Subject: [NEXTEL-1] Lawyer rebuts FCC stance on 800 MHz enforcement- "Consensus Plan" - Illegal

From: NEXTEL-1
Date: Fri, 04 Jun 2004 21:18:46 -0400

MRT's Wavelengths

By Glenn Bischoff
June 4, 2004 

Lawyer rebuts FCC stance on 800 MHz enforcement 

Last week in this space, I shared the perspective of an FCC source as to
why the commission has chosen not to institute an enforcement proceeding
against Nextel Communications, which is blamed for most of the
interference that disrupts public-safety communications in the 800 MHz
band across much of the nation. To summarize, my source told me there is
a general feeling within the commission that the FCC has the necessary
legal standing to force Nextel to fix the problem, but that a negotiated
settlement which would satisfy all parties and keep the matter out of
the courts -- no small goal -- is preferred. 

Several readers responded to the column. Some bought into the FCC's
rationale, others thought it was nonsense. This week, in the interest of
fair play and healthy debate, I have decided to share one of the more
thoughtful and well reasoned rebuttals, written by Robert Schwaninger, a
Washington, D.C.-based attorney with long-standing ties to the land
mobile radio industry. His thoughts are as follows: 

"The FCC's comment that Nextel is operating within the scope of its
licenses is analogous to a person with a properly operating handgun and
gun permit being authorized to discharge the weapon in a crowd. Simply
put, Nextel's licenses do not authorize the transmission of
electromagnetic energy outside of the authorized bandwidth defined by
those licenses. Such transmissions are, by definition, contrary to the
dictates of Section 301 of the Communications Act of 1934. In short,
Nextel has constructed a system that creates harmful interference with
impunity, and the results were known prior to implementation. 

"The history of Nextel, now Fleet Call, is well known to the industry.
The FCC granted a waiver to Fleet Call in 1991 that opened the door to
integrated digital operations. To obtain the waiver, Fleet Call
expressly stated to the FCC that its system would not cause interference
to analog operations. This pledge, upon which Nextel was built, has been
breached. 

"If no one at the FCC envisioned what would happen if the agency allowed
digital operations in adjacent channels at 800 MHz, it was because they
did not read the comments opposing Fleet Call's waiver request. More
than one commenting party predicted the interference that would result.
For the agency to claim surprise or ignorance is simply not supported by
the record. 

"As to interleaving of channels being the problem, the FCC is again
ignoring the dictates of its own rules. Licensees are allowed to operate
on a channel at a particular location, provided they comply with the
FCC's rules for operation and protection of existing licensees. Thus,
when Nextel accepted the interleaved channels, decisions concerning
whether and how to use those channels were wholly Nextel's. If those
decisions are contrary to rule or law, the responsibility for the errant
decision(s) must fall solely on the licensee, Nextel. 

"Of shocking silliness is the comment that an enforcement action
requires a formal complaint to be filed. This is ludicrous. The agency
has all authority to employ its enforcement authority on its own motion.
The FCC hands out fines all the time for persons' failure to properly
paint and light radio towers. None of these arose out of a formal
complaint. Pirate broadcasters have gone to jail without a formal
complaint being filed. 

"There are several reasons why public safety has failed to file a formal
complaint: public-safety entities have received questionable advice from
their representatives; Nextel has given the appearance of cooperation
with public-safety entities; formal complaint proceedings are expensive;
and public safety stands to gain additional spectrum at 800 MHz. Public
safety receiving additional spectrum always has been the driving force
behind APCO's support of the Consensus Plan. Ask Bob Gurss if he would
support the plan without it. He wouldn't. But this yardstick for
acceptability has always diverted attention from the primary goal of the
proceeding, which is to resolve interference. No entity should come out
ahead on the deal, including public safety, given the risk to
business/industrial analog operators borne by adoption of the Consensus
Plan. 

"While Nextel, the FCC, and APCO are talking about interoperability,
first responders, God, motherhood, and public service, the opposition is
talking about law, precedent, and statutory authority. Which argument is
most likely to win in a court of law? The courts have one litmus test
--- is it legal? The Consensus Plan isn't and neither is Nextel's method
of operation." 

Robert Schwaninger is president of Schwaninger & Associates, a
Washington D.C. law firm that is general counsel to Small Business in
Telecommunications, an association representing potentially affected 800
MHz analog operators and a commenting party in the 800 MHz proceeding. 
He can be reached at rschwaninger@ sa-lawyers.net

http://enews.primediabusiness.com/enews/mobileradiotech/mrt_bulletin/2004_june_4_642004/view.html

------------------------ Yahoo! Groups Sponsor --------------------~--> 
Yahoo! Domains - Claim yours for only $14.70
http://us.click.yahoo.com/Z1wmxD/DREIAA/yQLSAA/61FxlB/TM
--------------------------------------------------------------------~-> 

-- 
    "NEXTEL-1 IT'S NOT JUST NEXTEL"
  Note The New address 
Subscribe to Nextel-1: http://www.groups.yahoo.com/subscribe/NEXTEL-1

  "NEXTEL2 FOR iDEN SOFTWARE DEVELOPERS"
Subscribe to Nextel2: http://www.groups.yahoo.com/subscribe/NEXTEL2

  "WIRELESS FORUM HOMELAND SECURITY GROUP"
     The Complete Resource for Wireless Homeland Security.
Subscribe to WFHSG:  http://www.groups.yahoo.com/subscribe/WFHSG

Yahoo! Groups Links

<*> To visit your group on the web, go to:
     http://groups.yahoo.com/group/NEXTEL-1/

<*> To unsubscribe from this group, send an email to:
     [email-masked]

<*> Your use of Yahoo! Groups is subject to:
     http://docs.yahoo.com/info/terms/