**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+---+------------------------------+
| In the Matter of                 | * | WT Docket 02-55              |
|                                  | * |                              |
| Improving Public Safety          | ) | ET Docket No. 00-258         |
| Communications in the 800 MHz    | * |                              |
| Band                             | * | RM-9498                      |
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| Consolidating the 800 and 900    | * | RM-10024                     |
| MHz Industrial/Land              | * |                              |
| Transportation and Business Pool | ) | ET Docket No. 95-18          |
| Channels                         | * |                              |
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| Amendment of Part 2 of the       |   |                              |
| Commission's Rules to Allocate   | * |                              |
| Spectrum Below 3 GHz for Mobile  | * |                              |
| and Fixed Services to Support    | ) |                              |
| the Introduction of New Advanced | * |                              |
| Wireless Services, including     | * |                              |
| Third Generation Wireless        |   |                              |
| Systems                          | * |                              |
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| Petition for Rule Making of the  | ) |                              |
| Wireless Information Networks    | * |                              |
| Forum Concerning the Unlicensed  | * |                              |
| Personal Communications Service  |   |                              |
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| Petition for Rule Making of UT   | * |                              |
| Starcom, Inc., Concerning the    | ) |                              |
| Unlicensed Personal              | * |                              |
| Communications Service           | * |                              |
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| Amendment of Section 2.106 of    | * |                              |
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+----------------------------------+---+------------------------------+

**ORDER**

**Adopted:** May 3, 2006 **Released:** May 8, 2006

By the Commission: Commissioner Tate not participating.

# 

1.  In this Order, we address requests for waiver and extension of time
    submitted by the 800 MHz Transition Administrator (TA) to allow
    Sprint Nextel Corporation (Sprint Nextel) and certain 800 MHz
    Channel 1-120 licensees in Wave 1 of the band reconfiguration
    process additional time to negotiate Frequency Relocation Agreements
    (FRAs).

2.  Pursuant to the *800 MHz Report and Order* and subsequent orders in
    this docket,[^1] the mandatory negotiation period for 800 MHz
    Channel 1-120 licensees in Wave 1 ended on December 26, 2005.[^2]
    The TA and other mediators attempted to resolve any disputes that
    remained at the end of this period within thirty working days after
    the end of the mandatory negotiation period, pursuant to Rule
    90.677(d)(2) and the TA's Alternative Dispute Resolution
    procedures.[^3] The mediation period for the Wave 1 licensees
    concluded on February 8, 2006.

3.  Rule 90.677(d)(2) also provides that the TA will forward the record
    of any unsuccessful mediation to the Chief of the Wireless
    Telecommunications Bureau's Public Safety and Critical
    Infrastructure Division (PSCID) for *de novo* review of issues that
    remain unresolved.[^4] Under the referral procedures established by
    the Bureau, however, the TA may recommend "that the parties to a
    particular case be given additional time to allow further
    negotiation under mediation."[^5]

4.  The TA has filed extension requests in a number of Wave 1 mediation
    cases in which the mediators recommend allowing the parties
    additional time to negotiate a Planning Funding Agreement (PFA), or
    to allow the parties to complete the planning process pursuant to
    the relevant PFA and subsequently negotiate an FRA.

-   City of Reading, Pennsylvania (extension requested until May 22,
    2006 for planning purposes)[^6]

-   City of Boston, Massachusetts (extension requested until September
    12, 2006 for the Boston's Department of Management and Information
    Services, and June 22, 2006 for the Boston Police Department, both
    for planning purposes)[^7]

-   Baltimore County, Maryland (extension requested until July 13, 2006
    for planning purposes)[^8]

-   Illinois Power Company (extension requested until June 7, 2006 for
    planning purposes)[^9]

-   State of Washington (extension requested until October 1, 2006 for
    planning purposes)[^10]

-   Washington County (Oregon) Consolidated Communications Agency
    (extension requested until August 14, 2006 for planning
    purposes)[^11]

-   City of Virginia Beach, Virginia (extension requested until June 30,
    2006 for planning purposes)[^12]

-   Roanoke County, Virginia (extension requested until June 27, 2006
    for planning purposes)[^13]

-   Henrico County, Virginia, Public Schools (extension requested until
    May 26, 2006 for planning purposes )[^14]

-   Chesterfield County, Virginia (extension requested until May 26,
    2006 for planning purposes)[^15]

-   City of Richmond, Virginia (extension requested until July 12, 2006
    for planning purposes)[^16]

-   District of Columbia (extension requested until October 16, 2006 for
    planning purposes)[^17]

-   Fairfax County, Virginia (extension requested until July 1, 2006 for
    planning funding purposes)[^18]

5.  We may grant a request for waiver when (i) the underlying purpose of
    the rule(s) would not be served or would be frustrated by
    application to the instant case, and a grant of the requested waiver
    would be in the public interest; or (ii) in view of the unique or
    unusual circumstances of the case, application of the rule would be
    inequitable, unduly burdensome or contrary to the public interest,
    or the applicant has no reasonable alternative.[^19] In the above
    cases, we conclude that the TA has demonstrated that grant of a
    waiver is warranted under the first prong of the waiver standard,
    subject to certain conditions discussed below. In each case, the
    mediator reports that the parties have been negotiating in good
    faith, and that each party has promptly responded to requests for
    information from the other party and the mediator. Moreover, the
    mediator in each case recommends the requested extension as likely
    to result in a successfully negotiated agreement, or a substantial
    narrowing of the issues. Finally, the Transition Administrator has
    indicated that each of the requested extensions will facilitate
    negotiations and is unlikely to result in unreasonable delay.

6.  Under these circumstances, we conclude that allowing the parties to
    continue negotiations for a reasonable period and deferring the
    referral of unresolved issues to PSCID will not frustrate the
    purpose of our rules, and will further the public interest by
    promoting timely band reconfiguration and avoiding unnecessarily
    burdening the parties and the Commission's resources. [^20] However,
    we note that in a few of the cases in which PFAs have been
    negotiated, the TA has requested particularly lengthy extensions of
    as much as six months for licensees to conduct planning and further
    negotiations. While we believe that allowing reasonable time for
    these efforts is in the public interest, we also believe that it is
    in the public interest to ensure that rebanding continues to move
    forward in an expedited fashion. Therefore, in those cases in which
    we have granted extensions of more than thirty days, we will require
    the TA to report to PSCID every two weeks on the status of planning
    activities and negotiations. In addition, we will limit the
    extensions granted by this order to the extension date requested by
    the TA or July 1, 2006, whichever is earlier. In those cases where
    the TA has requested an extension past July 1, 2006, we note that
    the TA may submit a request for further extension, which explains
    why additional time is required and specifies how much additional
    time is requested. We delegate authority to PSCID to address any
    such request.

7.  We also believe that it is in the public interest to provide a
    similar process for grant of reasonable extensions in future 800 MHz
    mediations. Accordingly, we hereby grant a blanket waiver
    authorizing the TA to extend any mediation for a period not to
    exceed thirty days after the end of the mediation period, provided
    that the mediator confirms that the parties have negotiated in good
    faith and recommends that mediation be extended, and that the TA
    believes that the extension will not cause unreasonable delay to the
    band reconfiguration process. We believe conferring this discretion
    on the TA should provide sufficient flexibility to cover the vast
    majority of cases and is consistent with the broad authority the
    Commission has bestowed on the TA.[^21] The TA shall notify PSCID of
    any extension that it grants pursuant to this waiver. In addition,
    we delegate to the Chief of PSCID the authority, consistent with
    this order, to grant mediation extensions requested by the TA for a
    period not to exceed six months after the end of the mediation
    period, subject to the same bi-weekly reporting requirement
    described above.[^22]

8.  Finally, we issue the following *errata* to clarify the procedures
    that apply to mediation, arbitration, and referral of unresolved
    cases to PSCID, and/or to address certain discrepancies between our
    800 MHz orders and the text of Rule 90.677(d)(1) and 90.677(d)(2) as
    amended by the *800 MHz MO&O*.[^23]

-   The second sentence of paragraph 120 of the *800 MHz MO&O* should
    read: "Although the rule section requires the TA to resolve any
    disputed issues remaining at the end of the mandatory negotiation
    period 'within thirty working days,' it, inconsistently, requires
    that "\[i\]f disputed issues remain **thirty days** after the end of
    the mandatory negotiation period, the Transition Administrator shall
    forward the record to the Chief of the Public Safety and Critical
    Infrastructure Division. (emphasis added)."

-   The last sentence of paragraph 120 of the *800 MHz MO&O* should
    read: "We agree with Entergy and will modify section 90.677(d) of
    our rules to codify the dispute resolution procedures set forth in
    the text of the 800 MHz R&O and to clarify that the Transition
    Administrator must forward to the Chief of the Public Safety and
    Critical Infrastructure Division unresolved disputed issues that
    remain thirty working days after the end of the mandatory
    negotiation period."

-   The third sentence of 47 CFR § 90.677(d)(1) and the sixth sentence
    in paragraph 194 of the *800 MHz R&O* should read "Should issues
    still remain unresolved after mediation or arbitration they shall be
    referred to the Chief of the Public Safety and Critical
    Infrastructure Division of the Wireless Telecommunications Bureau
    within ten days of the Transition Administrator's or other
    mediator's advice, or if arbitration has occurred, within ten days
    of the completion of arbitration."

-   The first sentence of 47 CFR § 90.677(d)(2) should read "If no
    agreement is reached during either the voluntary or mandatory
    negotiating periods, all disputed issues shall be referred to the
    Transition Administrator, or other mediator, who shall attempt to
    resolve them."

9.  Accordingly, IT IS ORDERED that, pursuant to Sections 4(i), 303(f)
    and (r) of the Communications Act of 1934, as amended, 47 U.S.C. §§
    154(i), 303(f) and (r) this *Order* IS HEREBY ADOPTED.

10. IT IS FURTHER ORDERED that the amendments of the Commission's Rules
    as set forth in Appendix A ARE ADOPTED, effective thirty days from
    the date of publication in the Federal Register.

> FEDERAL COMMUNICATIONS COMMISSION
>
> Marlene H. Dortch
>
> Secretary

# Appendix

# Final Rules

**PART 90 -- PRIVATE LAND MOBILE RADIO SERVICES**

1.  The authority citation for Part 90 continues to read as follows:

    **AUTHORITY: 4(i), 11, 303(g), 303(r), and 302(c)(7) of the
    Communications Act of 1934, as amended, 47 U.S.C. 154(i), 161,
    303(g), 303(r), 332(c)(7).**

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11. Paragraph (d) in Section 90.677 is amended to read as follows:

> **§ 90.677 Reconfiguration of the 806-824/851-869 MHz band in order to
> separate high-density cellular systems from non-cellular systems.**

\* \* \* \* \*

\(d\) *Transition Administrator.*

\(1\) The Transition Administrator, or other mediator, shall attempt to
resolve disputes referred to it before the conclusion of the mandatory
negotiation period as described in § 90.677(c) within thirty working
days after the Transition Administrator has received a submission by one
party and a response from the other party. Any party thereafter may seek
expedited non-binding arbitration which must be completed within thirty
days of the Transition Administrator\'s, or other mediator\'s
recommended decision or advice. Should issues still remain unresolved
after mediation or arbitration they shall be referred to the Chief of
the Public Safety and Critical Infrastructure Division of the Wireless
Telecommunications Bureau within ten days of the Transition
Administrator\'s, or other mediator\'s advice, or if arbitration has
occurred, within ten days of the completion of arbitration. When
referring an unresolved matter to the Chief of the Public Safety and
Critical Infrastructure Division, the Transition Administrator shall
forward the entire record on any disputed issues, including such
dispositions thereof that the Transition Administrator has considered.
Upon receipt of such record and advice, the Commission will decide the
disputed issues based on the record submitted. The authority to make
such decisions is delegated to the Chief of the Public Safety and
Critical Infrastructure Division of the Wireless Telecommunications
Bureau who may decide the disputed issue or designate it for an
evidentiary hearing before an Administrative Law Judge. If the Chief of
the Public Safety and Critical Infrastructure Division of the Wireless
Telecommunications Bureau decides an issue, any party to the dispute
wishing to appeal the decision may do so by filing with the Commission,
within ten days of the effective date of the initial decision, a
Petition for *de novo* review; whereupon the matter will be set for an
evidentiary hearing before an Administrative Law Judge. Any disputes
submitted to the Transition Administrator after the conclusion of the
mandatory negotiation period as described in § 90.677(c) shall be
resolved as described in § 90.677(d)(2).

\(2\) If no agreement is reached during either the voluntary or
mandatory negotiating periods, all disputed issues shall be referred to
the Transition Administrator, or other mediator, who shall attempt to
resolve them. If disputed issues remain thirty working days after the
end of the mandatory negotiation period; the Transition Administrator
shall forward the record to the Chief of the Public Safety and Critical
Infrastructure Division, together with advice on how the matter(s) may
be resolved. The Chief of the Public Safety and Critical Infrastructure
Division is hereby delegated the authority to rule on disputed issues,
*de novo*. If the Chief of the Public Safety and Critical Infrastructure
Division of the Wireless Telecommunications Bureau decides an issue, any
party to the dispute wishing to appeal the decision may do so by filing
with the Commission, within ten days of the effective date of the
initial decision, a Petition for *de novo* review; whereupon the matter
will be set for an evidentiary hearing before an Administrative Law
Judge.

\* \* \* \* \*

[^1]: *See* Improving Public Safety Communications in the 800 MHz Band,
    *Report and Order*, WT Docket No. 02-55, 19 FCC Rcd 14969 (2004)
    (*800 MHz Report and Order*).

[^2]: *See* "Wireless Telecommunications Bureau Announces that 800 MHz
    Band Reconfiguration Will Commence June 27, 2005, in the NPSPAC
    Regions Assigned to Wave 1 and Specifies 800 MHz Reconfiguration
    Benchmark Compliance Dates," *Public Notice*, DA 05-1546, released
    May 27, 2005. Under the band reconfiguration plan, each of the
    fifty-five National Public Safety Planning Advisory Committee
    (NPSPAC) regions is assigned to one of four "prioritization waves"
    with staggered starting dates. *See* "Wireless Telecommunications
    Bureau Approves the Basic Reconfiguration Schedule Put Forth in the
    Transition Administrator's 800 MHz Regional Prioritization Plan,"
    *Public Notice*, DA 05-619, released March 11, 2005. The three-month
    voluntary negotiation period for Channel 1-120 licensees in Wave 1
    began on June 27, 2005 and the three-month mandatory negotiation
    period for these licensees began on September 27, 2005.

[^3]: 47 CFR § 90.677(d)(2). For the TA's ADR procedures, *see*
    http://800ta.org/content/PDF/policy/ADRPlan.pdf.

[^4]: 47 CFR § 90.677(d)(2). Although the rule does not establish a
    specific deadline after the end of mediation for the TA to forward
    the record of unresolved cases, we clarify that the TA must do so
    within ten days of the end of the mediation period unless the waiver
    standard established by this order applies. This is consistent with
    the *de novo* review procedures recently announced by the Wireless
    Telecommunications Bureau. *See* *Public Notice*, "Wireless
    Telecommunications Bureau Announces Procedures for *De Novo* Review
    in the 800 MHz Public Safety Proceeding," WT Docket No. 02-55, DA
    06-224, at 2 (Jan. 31, 2006) (*De Novo Review PN*).

[^5]: *De Novo Review PN* at 2.

[^6]: City of Reading, Pennsylvania; City of Boston, Massachusetts;
    County of Baltimore, Maryland; Ameren Services Co.; State of
    Washington; and Washington County (Oregon) Consolidated
    Communications Agency, Consolidated Recommended Resolution and
    Request for Waiver, filed February 13, 2006.

[^7]: *Id.* at 5*.*

[^8]: *Id.*

[^9]: Illinois Power Company, Recommended Resolution and Request for
    Waiver, filed February 21, 2006. This supersedes an earlier request
    for extension by Ameren Services Co., which owns Illinois Power**.**

[^10]: City of Reading, Pennsylvania; City of Boston, Massachusetts;
    County of Baltimore, Maryland; Ameren Services Co.; State of
    Washington; and Washington County (Oregon) Consolidated
    Communications Agency, Consolidated Recommended Resolution and
    Request for Waiver, filed February 13, 2006 at 6*.*

[^11]: Washington County Consolidated Communications Agency (WCCA),
    Consolidated Second Recommended Resolution and Renewed Request for
    Waiver, filed May 5, 2006. This supersedes an earlier request for
    extension until May 5, 2006.

[^12]: City of Virginia Beach, Virginia, Recommended Resolution and
    Request for Waiver, filed February 21, 2006*.*

[^13]: County of Roanoke, Virginia, Recommended Resolution and Request
    for Waiver, filed February 27, 2006*.*

[^14]: Henrico County Public Schools, VA, Third Recommended Resolution
    and Renewed Request for Waiver, filed April 14, 2006.

[^15]: County of Chesterfield, VA, Third Recommended Resolution and
    Renewed Request for Waiver, filed April 14, 2006.

[^16]: City of Richmond, VA, Third Recommended Resolution and Renewed
    Request for Waiver, filed April 14, 2006.

[^17]: District of Columbia, Second Recommended Resolution and Renewed
    Request for Waiver, filed March 10, 2006.

[^18]: Fairfax County, VA, Fourth Recommended Resolution and Renewed
    Request for Waiver, filed May 4, 2006. This supersedes earlier
    extension requests.

[^19]: 47 C.F.R. § 1.925(b)(3).

[^20]: The TA has also submitted some extension requests that have
    become moot because the parties have subsequently reached agreement
    or the record has been forwarded to PSCID for *de novo* review and
    resolution. *See* State of Maryland and County of Montgomery,
    Maryland, Consolidated Recommended Resolution and Request for
    Waiver, filed February 13, 2006; City of Chicago, Illinois,
    Recommended Resolution and Request for Waiver, filed February 21,
    2006; City of Chicago, Illinois, Second Recommended Resolution and
    Request for Waiver, filed February 21, 2006; PECO Energy Company,
    State of Hawaii; State of Connecticut, and County of DuPage,
    Illinois, Consolidated Recommended Resolution and Request for
    Waiver, filed February 13, 2006 (The TA filed a subsequent
    Recommended Resolution and Request for Waiver in the case involving
    the State of Connecticut); County of Rock, Wisconsin, City of New
    Haven, Connecticut, City of Waterbury, Connecticut, City of
    Bethlehem, Pennsylvania, Consolidated Recommended Resolution and
    Request for Waiver, filed February 13, 2006 (only with regard to
    County of Rock, City of Bethlehem and the City of Waterbury); City
    of Worcester, Massachusetts, Recommended Resolution and Request for
    Waiver, filed February 21, 2006; Illinois Cooperative Association,
    Inc., Recommended Resolution and Request for Waiver, filed February
    21, 2006; Fresno Mobile Radio, Inc., Second Recommended Resolution
    and Renewed Request for Waiver, filed March 3, 2006; State of
    Maryland Recommended Resolution and Request for Waiver, filed
    February 23, 2006; State of Massachusetts, Recommended Resolution
    and Request for Waiver, filed February 21, 2006; County of Atlantic,
    New Jersey, Recommended Resolution and Request for Waiver, filed
    February 21, 2006; and State of Connecticut, Recommended Resolution
    and Request for Waiver, filed February 23, 2006. We dismiss these
    requests as moot.

[^21]: For example, the Commission stated that the overriding obligation
    of the TA is to facilitate timely band reconfiguration in a manner
    that is equitable to all concerned. In this regard, the Commission
    noted that the TA had the discretion to change the band
    reconfiguration schedule to meet unanticipated needs. Also, the TA's
    portfolio includes taking "the most effective actions, in the
    short-term and long-term, to promote robust and reliable public
    safety communications in the 800 MHz band to ensure the safety of
    life and property." *See Supplemental Order*, 19 FCC Rcd 25152.

[^22]: In the *800 MHz Report and Order*, the Commission stated that it
    would impose a freeze on 800 MHz applications in a region commencing
    from the date of the Public Notice announcing the date when
    voluntary negotiation of relocation agreements must be concluded
    until thirty days after the completion of mandatory negotiations for
    that region. See *800 MHz Report and Order* ¶ 204. This Order does
    not affect the duration of that filing freeze for Wave 1 or any
    other wave.

[^23]: *See* Improving Public Safety Communications in the 800 MHz Band,
    *Memorandum Opinion and Order*, WT Docket No. 02-55, 20 FCC Rcd
    16015 (2005) (*800 MHz MO&O*) ¶ 120.