Subject: [NEXTEL-1] 800 MHz, Law and Order

From: [email-masked]
Date: Mon, 12 Apr 2004 13:37:51 -0400

-------- Original Message --------
From: Robert Schwaninger <[email-masked]>
Subject: 800 MHz, Law and Order

The recent suggestions posted by members are very interesting in
approaching this problem, however, many, like those of numerous
commenting parties, are simply outside the dictates of the law.  This
was a problem I wrestled with when trying to compose comments and
needless to say the suggestions which I supported could be found wanting
as compared to a "perfect fix."  The legal problems I ran into are as
follows:

1)                  The FCC does not have the legal authority to collect
monies from fines or auctions and do anything with them other than
deposit them in the U.S. Treasury.  So, all suggestions regarding the
creation of a fund via auction of the 1.9 GHz spectrum to finance
relocation, interference reduction, etc., are without statutory
authority granted by Congress to the agency.

2)                  The FCC does not have the statutory authority to
recognize private contractual obligations for the purpose of creation of
rules.  Thus, the suggestion that a binding agreement might be formed
between Nextel and a third party entity, the terms of which would direct
Nextel to pay monies, is similarly unworkable.  The agency does not have
the ability to enforce the agreement and has no standing to demand
specific performance or injunctive relief to assure that such an
agreement would guarantee performance of the parties.

3)                  The FCC does have the authority to seek and enforce
rebanding of the spectrum and to direct the rebanding parties to pay the
cost of rebanding if such actions are shown, employing a strict scrutiny
standard, to be the most efficient and proper means of serving the
public interest.  However, such actions would require the FCC to find
that both, non-interfering public safety and private entities who are
forced to reband are treated in substantially similar manners.  Given
the dictates of the Regulatory Flexibility Act and the effects on
non-interfering analog operators, I suggest that the greatest protection
would need to be afforded small businesses and public safety entities.

4)                  The FCC can order that licensees relocate provided
that the parties doing the relocation are fully compensated by the
entity seeking an advantage via relocation.  Interestingly, the proposed
rebanding of
800 MHz is, according to the record, beneficial to Nextel and public
safety, therefore, raising the curious question of whether public safety
should participate in funding the effort.

5)                  The FCC can create stricter technical guidelines for
operation.  This is the suggestion of persons seeking technical
resolution of the problem which has been criticized heavily by Nextel,
however, it is ironically the one solution that is directly within the
FCC's "wheelhouse" of statutory authority.

6)                  The FCC does not have authority to require that
equipment manufacturers bear a portion of any costs arising out of
fixing the problem, however, the FCC does have the authority to alter
the means by
which future equipment is manufactured to reduce the problem in the
future.

7)                  The FCC does have the authority to direct an
interfering operator, whose system creates harmful interference either
from operations outside of its authority or authorized bandwidth, to
take all steps necessary to relieve the interference, including
cessation of operations until such time as the problem is solved.

8)                  The FCC does not have to auction the 1.9 GHz
spectrum, as Section 309(j) of the Act provides for other means of
accomplishing licensing.  Mind you, there are members of Congress who
might see a "give away" as tantamount to mutiny.

Given the foregoing, coming up with a solution isn't easy and is
unlikely to find any consensus among all affected parties.  That's the
problem.  There is what the agency might do if its authority were not
limited by Congress; and what it can do given the limitations which
exist.

One additional thought, some commenters suggest that Nextel's prior
existence on a channel would negate the ability of a public safety
entity to demand that Nextel "fix" the problem since Nextel was the
"first party in."
That's not exactly true.  If the interference suffered arises out of
Nextel's creation of electromagnetic energy outside its authorized
bandwidth, i.e. intermodulation or spurious emissions, then Nextel's
operations are illegal as a matter of law and are subject to demands for
remedial action by the FCC.  Again, this is clearly within the FCC's
authority.

What I have never clearly understood, outside of my most jaded thoughts,
is why the FCC does not create for itself the greatest avenue toward
claiming the greatest amount of authority for the purpose of resolving
the problem --- a statement that the operations of interfering cellular
operators is illegal and outside of their respective authority.  By
properly focusing on the problem as an enforcement issue, rather than an
allocation issue, the FCC steps into its realm of greatest authority and
discretion.  Presently, it's as though the agency is attempting to
resolve the problem with one arm tied behind its back.
If, for example, the FCC stated, "all interfering out of band emissions
produced by cellular operators are hereby deemed to be violations of
those interfering licensees' duties under the Act and Rules" the FCC
could order that such actions cease immediately and that all injury
suffered by public safety entities, et al. are subject to compensation
in accord with Section 208 of the Act.  Once this pronouncement is made,
the FCC would not have to worry about interleaved channels exacerbating
the problem.  Instead, Nextel could be made to worry about it and the
liability arising out of its continued use of that spectrum.  So what if
Nextel cannot design its system to employ these channels for
cellularized use in a manner that avoids harmful interference.  No one,
including the agency, ever guaranteed that ability.  Why should this
rule making suffer from an underlying false premise that Nextel's system
design is a matter of right?

The result is, then, that Nextel can keep every single one of its
channels, would not require additional spectrum at 1.9 GHz and no forced
rebanding would be required.  Whether Nextel operates on the channels is
left to Nextel's own discretion and its ability to avoid interference.
All future rebanding would be employed using a "market based" approach,
i.e. Nextel can negotiate with existing users to swap channels or buy
spectrum, thus relieving the interleaving problem and making the
spectrum Nextel ultimately obtains more useful for its cellularized
operations.  The FCC could lift restrictions based on allocations and
allow all licensees to barter freely and voluntarily.

Oh yes, and the remedial actions would be immediate, not stretched over
years.

Done......

Robert Schwaninger

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