800 MHz Rebanding

On August 6, 2004, the FCC issued Report and Order FCC 04-168 that modified its rules governing the 800 MHz band to minimize harmful interference to public safety communications systems.  On December 22, 2004, the FCC issued a Supplemental Order and Order on Reconsideration FCC 04-294.  Pursuant to these Orders, certain licenses of 800 MHz channels used in public safety or other systems must relinquish their existing channels and relocate their systems to other licensed channels (“Replacement Channels”).  Also pursuant to the Orders, Sprint/Nextel (hereinafter “Nextel”) must relinquish some of its existing channels and must provide and pay relocation funds (“Relocation Funds”) to enable affected licensees to relocate their systems onto Replacement Channels and reconfigure their systems so they are “comparable facilities.”  Relocation funds are to be used to pay for the licensee’s rebanding costs, including reasonable transaction costs.

The FCC has appointed a Transition Administrator who is subject to the review and oversight of the FCC, to ensure that the rebanding initiative proceeds on schedule and in a planned and coordinated manner.  On April 21, 2005, the Transition Administrator published a “Reconfiguration Handbook” and a “Quick Reference Guide”, both of which describe the administrative proceedings the Transition Administrator will follow to administer the reconfiguration process, including Nextel’s responsibility to pay the Relocation Funds.  In the Reconfiguration Handbook (at page 19), the two major phases to accomplish the reconfiguration are described as the “Reconfiguration Planning and Negotiation Phase” and the “Reconfiguration Implementation Phase.”

Moss & Barnett has served as outside legal counsel to several Phase 1 communities regarding 800 MHz rebanding.  In one particular case we represented the City of Virginia Beach, Virginia in their efforts to secure a Planning Funding Agreement with Nextel.  Virginia Beach and Nextel were unable to reach agreement through negotiations and were forced to achieve ultimate agreement through mediation facilitated by the Transition Administrator.  The issue was further complicated by a regional funding component required by the city to ensure that Nextel’s reconfiguration efforts in neighboring jurisdictions did not compromise the city’s public safety capabilities.

Achieving an acceptable Planning Funding Agreement with Nextel also requires continual negotiation with the city’s technical contractors both with respect to the scope of work and the compensation to be provided by Nextel.  Once a Planning Funding Agreement is in place the parties must then direct their attention to acceptable language for a Frequency Reconfiguration Agreement.  While the Transition Administrator has provided a sample Frequency Reconfiguration Agreement, amendments are routine and the supporting exhibits and scope of work require significant negotiation between the parties.

The newsletter below addresses additional 800 MHz rebanding issues.