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

From: [email-masked]
Date: Mon, 12 Apr 2004 13:12:33 -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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