidding or other mechanisms based on
engineering, etc.; but the Act does not grant authority to the agency to grant a license
based on a party’s voluntary commitment to place money in an privately administered
account, no matter for what the account may be used. Section 309 also directs the agency,
although not as a primary mandate, to take those actions which would return to the U.S.
Treasury the value of spectrum licensed to private entities.
Since the U.S. Treasury would not see a dime of Nextel’s voluntary contributions, one can
assume that the PWC did not take into account this element of the agency’s Congressional
directions.
SBT can find no legal or statutory authority for the Commission’s adoption of the PWC
funding mechanism as proposed
There exists no penumbras of Title 47 upon which it might rest, much less any specific
language cited by the PWC in support. Ignoring the call for such support by commenting
parties, the PWC has moved blithely forward in formulating its tenuous coalition based on
the proposals within the Supplement, without expending any effort to address these
threshold issues. Having failed to address these issues, even remotely, the Commission is
left to assume that the PWC has no answers and chooses, instead, an underlying hope that
the agency will ignore the problem in adopting the PWC plan. However, the Commission is
not positioned to ignore the limits of its authority and must act in accord with statute.
Accordingly, the PWC plan must fail as a basis for rebanding.
Licensing Issues:
Although SBT has expressed supra. its strong disagreement with the funding mechanism of
the PWC plan, and has further questioned seriously the agency’s authority to grant to
Nextel authority to operate on the relevant 1.9 Ghz spectrum as a result of the voluntary
financial commitment of Nextel to the plan, the PWC’s proposals further complicate the
legal issues?
5 The last sentence of this paragraph is fully unexplained. Nextel’s return of its unused
700 MHz licenses does nothing to forward funding of the PWC plan, unless (and it is not
wholly clear) the PWC assumes that the amount paid by Nextel at auction is deemed a
portion of its $850 million voluntary commitment. Additionally, there is nothing within
the record that demonstrates that the 700 MHz licenses offered by Nextel are worth the
amount paid at auction.
In fact, the economic realities of the marketplace, which have driven down the value of
spectrum since Nextel made its purchase, fully belie this claim.
6 Oddly, the PWC plan would have Nextel exercise de facto control via construction and
operation of the 1.9 Ghz facilities, while the agent/trustee exercises de jure control,
thus, there is
5 underlying its plan via the introduction of a new corporate entity, to be created by
Nextel for the purpose of securing that financial commitment. At Page 8 of the Supplement,
the PWC describes this entity and its purpose as follows:
Nextel will secure its ability to fund the Plan retuning costs by setting up a separate
corporate entity(ies), the purpose of which is to hold assets to secure the Nextel funding
obligation. The stock of the entity(ies) will be pledged to an escrow agent/trustee, with
the power to sell the assets and hold the cash proceeds in escrow for the benefit of the
Fund Administrator in the event that Nextel fails to meet its payment obligations under
the Plan. The assets to be held in the corporate entity(ies) will be the 10 MHz of
replacement spectrum in the 1.9 Ghz band for which Nextel will be granted licenses upon
the effective date of the Report and Order. Nextel’s commitment to the funding is further
cemented by its additional, immediate contribution of its 700 MHz band licenses with a
minimum value of $354,711,000.
5
Accordingly, the entity(ies) created to secure Nextel’s, as yet, voluntary pledge would
also create
a corporate veil against imposition of liability directly on Nextel for any violation of
that same
pledge. Absent Nextel’s further action to act as guarantor of the created entities’ debt
to the Fund
Administrator, no other possible conclusion exists.
Additionally, the agency is left in a quandary in deciding the identity of the person
controlling these newly created companies for the purpose of fulfilling the Commission’s
obligation to assure eligibility and accountability from its licensees. Apparently, all of
the stock is pledged to the agent/trustee, which entity is not identified further by the
PWC proposal. The agent/trustee is granted all power to sell the assets and hold the cash
proceeds outside of the entity(ies) control. It appears, therefore, that Nextel is
requesting that any license granted to it for operation at 1.9 Ghz be granted not to
Nextel, but its designee, provided however, de jure control of the stock and assets of
each designee would be placed in the hands of a third entity, which presumably would be
deemed to be the controlling person for the purpose of meeting the obligations of
compliance with the agency rules. Therefore, the licensing problem created by the PWC
proposal is whether the Commission, consistent with its past rules and decisions, can
separate stock ownership from operation of the assets in determining the identity of the
real party in interest controlling a licensee?
6?no control left for the named licensee to exercise.
6
Reflecting momentarily on the earlier discussed difficulties of legal authority for
adoption of the PWC plan and applying necessarily those issues here for the purpose of
clarification, at Page 8 of the Supplement the PWC is asking the Commission to recognize
and base an adoption of rules on private contractual (though not yet formed or fully
articulated) obligations regarding funding of no more than $850 million, which recognition
would move the agency to grant exclusive licenses to (not Nextel, the allegedly
contributing party) but to some unidentified and, as yet, unformed entity(ies), which
company(ies) would not construct or operate facilities under those licenses (Nextel has
reserved this right to itself within the proposal at Footnote 9 of the Supplement) and
would not hold its own stock (the agent/trustee would hold that) and which entity(ies)
presumably could not prevent the sale of its assets, in whole or in part, if its
obligations to a Fund Administrator were not satisfied.

This accurate representation of this entity(ies) begs the question of why it/they would be

created in the first instance. Certainly, Nextel would not be creating companies that
would exist as “licensees” as that term has been defined over many years of Commission
decisions.  Licensees are responsible for their actions in compliance with agency
regulations. These are not. They are merely paper vehicles without form or substance or
duty, except to produce a name for issuance of a Commission authorization. Accordingly,
these proposed entities must be found to be ineligible to hold grant of the 1.9 Ghz
licenses for the purposes proposed. The PWC does not appear to have considered these
issues within its proposals, however, the problem of making the proposal consistent with
Commission rule and precedent certainly rests squarely with the coalition.

The only reasons for the creation of these not-nearly-licensee entities would be to (1)
create a corporate veil to insulate Nextel from any direct liability to the Fund
Administrator arising out those voluntary pledges made within the plan and (2) to allow
those entities to employ the 1.9 Ghz licenses as collateral with funding institutions to
finance payments to the Fund Administrator and/or to build out the systems licensed
thereunder. Neither reason is consistent with the need for great assurance in funding
rebanding and, instead, serve as accommodations to Nextel to place “off book” these debts.
SBT takes no position on Nextel’s chosen financial machinations, except as those
machinations would reduce or eliminate Nextel’s feigned obligations created under the PWC
plan.
Essential Information For Reasoned Decision Making

As the agency is fully aware, it must have gathered all necessary facts for the purpose of

supporting any rule making decision. A failure to gather necessary facts or to have those
facts offered on the record, subjects the decisions of the agency to scrutiny by the
courts to determine whether such decisions are either arbitrary or capricious and, thus,
subject to reversal or remand. The PWC plan fails to provide to the Commission necessary
information for adoption of the plan for any purpose. Given the volumes of information and
charts attached to the PWC plan, the opportunity obviously existed for providing all such
information. Yet, many of the most important legal aspects of the PWC plan are fully
lacking, except in a manner which is so general in nature as to be fully vague and
unreliable.
They are:
C The specific terms of the contract between Nextel and the RCC or Fund?
7 It is far, far easier to get persons to agree to a framework than an actual working
document. The PWC’s failure to produce those necessary working documents calls into
serious
question the validity of its coalition. In sum, there is no evidence that the signatories
know to
what they have tenuously agreed. Administrator, providing that specific pledge language
regarding Nextel’s voluntary
contribution(s) C The specific terms of the contract between each of the 1.9 Ghz licensee
entities and
its agent/trustee

The specific terms of the contracts, if appropriate, between the agent/trustees and the
RCC or Fund Administrator
The specific terms of the contract between Nextel and the 1.9 Ghz licensee entities,
including the manner by which Nextel might redeem assets in exchange for cash or
lines of credit, etc., and the manner by which Nextel would construct and operate
facilities for which it does not possess a license
The formation and operational documents of the Fund Administrator and the RCC
and all other parties charged with any duty under the PWC plan, which parties do not
presently exist
A description of the due process rights of affected licensees during that period under
which every affected licensee would be subject to the decisions of arbitrators,
administrators, boards, and other private entities, presumably without the protections
afforded them under Title 47 and the Commission’s Rules.
The above list is not intended to be exhaustive, but rather illustrative, of the numerous
issues which remain vague, unexplained, or too generally treated in the PWC plan to
provide a basis for its adoption. Only by submission of these documents for review and
comment by the interested members of the public would the agency be able, if at all, to
adopt the PWC plan. In fact, SBT avers that the PWC’s signatories’ support for the plan is
fully meaningless and given in ignorance without this information being included within
the plan.7 It takes less than a little imagination to foresee that many of the signatories
might easily reject specific portions of the above named documents if they were included
within the PWC plan.
SBT further notes that if the documents and agreements outlined above had been presented,
the Commission would quickly find that additional legal problems exist with the PWC plan,
beyond
the well articulated problem with basing a rule making on private contractual documents
and largely
unenforceable obligations. One example of the problems which would be well illustrated is
the
PWC’s proposal that, “the RCC will prepare the necessary license applications” for
affected
licensees. Supplement at 22. These applications would be prepared based on the decisions
of the
RCC in rebanding each NPSPAC Region. Supplement at Ftn. 37.
This proposal violates the rights of persons to choose and employ legal counsel, or to act
pro se, to prepare their applications, which applications stand as a basis of obtaining
legal authority to operate telecommunications facilities in accord with statute, rule and
decisions of the agency. Under the PWC proposal, the applications would be prepared and
submitted without regard to the directions of the licensees, but rather at the?
8 One need only consider the havoc upon procedure and due process arising out of a
“Licensee v RCC dba Licensee” case to appreciate the serious issues raised.
9 See, 47 U.S.C. §§407 & 411, regarding the rights which should be deemed given to
affected licensees in the unlikely event that the plan is adopted.
10 The Supplement at page 35 states that Nextel “may be responsible for reimbursing UTAM
for up to 25 percent of the cost of clearing form microwave licensees from the [UPCS]
spectrum” but fails to explain the basis for this statement, including the percentage of
compensation which the PWC claims Nextel might provide.
8 behest of the RCC in furtherance of its rebanding efforts. Even if those efforts were
laudable, this usurpation of the rights of licensees is unsupportable under law.
Additionally, one cannot help but be struck by the real possibility that an applicant
might be put in a position of petitioning to deny an application with his own name on it.8
Even well meaning administrative efficiency cannot go so far as deny to persons the right
to counsel or the right to control the contents of documents submitted before the agency
in their names.
The Commission must also be made to wonder about the rights of the Fund Administrator or
the RCC to bring suit against Nextel or its newly created entities who would stand as
paper platforms for holding the 1.9 Ghz licenses. Additionally, will there exist any right
in adversely affected licensees to bring suit against Nextel or its designees for failure
to meet any pledge made to the Fund Administrator?9 For those public safety entities which
are under laws forbidding participation in binding arbitration, what manner of hearing
will each be given regarding any relocation dispute resolution before the agency, and what
due process rights will each be afforded?
And, what happens if Nextel fails to meet any of its funding obligations?
There is some reference
to the sale of all or part of the 1.9 Ghz licenses by the agent/trustee to finance the
completion of
rebanding. However, there is nothing in the record which assigns a value to that spectrum,

particularly in view of the PWC’s reference to the cost of clearing that spectrum of its
current
occupants. For that matter, there is nothing in the PWC plan which articulates how Nextel
intends
to compensate the 1.9 Ghz licensees for its “use” of the licenses, either. There is only a

vague
reference to some diligent, cooperative effort to be made in the future following grant of

the licenses
to Nextel.10

For all of its efforts and pretensions of being comprehensive, the PWC plan is rife with
questions, logical holes, unarticulated contract terms, undefined (or violated) rights of
affected licensees, and generalities regarding material issues which require clarity for
the purpose of appreciation by the agency following meaningful comment by the interested
members of the public.
Reasoned decision making requires that these facts, documents and information be supplied
prior to adoption of the PWC plan; and the Administrative Procedures Act (APA) and its
associated decisions clearly show that such information is essential for the Commission’s
consideration of adoption of the PWC plan.
Stated simply, the PWC’s ex parte plan has not been “proposed” by the agency and, thus,
has?9 not been made subject to notice and comment by all interested parties. And if the
PWC plan were proposed, as written, the agency could not expect to receive meaningful
comment due to the gaps in logic, the lack of necessary facts, and the absence of
expressed contractual duties within the Supplement. That the PWC requests that the plan be
immediately adopted pursuant to Report and Order is beyond ambitious. It is procedurally
and administratively fatal to its plans.
Notice and Comment Problems

Ignoring for a moment that the Supplement appears to have been filed without agency
invitation or authority, and is properly labeled “ex parte”, the PWC’s “take it or leave
it” condition regarding the Commission’s acting upon the PWC plan creates an additional
legal hurdle for its adoption. The contents of the PWC plan, as are articulated within the
Supplement, were not borne of notice and comment. Only PWC members were allowed to make
comment and assist in its creation. Accordingly, if the Commission were to adopt the plan
under the condition created unilaterally by its members, the Commission would be accepting
an extralegal method for engaging in notice and comment rule making. In essence, the
Commission would be abdicating to the PWC the work of rule making, allowing an exclusive,
informal association to decide among itself, without contribution or comment from other
non-member, interested parties, the nature of the agency’s rules.
The PWC plan demands the agency’s rubber stamp, or rejection. Accordingly, if the agency
acts
to adopt en toto the PWC Supplement as rule or order, it will be acting in violation of
the APA – yet,
another legal difficulty created by the PWC’s tenuous membership and each member thereof’s

highly conditioned support of the plan.
Flawed and Contradictory Premises
The PWC plan contains, nearly unarticulated, underlying premises which are flawed and
which are glossed over by its emphasis on the general method of rebanding. The first
flawed
premise is that interfering operations by CMRS operations from low-site cellular
facilities are
somehow authorized operations. As fully articulated in its earlier comments within this
proceeding,
SBT avers that this premise is fully without reason or foundation.  The second flawed
premise is that the land mobile community has a duty to both solve Nextel’s and cellular
operators’ interference problems, while simultaneously “making Nextel whole” via support
of Nextel’s demand for the 1.9 Ghz licenses. The PWC never identifies the source of this
duty. Certainly it does not arise under law or relevant, existing contract. Yet, the PWC
plan again and again suggests that the land mobile community and the Commission have such
a duty.
Insofar as the record makes clear, the only source of this duty would be as a portion of a
quid pro quo arrangement with Nextel pursuant to the PWC’s capitulation to Nextel’s demand
for the 1.9 Ghz spectrum. Therefore, no such duty exists. The PWC’s echoing of Nextel’s
refrain does not create such a duty and any reliance upon the existence of such a duty for
the purpose of furthering adoption of the PWC plan is wholly misplaced.
The PWC plan attempts to replace case-by-case remedial action and enforcement of the
agency’s existing rules and the mandates contained within Title 47 that direct the agency
to act to resolve interference between operators, i.e. technical solutions, with
speed-of-light administration?
11 62 FR 41217 (1997)
10 of the proposed rebanding. Only following rebanding would the PWC’s proposed technical
limitations be made effective. As a portion of its “take it or leave it” approach in
offering its proposals, it appears that the PWC is stating to the Commission, “forget all
efforts to cause cellular carriers and Nextel to take those actions necessary to correct
and avoid interference until the completion of rebanding.” This position is disastrous for
systems which are presently receiving interference. The PWC plan provides little or no
guarantee of relief from Nextel’s OOBE until a date situation at least four years in the
future. An essential portion of the agency’s NPRM was a request for solutions to immediate
interference problems, as well as long-term solutions to avoid interference in the future.
The PWC plan does nothing for the former and sacrifices the rights of licensees in
attempting to deliver the latter.
The plan does not describe the type of relocation rights which are to be enjoyed by
affected
licensees. In its earlier rule makings,11 the Commission demanded a seamless transition of

operations. The PWC plan is premised upon, including its cost figures, many if not most of
the relocation to be employed without a seamless transition, subjecting innocent operators
to outages or denial of service to customers. The PWC does not justify its callousness
toward those affected operators or why their rights should be less for the purpose of the
PWC’s proposals as compared to previous relocation efforts.
Finally, the PWC plan is further premised on the members’ collective belief that the $850
million pledged by Nextel would not be better spent by Nextel to provide remedial efforts
to avoid and correct interference problems. No where within the PWC plan is any showing of
what the costs would be if Nextel were to commence a comprehensive effort to reduce and
eliminate its systems’ OOBE which are injurious to analog operations, including public
safety operations. Such actions would be in fulfillment of Nextel’s existing requirements
under law and such activity should be commenced immediately, during the pendency of this
rule making.
Although other commenting parties have addressed the premises discussed above, the PWC
seems unwilling or unable to perform this basic examination of the rights and duties of
affected
licensees, manufacturers, end users, and the agency. In its articulation of its plan, the
PWC either
ignores each of these issues or relies, instead, on factually unsupported conclusions to
gloss over its
failure to treat these issues. But each of these issues is material and proper treatment
of each of
these issues will assure that whatever result occurs from this rule making will be the
result of a
comprehensive exploration of the complex matters raised.
Logical, Legal, And Equitable Problems

The PWC plan calls for Nextel to voluntarily contribute $850 million, over time, into a
fund to be administered by a collection of the PWC members. Presumably, none of that money
would come from NPI or from the cellular licensees. One might, at this juncture, be
tempted to laud Nextel for its extreme generosity in providing that funding, until one
considers that the cost of obtaining that funding is the 10 MHz of spectrum at 1.9 Ghz and
the rebanding of thousands of systems to?
12 Many commenting parties within the proceeding who opposed the PWC plan did not
provide estimates of costs to themselves or the members of whatever organization the
commenter represented.

accommodate Nextel’s interference problems. Which leads one to another issue, the amount
of that
$850 million funding which would go toward rebanding the NPI systems. The PWC plan does
not
make clear the percentage of the funds which would be devoted toward compensating NPI to
assist
one of its creators in reaching its business goals. Further, the PWC plan does not explain

why an
accommodation is being offered to Southern LINC that is not also being offered to NPI. The

presumption is that Southern LINC’s system is not a source of interference to public
safety operators, despite its iDen architecture, whereas NPI’s systems create injurious
OOBE in the same manner as Nextel. But this issue is not explained by the PWC. If, as the
plan suggests, NPI is being compensated out of the $850 million, then a material amount of
the $850 million would be employed to compensate an entity which is one of the sources of
the cited interference.  This dilution of the funding, which is intended to assist analog
operators, to reward an interfering party is simply inappropriate.
However, if the Nextel funding does not include compensation to NPI, additional problems
exist. NPI has not participated in this proceeding and has not, therefore, consented to
its being made
to pay for its own relocation. Adoption of the PWC plan may result in a Commission order
that, in
effect, requires NPI to pay for its own relocation, thus imposing a separate class on NPI
without
legal or logical justification. Therefore, the Commission is provided a “hobson’s choice”
within the
PWC plan. Either the funding proposed has not been shown to be sufficient or, perhaps,
equitably
considered regarding the costs to NPI. Or the plan would impose a costly and unwelcome and

legally unjustified burden on NPI. In either event, the plan fails.
The funding proposal is capped at $850 million and the adverse and potentially disastrous
effects of capping have already been discussed supra. and in earlier comments. However,
this time
the PWC has attempted to show that its newly calculated amount is sufficient to complete
the
rebanding effort by compiling data from not-wholly-identified sources, to arrive at its
figure. The
problem is that the figure produced is fully at odds with the costs expressed by all other

commenting
parties. The following entities have estimated their individual costs of rebanding in
accord with the
PWC plan:12

Intel $4,500,000
Boeing $50,000,000
NYCT $3,000,000
BART $3,250,000
DART $30,000,000
Harris County $40,000,000
Jones Oslow $15,000
White County REMC $61,400
East River $3,600,000?1
3 Previously estimated by commenting parties as costing in excess of $1 billion.
12
Holy Cross $1,564,000
KVREMC $350,000
Washington EMC $230,496
Consumers $55,000,000
NRECA $20,000,000
SCANA $61,000,000
Entergy $100,000,000
AEP $60,000,000
Cinergy $35,000,000
Total: $522,570,896.00
Although the above estimates and the companies represented thereby equal a material amount
of the funding necessary to effect the PWC plan, the list is not exhaustive by any means.
Most notably, the cost of relocating public safety systems is not included,13 nor is the
cost of relocating the NPI channels. However, the individual estimates made by those
commenting parties, with fully informed and unique knowledge regarding those costs
expected to arise in their acting in accord with the PWC plan, cannot be reconciled with
the PWC’s estimates.
Nor can the PWC’s estimates be reconciled with the PWC’s earlier comments which placed the
price tag for relocation at double the estimates given in the Supplement. Finally, the PWC
estimates cannot be reconciled with the estimates provided by Motorola, Inc. in this
proceeding, which set the cost of rebanding at over $2 billion.
In effect, therefore, the PWC’s Supplement stands alone as the only set of comments which
suggests that rebanding can be accomplished at the extremely low cost estimates contained
therein.  And if, assuming arguendo, the PWC estimates, as is fully demonstrated by the
vast majority of commenting parties’ estimates, are incorrect and that the cost is quite
higher than the $850 million funding proposed, adoption of the PWC plan with its funding
cap will result in an incomplete relocation of licensed operations. SBT avers that half a
rebanding is worse than none.  This funding debate aside, the PWC plan makes claims that
are not fully articulated and which require greater fleshing out prior to any hope of
adoption of the plan. For example, at page 13 of the Supplement, the PWC states that
“Nextel will contribute a running average of 2.5 MHz at 800 MHz for accommodating the
relocations of non-cellularized systems and for making additional 800 MHz spectrum
available for public safety communications systems.”
How and to whom will this contribution be made? Who will provide oversight to this
effort?  Under what authority? What is the definition of the term “running average” as
that term is used within this claim?  What enforceable duties will exist to assure
Nextel’s compliance with this claim? Is this again a voluntary effort, which participation
or compliance may be withdrawn at any time? Will this “promise” be reduced to contract?
What is the identity of the contracting parties? And, is the PWC recommending that this
element of its plan be codified or ordered by decree of the Commission?
If so, what is the suggested statutory authority upon which the agency will rely in making
such a order or creating such a rule? Again, the PWC makes general statements and claims
that are not?14 SBT presumes that the participants in the RCC are relying, to some
undefined extent, on that authority arising out of certification as frequency
coordinators. Putting aside the fact that those certifications do not include the duties
proscribed within the PWC plan and place the agency outside the dictates of its statutory
authority for use of frequency coordinating services; the inclusion of Nextel in the
process is clearly without authority. Nextel is not a frequency coordinator and, thus, its
participation in the process is without any statutory authority.
15 See, Supplement at 18
13
supported by facts, rule or law. And against this backdrop of sweeping claims of
solutions, the PWC has avoided the necessary job of dealing with the essential details,
not the least of which is the statutory authority of the agency and the rights of affected
licensees.  At page 15 of the Supplement, the PWC plan recommends that oversight for
execution of its plan be placed in the hands of the RCC, which is to be made up of four
members of the LMCC and Nextel.14 The extra-legal nature of this group is in serious
question under any circumstances given the sweeping authority it is attempting to reserve
to itself under the PWC plan.  However, it does not go beyond notice that the PWC is
mainly comprised of LMCC members (although not all) and Nextel. Where, therefore, will be
the checks and balances to assure fair operations of the RCC?
The majority of the LMCC supports the plan and certainly Nextel’s interests are
accommodated by the intended efforts of the RCC. But what voice on the RCC will speak for
those who are not committed to Nextel’s agenda via participation in the PWC plan? The PWC
offers none. If ever a group required the assistance of balanced decision making via the
inclusion of the “loyal opposition,” the RCC certainly does. This problem is exacerbated
by the operations of the proposed Planning Committees which would have only three members,
including Nextel, one public safety coordinator and one B/ILT coordinator.15 Nextel’s
influence is, thus, increased in the operation of the Planning Committees and likely
assured with the two-to-one majority guaranteed by the inclusion of a public safety
coordinator which must almost certainly be one of the PWC signatories.
In what must be viewed as near irony, the make-up of the Planning Committees is defended
by the PWC in its statement that, “[t]he experience and reputation of the Phase I Planning

Committee members is important to ensure that incumbent licensees have a high degree of
confidence that their interests are being considered in the channel relocation.” Risking
putting to fine a point on this issue, incumbent licensees are looking for persons to
represent, not merely “consider” their interests. And the nature of consideration which
incumbent licensees would likely receive by a group made up of PWC adherents and Nextel is
unlikely to merit a “high degree of confidence.”
The above problem of representation on the PWC’s proposed committees is not immaterial,
given the fact that these committees would not appear to be subject to any appeal,
oversight or even
effective guidance by affected licensees. The nature of their proposed activities, in the
abstract
provided by the PWC, is draconian. No other presumption is possible given the PWC’s
failure to?16 The PWC does not suggest that its unusual arbitration method produce
published
results, available to all incumbent licensees. Since Nextel will be privy to each, it is
reasonable
to provide a similar advantage to each incumbent licensee. However, again the PWC has only

concentrated on expeditious methods of accommodating Nextel without regard to the rights
of affected innocent licensees.
17 The PWC does not fully address the legal effect of the RCC’s “certification” of its
rechannelization plans, however, by the effects which are described, it appears that the
RCC’s actions would be tantamount to licensing, combined with spectrum management duties,
which activities are within the exclusive jurisdiction of the agency. More incredibly, the
PWC would also add a presumption of approval within the public interest to any application
received by the agency (and which is, by PWC command, prepared by the RCC) which
application reflects the certified plan. Supplement at 23. This requirement as a portion
of the PWC plan clearly demonstrates that the PWC wishes the agency to only rubber-stamp
the RCC’s efforts.  18 In fact, the PWC proposes more than two levels of procedural rights
guiding affected licensees’ actions, if one considers the Southern LINC exception, the
unarticulated participation by NPI, the interest in the outcome created by Nextel’s cloned
1.9 Ghz licensees and the separate interest of the Fund Administrator, the Commission,
lower channel non-Nextel EA licensees, etc.
14 include any discussion of the procedures to be employed by the committees, the rights
of the individual committee members to oppose any specific plan, the rights of affected
licensees to present themselves to the committee, the legal effect or nature of the
committees’ decisions, and the authority under which the agency would adopt rules which
rely on the existence and operation of such committees, particularly in view of the
paucity of recognition by the PWC to the due process rights of the agency’s regulatees.
At page 21 of the Supplement, the PWC sets forth the method of resolving disputes between
Nextel and affected licensees, advocating binding arbitration to settle issues regarding
“timing”,
“costs, and “a specific relocation plan.” The nature of the binding arbitration would be,
in the
PWC’s words, “baseball-style,” with the arbitrator choosing among the proposals but not
adding to
or amending the content of the chosen proposal.16 Presumably, the issue of channels to be
employed
for relocation has already been decided by the Planning Committee, which decision is not
subject
to arbitration, but merely administrative fiat and certification by the committee.17
Ignoring for a
moment the problem with public safety entities which are precluded from participating in
binding
arbitration, the PWC has not shown any statutory authority in the agency for ordering this

type of
arbitration procedure. This is particularly troublesome since it restricts the nature of
the proposed
proceeding by reducing the rights of the participants to something less than each might
receive
before the Commission. And since the PWC plan does contemplate that some incumbent
licensees
could avail themselves of a Commission hearing, rather than being subjected to private,
binding
arbitration, the question is begged as to how the PWC might legally and equitably justify
two
different sets of procedural guidelines among equally situated licensees, employing two
different
timetables for completion.18?15

Oddly, the PWC does not even resolve the issue of whether the costs to be determined at
arbitration are to be reimbursed or paid directly by the Fund Administrator, so presumably
the source of the funds initially is also subject to the arbitration procedure advocated
by the PWC. Nor does the PWC provide any definition to its use of the phrase, describing
the type of relocation which incumbent licensees might expect, “designed to prevent
significant disruption of its operations,” Supplement at 21, which disruption avoidance
could easily impact materially the costs of rebanding.
The suggestion is that the PWC is willing, under unidentified circumstances, to allow
incumbent licensees’ systems to be rendered unuseable for some period of time, without
regard to the adverse economic or competitive effect of such occurrences. Yet, within the
same plan the PWC has not advocated that a single Nextel facility ever be rendered dark
for any period of time and one can be reasonably certain that Nextel would protest
vehemently if any commenting party suggested that its cells be rendered incapable of
providing service to customers for, say, a 48-hour period.
Accordingly, the PWC’s guidelines for arbitration necessarily are pre-skewed in favor of
Nextel.
As further evidence of the PWC’s Nextel bias, the PWC states that relocation under Phase I
“must be completed within six months of the Commission approval of the incumbent
licensee’s new channel assignment.” Supplement at 23. The PWC does not state what action
should be taken by the Commission if this deadline is not met, but presumably the burden
for untimely relocation will fall on the incumbent licensee.
This stick to beat forward incumbent licensees to meet the
arbitrary schedule produced by the PWC is indicative of the nature of the entire PWC plan,

which
puts a terrific premium on timeliness, but a very low premium on due process and
fundamental
fairness. Even the agency is not immune to the speed of the express train upon which the
PWC
rebanding would occur. At Footnote 39 of the Supplement, the PWC states, “[a] 60-day
processing
period leaves time for 30-days Public Notice and ample time for Commission consideration
of any
Petitions To Deny on the limited issues involved in each application.” Assuming the normal

pleading schedule for such matters, including mailing time, one is hard pressed to
envision how the PWC’s 60-day time period is workable, without denying additional
procedural and due process rights to interested parties. The PWC plan does not afford the
time for reasoned decision making by the agency following thoughtful consideration of the
pleadings. But, no matter insofar as the PWC plan is concerned, the “limited issues”
presumed by the PWC plan evince an intention to create a fait accompli by leveling a
burden of proof on petitioners that is unlikely to ever be overcome, despite the fact that
creation of such a burden would be without legal or procedural support.
The PWC’s cavalier attitude toward the rights of incumbent licensees may be intended to
produce administrative efficiencies of the highest order, but efficiency alone is not the
goal of the
agency. It must be balanced against the rights of licensees. The scales of justice for the

PWC may
be an obvious annoyance, but the Commission is not empowered to be equally flippant in its

treatment of legitimate operators including steam-rolled public safety entities.  In its
boldest proposal the PWC states that, “[t]o ensure that relocation proceeds as planned,
the Consensus Plan provides for the Commission to cancel the license of any 1-120 channel
block incumbent in NPSPAC regions prioritized 1-14 not executing a relocation agreement
within 13 months of the Report and Order, unless the incumbent is involved in arbitration
[or Commission administrative process]” It seems of little or no concern to the PWC that
this portion of its plan is contrary to the rights of licensees pursuant to 47 U.S.C.
§303(m) which limits the Commission’s?19 At Footnote 50 of the Supplement, the PWC does
recognize that circumstances may exist which preclude timely relocation by public safety
entities, therefore, justifying an extension of time. The PWC does not explain why private
radio licensees are immune to the problems which might be visited upon public safety
entities.
16 ability to suspend or cancel a license without providing to the affected licensee an
opportunity for hearing. It also appears to have escaped the PWC’s notice that this
harshest of events would only be visited upon incumbent licensees, presumably not Nextel,
therefore the PWC is creating punitive incentives for the specific benefit of Nextel. SBT
can contemplate no circumstances under the PWC plan whereby Nextel would also be
threatened by such action, yet, Nextel’s cooperation and the Fund Administrator’s
financing and the vagaries of unforeseen circumstances might all contribute to a delay in
rebanding.19 No matter, the Commission is directed by the PWC to cancel the incumbent
licensee’s authorization immediately following the passage of its arbitrary deadlines.
The Commission is also directed to cancel the license of any incumbent licensee which
refuses to relocate within six months of the grant of its application. Supplement at 24.
The underlying logical and legal problem is that the application is not the applicant’s.
The application is prepared by the RCC pursuant to the directions of a Planning Committee,
neither of which has any procedure for securing the licensee’s approval prior to creating
and submitting the application on the licensee’s behalf. Accordingly, the “application”,
such as it is, is not the action of the licensee, has not been prepared or submitted by
the licensee, has not been approved by the licensee, contains no consent prior or
following its preparation obtained by the licensee, and, thus, is not truly an application
as that term has been defined for decades.
That document, electronic or otherwise, has no legal meaning to the licensee and the
agency cannot subscribe to that document any procedural or substantive treatment that
might be deemed to convert it to an application filed by the licensee.
Accordingly, the creation of a license via grant of the document would be entirely
inappropriate for
the agency. Moreover, any entity acting in reliance upon such a document would be
participating
in an abuse of the Commission’s processes which are created to assure that the claims,
statements,
warranties, and promises given in the application process are those of the entity who
stands as
licensee. In the manner proposed by the PWC, the contents of the application are those of
a
Planning Committee or the RCC, not the person to be bound by the contents thereof.
As clearly shown above, the logical, legal and equitable problems contained within the PWC

plan are insurmountable. It is not a question of one oversight or inadvertent omission
which might be brought into true with law. It is the fact that there is no effort by the
PWC to reconcile any of its plan with the clear dictates of Title 47 and the agency’s
existing rules. Rather, the PWC is engaging in legal fantasy, pretending that the agency
has limitless authority and jurisdiction; and that incumbent licensees are without
statutory or codified rights. SBT recognizes that the PWC agenda has been fully coopted by
Nextel and its business agenda, however, even in its subservient role the PWC should give
a passing consideration to due process and fundamental fairness while it is designing
methods for fast-tracking its bizarre form of justice.
Nextel’s Use Of The 900 MHz Band?17
SBT will not repeat herein its earlier comments regarding Nextel’s highly questionable
title to its 900 MHz licenses, except to note that the PWC plan does not appear concerned
with the manner by which Nextel obtained and maintained its licenses. SBT will leave it to
the Commission to take appropriate actions pursuant to SBT’s earlier comments in assuring
that fidelity to its processes was provided by Nextel in those false claims made to
produce the waiver of Nextel’s construction period.
However, SBT does question the PWC’s statement that “it is crucial that Nextel is able to
operate at 900 MHz during the realignment implementation process.” Supplement at 33. This
sweeping statement is fully unsupported by any facts or data upon which it might rest. A
review of the few 900 MHz systems currently operated by Nextel in the market suggests that
those systems are analog systems, therefore, not capable of being employed as an
augmentation to Nextel’s 800 MHz digital, iDen system. Additionally, the Supplement does
not explain the logistics involved in the continued operation of Nextel’s 900 MHz
facilities, either as currently constructed or following the agency’s issuance of the
proposed order to ratify the PWC plan.
Present customers on Nextel’s systems cannot suddenly receive signals at 900 MHz. Their
handsets cannot receive those signals. So the proposed use of 900 MHz channels for this
purpose is fully illusory. Future users may have available some form of dual-band
equipment from Nextel, but if Nextel is intending to invest in these units and the
associated system including software to implement this strategy, Nextel is advocating
economic waste in the millions of dollars.
In essence,
Nextel proposes that the agency ratify this economic waste by allowing Nextel to maintain
authority
for 900 MHz systems to be employed as a type of short-term, stopgap method; which method
defies
rationality. Finally, the Commission would be supporting Nextel’s sale and distribution of

dual-band
radios to end users who are made to pay the cost of this exotic equipment, even though the

equipment will only be dual-band functional for approximately three years under the PWC
plan.
Therefore, the economic waste is not confined to Nextel, but is shared with its end users.

The Commission must also wonder whether the proposed use of 900 MHz equipment by Nextel,
to temporarily provide additional, digital iDen service, will result in a duplication of
the problems suffered at 800 MHz visited upon existing 900 MHz analog operators. This
potential is not addressed within the PWC plan and there exists no protections against
this eventuality. One would be hard pressed to claim that reasoned decision making would
include trading interference within one band for interference within another.
Greater Financial Assurances Are Required
Despite the PWC’s questionable approach in calculating the cost of its scheme, one is left

to wonder whether Nextel can, in fact, pay the full freight of adoption of the plan. For
if there is serious doubt, the practical effects of this doubt are obvious – the
Commission cannot accept the plan due to a lack of reasonableness. Therefore, the issue
presented is, is Nextel capable of financing the following within five years of any report
and order adopting the plan?
$850,000,000 in relocation costs (assuming this amount is capped); over $1 billion to
construct the 1.9 Ghz systems; several millions to launch and operate a dual-band 800/900
MHz system, to be later abandoned; return of the 700 MHz guardband channels; return of the
900 MHz channels;?18 reduction in its 800 MHz holdings; cost of interest to service any
debt created to accomplish the foregoing; cost of reengineering its systems to comply with
the technical requirements of operation post-rebanding; and tens of millions in
administrative, legal, engineering, site rental, and other associated costs in Nextel’s
(and perhaps NPI’s) performance. Since none of the foregoing investments have been
demonstrated by the PWC to be capable of producing any additional revenue in Nextel, the
question is then, can the estimated $3 billion reasonably be, without risk or speculation,
found in Nextel’s existing or expected coffers for the purpose of providing those
necessary assurances of success that each and every public safety entity commenting in
this rule making has stated is of greatest priority? Of all the illogical or unsupported
premises upon which the PWC plan is built, unquestioning reliance upon Nextel’s present
and future financial condition may be the most dangerous and irresponsible. And the PWC
members have not created any contingency that would guard against a negative outcome.
Instead, they would place the risk of failure squarely upon thousands of affected
licensees, whose business plans and actions and reliance would be fully implemented before
disaster struck.
Conclusion
The PWC has stated to the Commission that its plan, as articulated within the Supplement,
must be accepted by the Commission without material change or the plan must be deemed
unreliably supported by its signatories. However, as clearly shown above, the PWC plan
cannot be accepted “as is”. It is lacking in legal foundation. It is blind to and
inconsistent with the rights of incumbent licensees which rights are protected by federal
statute. It is lacking in necessary specifics regarding the contractual rights and duties
among Nextel, the proposed 1.9 Ghz licensees (and the agent/trustee of the licensees’
shares of stock), the Fund Administrator, the RCC, the Planning Committees, and affected
licensees. It is violative of the Commission’s long established rules and decisions
relevant to licensing and making application to the Commission. It will result in economic
waste.  It is bereft of consideration of due process under law. And, it fails to provide
necessary funding assurances.
In the final analysis, it fails.
Perhaps its greatest failure is that it never moves beyond the voluntary to the
enforceable.
At no juncture has the PWC requested, for examples, that the Commission order Nextel to
pay $850
million dollars; order NPI to pay the cost of its own relocation; order licensees to waive

their
protections granted under 47 U.S.C. §303; order licensees to rely on the Nextel-provided
funding
source until that funding proves inadequate; or order Nextel and its newly created 1.9 Ghz

licensees
to enter into contracts to secure funding. Instead, the PWC plan requests that the
Commission
simply recognize the PWC’s intentions, however, do nothing other than provide to the plan
members
the right to engage in rebanding, spectrum management, licensing, application preparation,

arbitration, collection and distribution of funding, and a host of other functions which
are within the
exclusive jurisdiction of the agency or for which even the agency does not possess the
necessary
statutory authority. The PWC would do all of this, without color of law or even reference
thereto;
and in so doing would give the lowest priority to the rights of affected analog licensees
and the
existing obligation of Nextel to avoid and correct harmful interference. In sum, the PWC
members
are asking the agency to grant it authority that the agency itself does not possess and to

provide to
the plan members the ability to violate the rights of licensees in a manner which could
not occur
within an agency setting. The unreasonableness of this request is, therefore, apparent.?19

For the reasons stated above and within its earlier comments submitted within this
proceeding, SBT respectfully requests that the Commission reject the PWC plan in favor of
directing Nextel and other cellularized operators to take those required steps to avoid
and correct interference caused by the operations of their systems consistent with those
comments filed by SBT in this matter.

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