Subject: [NEXTEL-1] Schwaninger-Re:"Scam Plan"-SBT hereby encourages the Commission to continue to explore technical solutions

From: [email-masked]
Date: Mon, 23 Jun 2003 17:20:29 -0400

Schwaninger & Associates, P.C. Attorneys at Law

June 5, 2003
BY ELECTRONIC FILING
Marlene H. Dortch, Secretary
Federal Communications Commission
445 12th Street, S.W.
Washington, D.C. 20554
Re: WT Docket No. 02-55

Ex Parte Presentation

Dear Ms. Dortch:

In a letter filed within this proceeding from Nextel Communications, Inc.
(“Nextel”) dated
May 16, 2003, Nextel addressed an earlier letter submitted by Motorola, Inc.
regarding possible
solutions for mitigating interference between low-site cellularized operations,
like those employed
by Nextel in its operations, and public safety operations within the 800 MHz band.
This
correspondence is provided, through counsel, by Small Business in
Telecommunications (SBT)
in response to Nextel’s letter and is respectfully provided for the purpose of
assuring that the
Commission is provided a complete and balanced view of the issues addressed within
this matter.
Source and Frequency of Subject Interference: Nextel challenges Motorola’s
premises
regarding the extent of the problem addressed by the rule making and cites
Nextel’s own records
to demonstrate that the level of interference suffered by public safety (and
presumably other 800
MHz licensees) is increasing and provides evidence that nearly three times as many
public safety
entities are experiencing problems than that number suggested by Motorola.
Additionally, Nextel
suggests that the number of reported interference problems will likely increase in
the future at an
increasing rate.

What Nextel does not address, however, is the cause of the interference and the
manner
by which such problems are increasing. The problems of interference to public
safety and other
800 MHz operations are due to Nextel’s continued construction of interfering
sites. In what must
be viewed as an incredible position, Nextel’s letter argues, in essence, that
since it is aware of its
ongoing and continuous violation of Section 301 of the Act and the identity of its
victims
produced thereby, its data is more reliable than Motorola’s. Moreover, Nextel’s
argument is, in
effect, that since the agency has done nothing to curtail Nextel’s continuous
creation of
interference by operation of facilities which place energy on channels and within
bands in which
Nextel holds no authority to operate, Nextel has, with increasing impunity,
continued unlawfully
its practice and, thus, greater numbers and severity of incidents of interference
are occurring. If
this irony is lost on the agency, it is not lost upon the industry.

Nextel’s reference at page 2 of its letter to its operations as “lawful” is not
responsive to
the many comments filed within this proceeding which have demonstrated with great
clarity that
Nextel’s wilful creation of interference via production of out of band emissions
(OOBE) and
intermodulation products (IM) cannot be deemed lawful in accord with any rational
reading of
Title 47 or the Commission’s rules. Motorola’s showing that Nextel could
unilaterally take steps
to mitigate the harm created by its operations evinces further the wilfulness by
which Nextel has
acted to construct facilities without regard to the level of harm which it has or
will cause to
adversely affected operators.

In contrast to Nextel’s desire for accommodation of its recalcitrant business
model by
urging an expensive, unfunded, and unlawful rebanding of the 800 MHz band, other
CMRS
operators are willing to accept their individual responsibility to take all steps
necessary to avoid
and resolve quickly interference arising from their operations. Among the
interfering CMRS
operators, only Nextel has supported rebanding as a means of shifting the burden
of resolution
from the interfering parties to the victims of that same interference.

Boosting Public Safety Signal Strength: Motorola’s attempt to address directly the
issue
of increasing the reliability of public safety operations via creating more robust
systems is an
intelligent approach to one facet of the problem. What is not clear, however, is
the logic or
motivation behind Nextel’s response which accurately points out that the alleged
“consensus” plan
does not address this element of the matter. SBT respectfully points out that the
alleged consensus
plan does not address many aspects of funding, and that the lawfully unsupported
funding
mechanism is directed only at the cost of changing channels among licensees. The
plan provides
little, if any, monies for all required resulting costs that would be imposed upon
public safety
entities if the consensus plan were to be adopted. And, as clearly articulated in
numerous
comments, the funding mechanism proposed would likely be exhausted prior to
completion of
rebanding, with disastrous results.

In what one might view as a logically unusual position, Nextel’s earlier comments
have
touched directly on the issue of signal strength at receivers employed by public
safety. Nextel has
noted the need for more robust public safety systems to assist in avoiding
interference and it faults
insufficient design of public safety systems as one of the reasons for the subject
interference. Yet,
despite Nextel’s admission of the materiality of better integrated system design
that can deliver
greater energy to affected receivers, Nextel’s proposed rebanding method fails
entirely to address
this need. Accordingly, Motorola’s letter recognizes the benefits of boosting
signal strength as
an appropriate step toward resolution. Nextel admits that such activity would be
quite beneficial.
And yet, Nextel continues to note that its proposal would not fund this necessary
activity. In sum,
Nextel is admitting and focusing on a deficiency within its own proposal.

OOBE Filtering Solutions: SBT disagrees with the underlying premise of Nextel’s
further
comment that even if signal strength were boosted, the result would be ineffective
for the purpose
of resolving interference caused by CMRS operations’ OOBE. Nextel suggests that
filtering
solutions should only be imposed on interfering CMRS operations if such solutions
were proven
to be entirely effective under all circumstances. This position is contrary to law
and rule. A
licensee has an obligation under the agency’s existing rules to take reasonable
steps to avoid the
creation of interference. There is no concurrently existing condition on that
obligation that states
that licensees have no such obligation until and unless it is shown beyond a doubt
that such actions
will be 100% effective.

 Nextel’s premise further avoids discussion of the legal status of OOBE.
If such emissions create interference, such emissions are unlawful. Accordingly,
Nextel argues
that it should not be made to employ filtering for the purpose of meeting its
legal obligations
unless it is first proven that such use will, standing alone, bring its operations
into compliance.

This has been well documented within this proceeding, Nextel’s insistence on using
hybrid
combiners has exacerbated unilaterally and unnecessarily the level of OOBE from
its systems.
Commenters, including the Private Wireless Coalition, have noted the adverse
effect that Nextel’s
equipment choice has had in making the radio environment unduly hostile for other
800 MHz
operations. The Commission is well aware of the problems which can arise when
operators
choose unwisely a method of operation that does not take into consideration the
right of licensed
operators to enjoy quietly their authorized use of the radio spectrum, e.g. linear
amplifiers. The
creation of known and unhealthy levels of risk of harmful interference has been
consistently
discouraged by the agency. Yet, Nextel’s letter attempts to turn decades of law
and policy on its
head, stating that Nextel is under no obligation to avoid harmful interference and
its attendant
harm to licensed operations, including public safety, until and unless the
proposed method of
avoidance is shown to be entirely effective to Nextel’s unilateral satisfaction.
Nextel’s comments
skirt close to its donning the mantel of the agency’s legislative/judicial mandate
to decide what
logical and appropriate obligations Nextel will or will not accept in meeting the
problems of its
own making.

Site By Site Resolution: Nextel argues against Motorola’s approach that would
encourage
cooperation among public safety entities and CMRS operators to anticipate and
avoid the creation
of harmful interference in specific locations. In what is an embarrassing lack of
personal
responsibility, Nextel states that Motorola’s approach, “[puts] at risk the lives
and safety of our
nation’s first responders.” Nextel letter at page 2. All evidence provided in this
proceeding,
including that information offered by Nextel, demonstrates clearly that Nextel’s
operation of lowsite
cellularized systems, employing hybrid combiners, and without any coordination
effort with
other licensees, has resulted in numerous incidents of harmful interference.
Nextel’s business
model relies on its uncoordinated use of the radio spectrum, resulting in IM and
OOBE produced
with impunity, which use is (i) increasing, (ii) resulting in additional incidents
of harmful
interference, and (iii) is a known and demonstrated source of risk to lives of
public safety
personnel. Nextel’s assault on Motorola’s proposal is beyond disingenuous. It is
wholly
irresponsible.

Placing aside the irresponsible and unwarranted comment of Nextel discussed above,
Nextel’s premise again attempts to dodge the issue of Nextel’s obligation as a
Commission
licensee. Nextel is obliged to take actions to avoid interference. One would
logically assume that
such actions would include an attempt to predict to the extent reasonably possible
the risk of
interference and to take reasonable steps to avoid the creation of that
interference. Nextel’s
comment suggests that not only is Nextel wholly unwilling to take reasonable steps
to mitigate
interference through proven, reasonable methods such as abandoning its use of
hybrid combiners,
but Nextel is even unwilling to anticipate or to cooperate in discerning where
interference may
arise. Instead, Nextel suggests a continuation of its present methods of
construction and operation
which is, in essence, “turn it on and deal with public safety complaints if and
when they arise.”
This cavalier attitude toward both its obligations as a Commission licensee and
its obligations to
avoid interference to public safety and other operations demonstrates fully the
wilful nature of
Nextel’s actions which are taken without any concern for any injured licensee.

The Extent of the Problem: The record within this proceeding demonstrates that
nearly
all analog operations are at risk of harmful interference from low-site,
cellularized operations by
CMRS licensees and that many have already suffered problems. Insofar as Nextel’s
comments
reiterate this known fact, there can be no argument. However, Nextel’s
self-serving handwringing
does not address the source of the problem. The source of the problem is the
chosen and
unilateral designs of the systems employed by interfering operators. And, in
Nextel’s case, the
refusal to meet statutory and equitable obligations to avoid and correct
interference as it occurs.
Nextel’s proposal is to foist the burden of its obligations onto innocent analog
operators, funding
only a small portion of the cost of rebanding, and thus, enjoying the fruits of
its plan at a steeply
discounted cost.

It cannot escape the agency’s notice that the interference problem has become
rooted in
business models that attempt to address increasing minutes of usage (MOU) of
cellular subscribers
via the construction of inherently dangerous low-site operations. Therefore, in an
effort to capture
subscribers, Nextel has moved toward low-site installations to enhance frequency
reuse and, thus,
system capacity. To capture these revenues in a manner which is specifically
designed to keep
costs low, Nextel employs hybrid combiners that necessarily create greater OOBE.
Thus, the
material cause of the interference problem is corporate greed and indifference. To
attempt to
“spin” greed into patriotism via its references to first responders reduces
Nextel’s position from
one of merely being consistently at odds with Section 301 of the Act, to one of
repugnant
profiteer. By Nextel’s distorted logic, the agency is asked to focus on the
symptom of the problem
and ignore the actual cause, i.e. Nextel’s continuing use of low-site operations
without regard to
the rights of other licensees, including public safety entities, and Nextel’s
disregard for its basic
obligations as a Commission licensee to avoid and resolve interference.

Rebanding: Nextel continues to tout its rebanding proposal throughout the
remainder of
its letter, stating that no other plan can succeed without rebanding the 800 MHz
spectrum. This
claim is belied by logic and the application of statute. Of course the
interference problem can be
resolved without rebanding. However, such resolution requires Nextel to change its
method of
operation without obtaining an unearned windfall pursuant to its upheaval of the
rights and
operations of adversely affected, innocent analog operators. It further requires
Nextel to accept
the obvious conclusion of law: operation of equipment must be restricted to that
spectrum upon
which the operator is authorized to transmit.

All other energy, particularly energy which causes harmful interference to
legitimate licensed operations, is necessarily violative of Nextel’s statutory
obligations and, therefore, requires Nextel to take immediate remedial action that
is not dependent on the resources of or accommodation by non-interfering operators
whose systems are victims of that same interference. 

Demanding such unwarranted accommodation in the form of a rule making does not
result in a waiver or reduction in Nextel’s obligation to take immediate remedial
action and to avoid further the creation of harmful interference via the
production of unauthorized transmissions in violation of Section 301 of the Act.
That Nextel has done little to recognize or move into compliance with its
obligations as a Commission licensee is evinced in its poorly premised arguments
within its letter. 

And absent Nextel demonstrating reasonable efforts toward compliance with its
obligations, the agency will continue to be burdened by Nextel’s unfounded
suppositions regarding its ability to resolve that interference it has, in large
measure, created. Fortunately, Nextel does not serve as the only example of
cellularized 800 MHz operations.

The Commission may look also to the example of Southern Linc which operates a
fully integrated,
wide area, digital 800 MHz system from numerous sites across a large geographic
area. Southern
Linc’s experience and example demonstrates clearly and unambiguously that if
Nextel desired,
its system could be constructed and maintained in a manner that is commercially
viable and fully
compliant with law. All of Nextel’s claims to the contrary within its letter are,
thus, rendered
more than suspect. They are patently false.

SBT will not repeat its well articulated objections to rebanding at 800 MHz, which
objections are shared with the majority of commenting parties. SBT and UTC and
numerous
members of CTIA have each shown that the rebanding proposal forwarded by Nextel is
unworkable, speculative, without recognizable funding, and contrary to law and
equity. SBT has
joined with others to forward the Balanced Approach which provides a concrete,
comprehensive
methodology of interference avoidance and correction and which emphasizes the
existing
obligation of CMRS licensees to resolve interference problems without burdening
the victims of
that interference.

SBT hereby encourages the Commission to continue to explore technical solutions to
the
interference problem created by operations of low-site cellularized systems, which
technical
solutions are within the agency’s statutory mandate while not contrary to the
Commission’s
obligations under the Regulatory Flexibility Act. Accordingly, SBT encourages the
agency to
accept and consider the efforts of commenting parties, like Motorola, which are
attempting to
guide the Commission toward a resolution that is both technically and legally
appropriate and
which does not result in undeserved benefits to a single, recalcitrant licensee.

Very truly yours,
/s/ Robert H. Schwaninger, Jr.
Robert H. Schwaninger, Jr.
General Counsel for
Small Business in Telecommunications
Cc: Robert S. Foosaner

http://gullfoss2.fcc.gov/prod/ecfs/retrieve.cgi?native_or_pdf=pdf&id_document=6514157445
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