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

From: Marcel <[email-masked]>
Date: Tue, 14 Jan 2003 22:28:59 -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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