**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | *  | WT Docket No. 02-55          |
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| State of Nevada                  | ** |                              |
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| and Sprint Nextel                | *  |                              |
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| Mediation No. TAM-12229          | ** |                              |
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| University and Community College | *  |                              |
| System of Nevada                 | *) |                              |
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| and Sprint Nextel                |    |                              |
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| Mediation No. TAM-12328          | *) |                              |
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**MEMORANDUM OPINION AND ORDER**

**Adopted: September 6, 2007 Released: September 7, 2007**

By the Associate Chief, Public Safety and Homeland Security Bureau:

# Introduction

1.  In this *Memorandum Opinion and Order*, we address cases referred to
    us for *de novo* review from Wave 1, Stage 2 mediation by the 800
    MHz Transition Administrator (TA) and involving disputes between the
    State of Nevada and the University and Community College System of
    Nevada (UCCSN) (collectively "Nevada") and Sprint Nextel Corporation
    (Sprint). There are multiple issues in dispute that we address
    below, largely relating to Nevada's proposed use of internal
    personnel and two consultants, Galena Group International (Galena)
    and BH Consulting (BHC), to perform rebanding tasks.[^1] As a
    threshold matter, we deny claims that the parties have acted in bad
    faith, but we admonish both Sprint and Nevada to focus their efforts
    on moving forward with rebanding rather than continued litigation of
    these disputes. Turning to the disputed issues, we approve the
    majority of Nevada's claims, but we require Nevada to provide
    further justification of certain costs that appear to be
    inconsistent with similar costs that were requested and approved in
    our recent *Washoe County* order. [^2]

# background

2.  Nevada's 800 MHz facilities are part of the Nevada Shared Radio
    System (NSRS), a 79-site statewide system operated by the Nevada
    Department of Transportation (NDOT).[^3] The 800 MHz portion of NSRS
    operates on 21 frequencies at 9 sites.[^4] NSRS is used by 22
    separate entities with a total of 6,457 mobile and portable radio
    units. NSRS is also interoperable with the Washoe County Regional
    Communication System (Washoe).[^5] NDOT has been authorized to
    negotiate a Frequency Relocation Agreement (FRA) with Sprint on
    behalf of UCCSN for the reconfiguration of its single call sign
    WPWK236.[^6]

3.  In May 2006, Nevada provided Sprint with a draft reconfiguration
    plan without a cost estimate. On October 11, 2006, Nevada provided
    Sprint an updated reconfiguration plan with a detailed statement of
    work and a cost estimate totaling \$815,460.88.[^7] Nevada has
    included the costs for reconfiguring call sign WWK236 in its
    proposal.[^8] The parties were unable to conclude an FRA through
    negotiation and mediation, and on January 29, 2007, the TA mediator
    forwarded the record and his Recommended Resolution to the Public
    Safety and Homeland Security Bureau (PSHSB) for *de novo* review and
    resolution. On February 12, 2007, Sprint and Nevada each filed a
    Statement of Position in this matter.[^9]

# Discussion

## Standard of Review

4.  As an initial matter, the Commission's orders in this docket assign
    to Nevada the burden of proving that the funding it has requested is
    reasonable, prudent, and the "minimum necessary to provide
    facilities comparable to those presently in use."[^10] We note that
    the Commission has recently clarified this standard for purposes of
    determining whether licensee relocation costs are the "minimum
    necessary" to accomplish rebanding, and therefore must be paid by
    Sprint.[^11] In the *Rebanding Cost Clarification Order*, the
    Commission stated that the term "minimum necessary" cost does not
    mean the absolute lowest cost under any circumstances, but the
    "minimum cost necessary to accomplish rebanding in a reasonable,
    prudent, and timely manner."[^12] This standard takes into account
    not just cost but all of the objectives of the proceeding, including
    timely and efficient completion of the rebanding process, minimizing
    the burden rebanding imposes on public safety licensees, and
    facilitating a seamless transition that preserves public safety's
    ability to operate during the transition.[^13]

5.  We also note that the issues in dispute in this case are in many
    respects similar to those we recently addressed in our *Washoe
    County* order.[^14] As noted above, the Washoe and Nevada systems
    are interoperable with one another. The Nevada system is larger than
    Washoe in geographic scope, but the two systems are similar in size
    and complexity: the Nevada system has 6457 radios and nine sites to
    be reconfigured, while Washoe has 4239 radios and ten sites to be
    reconfigured. Finally, Galena, the primary consultant for the Nevada
    system, is also the primary rebanding consultant in Washoe, and the
    apportionment of tasks between internal staff and Galena appears to
    be similar in both cases.[^15] Thus, in our review of disputed
    issues, we rely on our analysis in *Washoe* as well as the record
    before us in this case.

## Good Faith

6.  *Nevada Position.* Nevada contends that Sprint has failed to
    negotiate in good faith throughout this mediation.[^16] Nevada
    asserts that Sprint's questioning of multiple line items in the
    Nevada proposal is unreasonable and has prolonged the process and
    increased Nevada's costs.[^17] Nevada also contends that the
    mediator's statements in the RR support a finding that Sprint failed
    to negotiate in good faith.[^18]

7.  *Sprint Position.* Sprint asserts that its questioning of Nevada's
    proposal was reasonable and consistent with its obligation to ensure
    that Nevada's costs met the "minimum necessary" cost standard.[^19]
    Sprint also contends that Nevada ignored Commission precedent with
    regard to its burden of proof and unreasonably refused to respond to
    requests for further information.[^20] Sprint asserts that the
    mediator erred in supporting Nevada's objections to providing
    further information and was unfairly biased in Nevada's favor in the
    mediation.[^21]

8.  *Mediator Recommendation*. The mediator strongly criticized
    Sprint\'s conduct in the mediation, although it did not expressly
    find that Sprint acted in bad faith.[^22]

9.  *Discussion.* We do not find that either party has acted in bad
    faith, but we note that this proceeding has been unusually
    contentious and has resulted in a large number of disputed issues
    being referred to the Bureau. Sprint has stated that prior to the
    issuance of the *Rebanding Cost Clarification Order*, it felt
    compelled in negotiations "to challenge virtually every dollar spent
    on band reconfiguration to assure compliance with 'minimum
    cost.'"[^23] In this particular case, Sprint's narrow interpretation
    of the standard caused it to respond to Nevada's detailed proposal
    and timeline by challenging or requesting additional information on
    numerous line items. In response, Nevada objected to Sprint's
    requests for more information and questioned Sprint's motives in the
    negotiations. The result was that both sides resorted to further
    litigation rather than seeking to resolve their disputes, and the
    mediator became increasingly frustrated at the parties' lack of
    progress.

10. Based on the record as a whole, we believe that Sprint has not
    "crossed the line" and acted in bad faith, but that it was
    overzealous in challenging "virtually every dollar" in the Nevada
    proposal. We also reject Sprint's contention that Nevada responded
    unreasonably. While Nevada could arguably have done more to seek a
    negotiated solution, we find that the overall level of detail that
    it provided in its proposal was sufficient to meet its burden of
    proof on most issues. Finally, we do not agree with Sprint's
    assertion of unfair bias by the mediator. In any event, because our
    review is *de novo*, the mediator's findings are advisory only and
    are not afforded deference in this review.

11. In reaching the above conclusions, we underscore that it is Nevada
    and Sprint's future behavior---not their past behavior---that is now
    most critical to successfully completing the rebanding of the Nevada
    system. It is our expectation that---as the Commission admonished in
    the *Rebanding Cost Clarification Order* ---"our action today will
    spur the parties to reorient their approach to this process." [^24]
    The core goal of the rebanding proceeding is not to minimize costs,
    but to complete rebanding in a "reasonable, prudent, and timely
    manner," so that the interference problem that threatens 800 MHz
    public safety systems "is resolved as quickly and as comprehensively
    as possible."[^25] Going forward, we expect Sprint and Nevada to
    "keep their eyes on that prize...as they work through the details of
    this complex process."[^26]

## Negotiation Costs

### Licensee and Consultant Negotiation Costs

12. *Nevada Position.* Nevada requests compensation for 400 hours spent
    by internal staff, Galena, and BHC during negotiations responding to
    questions and requests from Sprint for supporting
    documentation.[^27] Nevada originally estimated that 176 hours would
    be sufficient to cover these tasks but states that the increase is
    reflective of the actual hours incurred.[^28]

13. *Sprint Position.* Sprint contends that the increased request is not
    justified because Nevada utilized a six-person negotiating team
    (three state employees, two Galena representatives, and one BHC
    representative) when a three-person team would have sufficed.[^29]

14. *Mediator Recommendation*. The mediator recommends the Commission
    allow at least 300 of the 400 hours requested. [^30]

15. *Discussion*. We approve Nevada's request for 400 hours. The time
    requested covers not only face-to-face negotiations, but the
    considerable additional time that Nevada's negotiators spent
    assembling data to respond to Sprint\'s multiple requests for
    information. In addition, Sprint did not object to the size of
    Nevada\'s negotiation team during the negotiations.[^31]

### M/A-Com Negotiation Costs

16. *Nevada Position.* Nevada seeks reimbursement for 27 hours of time
    spent by M/A-Com in support of Nevada's negotiations with Sprint.
    These hours include communications between M/A-Com and Sprint as
    well as conferring with State employees and consultants on various
    issues.[^32]

17. *Sprint Position.* Sprint argues that 12 of the claimed hours are
    excessive, a claim which it bases on the fact that M/A-Com is
    requesting reimbursement for 14 hours of negotiation time during a
    time period when Sprint and M/A-Com had no direct
    communications.[^33]

18. *Mediator Recommendation*. The mediator recommends that the
    Commission approve Nevada's request for 27 hours of M/A-Com
    time.[^34] The mediator found that M/A-Com participated in the
    negotiation of the FRA with Sprint and the licensees on a regular
    basis since October 2006, including meetings with Nevada of which
    Sprint was not aware.[^35]

19. *Discussion*. We approve Nevada's request for 27 hours. The hours
    attributed to M/A-Com are not limited to communications with Sprint.
    In addition, the difference in the amount sought by Nevada and the
    amount offered by Sprint is *de minimis.* The Commission has made
    clear in the *Rebanding Cost Clarification Order* that under such
    circumstances, it is appropriate for Sprint to pay such costs rather
    than to spend more substantial resources on prolonged
    mediation.[^36]

## Planning Costs

### Site Inspection

20. *Nevada Position.* Nevada seeks approximately \$24,500 for 56 Galena
    and 347 internal hours to physically inspect and inventory the
    equipment at the system's nine 800 MHz sites, as well as
    verification of site documentation and identification of any
    site-related technical issues.[^37]

21. *Sprint Position.* Sprint offers 270 hours for these tasks (assuming
    3 people spending 10 hours per site at each site).[^38]

22. *Mediator Recommendation*. The mediator recommends that the
    Commission allow all 403 hours requested by Nevada.[^39] The
    mediator argues that Sprint's offer of 270 hours misinterprets
    Nevada's explanation of the various tasks and ignores the time
    required by key consultants.[^40]

23. *Discussion*. We approve 180 hours for this task. While Nevada is
    clearly entitled to reasonable compensation for site inspection and
    related tasks, we note that Nevada's request for these tasks is
    significantly higher than the similar request we approved in *Washoe
    County.* In *Washoe*, we approved 160 hours for inspection of eight
    sites, to be conducted by two people at 10 hours per site.[^41] We
    also approved 30 hours for verification of site documentation.[^42]
    Nevada requires inspection of nine sites, and the work will be
    performed by the same consultant (Galena) that is performing the
    work for Washoe County. However, Nevada has requested 296 hours for
    site inspection, more that 50 percent higher than in Washoe on a
    per-site basis.[^43] In addition, Nevada requests 60 hours---twice
    the amount in Washoe---for site document verification.[^44] In the
    absence of any explanation for the difference, we conclude that 180
    hours (two people spending 10 hours per site) is reasonable for site
    inspection and 30 hours is reasonable for document verification.
    However, we will provide Nevada an opportunity to request additional
    compensation for this task by submitting a showing to Sprint and the
    mediator justifying the difference in comparison to *Washoe*. Nevada
    must submit this showing within fourteen days of release of this
    order.[^45] Finally, we approve Nevada's request for 23 hours to
    identify and resolve any issues that might arise from these other
    tasks.

### Radio Personality Inventory 

24. *Nevada Position.* Nevada seeks 308 hours to inventory radio
    "personalities" in its existing radios[^46] and 12 hours to baseline
    test one of each type and model of radio involved in rebanding.[^47]
    A radio personality is the specific program that controls the
    radio.[^48] Nevada proposes to analyze the personalities in order to
    reduce the large number of unique personalities in its existing
    system (currently over 640) to a smaller number that will be used
    post-rebanding. Nevada claims that reducing the number of
    personalities will make the final reprogramming of system radios
    more efficient.[^49]

25. *Sprint Position.* Sprint offers no hours for these tasks, arguing
    that this task is not necessary for rebanding but is an attempt by
    Nevada to have Sprint pay for repacking of channels in its
    radios.[^50]

26. *Mediator Recommendation*. The mediator recommends that the
    Commission allow the 308 hours requested by Nevada.[^51] The
    mediator contends that Nevada has shown that the computer-based
    radios could malfunction and be totally inoperable without proper
    programming for features and functions and that it must deal with
    over 640 unique radio programs.[^52] The mediator rejects Sprint's
    argument that the inventory is part of Nevada's repacking plan.[^53]

27. *Discussion.* We approve 200 hours for this task. We note that
    Washoe intends to perform the same task in its rebanding plan even
    though there is not evidence that Washoe intends to repack its
    radios.[^54] However, we also note that Nevada has requested almost
    three times as many hours for this task (320 hours) as we approved
    in *Washoe* (128 hours).[^55] Given that the same consultant
    (Galena) is working on both projects, and that Washoe has
    approximately two-thirds as many radios as Nevada, we believe 200
    hours for these tasks is sufficient. However, in accordance with the
    procedure described in Section III.D.1 above, Nevada may request
    additional compensation by submitting a showing to Sprint and the
    mediator within fourteen days of release of this order explaining
    and justifying the difference in comparison to Washoe.

### Development of New Radio Personalities and System Profiles 

28. *Nevada Position.* Nevada seeks 208 hours to develop the new radio
    personalities that will be installed in the radios,[^56] 246 hours
    to test these profiles in sample radios[^57] and 80 hours to
    identify any problems and create a solution and retest.[^58]

29. *Sprint Position.* Sprint rejects these tasks as unnecessary for
    rebanding.[^59] Sprint argues that the design and testing a new
    system structure are not necessary to rebanding and suggests that
    this is a repacking-related task.[^60]

30. *Mediator Recommendation*. The mediator recommends that the
    Commission allow the hours.[^61] The mediator contends that Nevada
    has explained why these tasks are necessary for rebanding, not
    repacking.[^62] The mediator also finds this task essential to
    provide the proper radio programs to each system user.[^63]

31. *Discussion.* We find that these tasks are rebanding-related and
    therefore represent a recoverable expense for 100 hours. [^64] We
    are again informed by the fact that Washoe intends to undertake a
    similar task even though there is no evidence that Washoe intends to
    repack.[^65] However, Nevada's total request (534 hours) is over ten
    times higher than equivalent request that we approved in *Washoe*
    for the same tasks (50 hours), with no explanation for the
    difference.[^66] Because Nevada has more radio units than Washoe, we
    approve 100 hours for these tasks, but Nevada may seek more
    compensation by submitting a showing within fourteen days under the
    procedure described in Section III.D.1 above.

### Development of Radio Programming Schedule

32. *Nevada Position.* Rebanding Nevada's system will require touching
    each of the system's 6,457 radios twice, once to program in the new
    band plan and a second time after the transition is completed to
    remove pre-rebanding channels and personalities from the radios.
    Nevada requests compensation for 276 internal staff hours to prepare
    a schedule for each of the two touches and to identify locations
    around the state where each radio will be brought for
    programming.[^67]

33. *Sprint Position.* Sprint contends that 100 hours is sufficient to
    accomplish these tasks.[^68]

34. *Mediator Recommendation*. The mediator recommends reducing this
    amount to 207 hours because Nevada should require less time for
    development of the schedule for the second touch than the schedule
    for the first touch (138 hours for the first iteration and 69 hours
    for the second).[^69]

35. *Discussion.* We agree with Nevada that development of multiple
    schedules is not inherently duplicative: because each radio will be
    touched twice, it is reasonable for Nevada to develop separate
    schedules for the first and second touches.[^70] We also agree with
    Nevada that it is appropriate for both internal staff and consultant
    staff to be involved in the schedule development process,
    particularly given the large number of agencies that use the Nevada
    system and the dispersion of users across the state. However, we
    agree with the mediator that Nevada should be able to gain
    efficiencies in development of the second schedule based on similar
    elements that have been developed in the first schedule. For
    example, the selection of locations for the first touch of each
    radio should save time and effort in the selection of locations for
    the second touch of each radio. Therefore, we concur with the
    mediator's conclusion that 207 hours is sufficient because
    development of the first schedule will lead to cost reductions in
    developing the second.

### Refinement of Site Retuning Plan 

36. *Nevada Position.* Nevada seeks 48 hours to refine the
    infrastructure site retuning plan[^71] and 25 hours to estimate the
    cost of the repeater site retuning efforts.[^72]

37. *Sprint Position.* Sprint argues that these costs are not
    reimbursable because M/A-Com will develop a site retuning plan,
    which will include a timeline and estimated costs.[^73]

38. *Mediator Recommendation*. The mediator finds that Nevada has met
    its burden of proof on these matters and that these efforts are not
    duplicative of M/A-Com\'s efforts because M/A-Com\'s efforts are in
    implementation rather than planning.[^74]

39. *Discussion.* We concur with the mediator\'s finding that these
    hours are not duplicative of M/A-Com's efforts. Again, however, we
    note that Nevada's proposed hours for these tasks (73 hours) are
    over three times higher than Washoe's (24 hours).[^75] We approve 50
    hours for these tasks, unless Nevada incurs greater actual costs and
    can demonstrate that the additional time is justified.

### Galena Hourly Rates

40. *Nevada Position*. Nevada proposes that the principal Galena
    employee working on the project will bill at \$200/hour and his
    associate will bill at \$150/hour.[^76] Nevada argues that it has
    provided historical justification for these rates.[^77]

41. *Sprint Position.* Sprint objects that these are excessive premium
    rates.[^78]

42. *Mediator Recommendation*. The mediator recommends that the
    Commission allow the rates requested by Nevada on behalf of
    Galena.[^79] The mediator argues that rates have been justified in
    numerous documents. While Sprint objects to the lack of any
    historical data on these rates, Galena as a relatively new entity
    does not have a track record of invoices.[^80] Moreover, Sprint does
    not mention the fact that Galena Group has billed Nevada at the
    requested rates for work on non-reconfiguration matters.[^81] The
    mediator also notes that it can not evaluate Sprint's contention
    that Galena Group has charged lower rates to other licensees because
    Sprint Nextel has refused to provide this information to the
    mediator.[^82]

43. *Discussion.* We conclude that Galena may charge rates for its
    employees that are consistent with their standard billing rates for
    other projects. However, we note that Galena is proposing to charge
    Nevada at a \$200/hour rate for tasks that will be billed to Washoe
    County at \$150/hour.[^83] We therefore direct Nevada to either
    apply the lower rate or provide documentation to the mediator in
    support of charging a higher rate than in Washoe.

## Implementation Costs

### User Training

44. *Nevada Position.* Nevada proposes to spend 2475 hours training each
    800 MHz radio user how to use the reconfigured radios.[^84] Training
    will consist of two training sessions for each user: one 15-minute
    session to familiarize each officer with the temporary programs that
    will be in their radios during the reconfiguration process, and a
    second 10-minute session to educate each officer about the new
    channels once reconfiguration is complete.[^85]

45. *Sprint Position.* Sprint contends that one 10-minute session and
    one 5-minute session per officer is sufficient and offers 1465 hours
    for this task.[^86]

46. *Mediator Recommendation*. The mediator recommends that the
    Commission allow 2475 hours.[^87] The mediator notes that both
    parties recognize the need to train radio users during both
    reprogramming phases and opines that Nevada's estimate is more
    realistic than Sprint's.[^88]

47. *Discussion.* We approve 2475 hours for user training. As we stated
    in *Washoe*, we believe that the licensee is generally in the best
    position to assess the training needs of its users, and we will not
    substitute our judgment provided the licensee's assessment is
    reasonable in light of the record as a whole.[^89] We find that to
    be the case here, and therefore approve Nevada's request.

### Tracking Rebanding Hours and Expenditures 

48. *Nevada Position.* Nevada proposes to budget 440 hours (320 for
    internal staff, 96 for Galena, and 24 for BHC) to track rebanding
    work hours and expenditures for audit purposes. Nevada estimates
    that internal staff and consultants will spend slightly less than 20
    hours per month on this task over a 24-month project cycle.[^90]

49. *Sprint Position.* Sprint offers 120 hours based on 10 hours per
    month and a 12-month project cycle.[^91] Sprint also contends that
    costs incurred by vendors to track internal time are not
    reimbursable to licensees.[^92]

50. *Mediator Recommendation*. The mediator recommends allowing Nevada
    350 hours over 24 months, but does not allocate the hours in any
    fashion.[^93]

51. *Discussion.* We conclude that Nevada should recover costs at its
    proposed per-month rate, including costs already incurred, for the
    actual duration of the rebanding process.[^94] Because we do not yet
    know how many months rebanding the Nevada system will take, we need
    not decide between Nevada's 24-month figure and Sprint's 12-month
    figure, but we emphasize that rebanding of the system must be timely
    and expeditious.

### Status Reporting

52. *Nevada Position.* Nevada seeks 88 hours for internal status
    reporting to state officials over a 475-day period.[^95] Nevada
    explains that it will use a variety of methods for this reporting,
    which will occur at all levels of the project, including project
    management and NDOT management as well.[^96] Nevada states that it
    has allocated BHC hours for this task because BHC\'s principal is a
    former Chief Deputy Attorney General and former prosecutor and thus
    is well acquainted with NDOT and the public safety agencies that are
    part of the State radio system.[^97]

53. *Sprint Position.* Sprint offers 40 hours for this task, arguing
    that most reporting to state officials is not necessary because at
    least one state employee will be present during all phases of the
    reconfiguration process, including the implementation phase.[^98]
    Sprint also challenges the BHC hours on the grounds that Galena is
    the project manager, and that BHC is primarily tasked with providing
    legal assistance.[^99]

54. *Mediator Recommendation*. The mediator recommends that the
    Commission allow the 88 hours requested by Nevada.[^100] The
    mediator notes that Nevada requires status reporting for all
    projects of this size and nature, including internal reports for
    NDOT personnel.[^101]

55. *Discussion.* We approve 88 hours. We note that the expertise
    offered in support of the 8 BHC hours would be relevant in a
    lobbying context but is usually not necessary for communicating how
    the project is progressing to state agencies. However the amount at
    issue is *de minimis* so we will approve.

### Radio Reprogramming

56. *Nevada Position.* Nevada seeks 508 hours for participation by
    internal staff and Galena personnel in the first touch of the
    system's radio units and 468 hours for the second touch.[^102]
    Nevada estimates that several programming teams will be deployed
    throughout the state, with each team consisting of several
    individuals.[^103] Although these teams will not conduct the actual
    reprogramming of radios, Nevada contends that their participation is
    necessary for quality assurance and because state policy requires
    that a state representative be present during the entire
    reprogramming process.[^104]

57. *Sprint Position.* Sprint proposes to pay for 220 hours for each of
    the two programming stages.[^105] Sprint argues that because the
    retuning will be performed by M/A-Com, there is no need for Galena
    to be involved and the state does not require the large number of
    personnel that it has proposed for this task.[^106]

58. *Mediator Recommendation*. The mediator recommends that the
    Commission allow the hours requested by Nevada for this task.[^107]
    The mediator accepts Nevada's explanation that even though Nevada's
    vendor will be responsible for programming, state policy requires
    state personnel to be present. The mediator also notes that several
    teams of state employees will be needed for this task because
    reprogramming will occur at multiple sits throughout the
    State.[^108]

59. *Discussion.* We approve Nevada's request for 976 hours. As the
    mediator recognized, reprogramming will involve touching over 6400
    radios at over 30 locations and sometimes will involve multiple
    reprogramming sessions.[^109] We believe it is reasonable for the
    state to have teams to monitor the reprogramming process,
    particularly where it is required as a matter of state policy.[^110]
    Although Nevada's level of effort in this regard is greater than
    Washoe's (190 hours/4239 units),[^111] Nevada must retune radios
    throughout the state as opposed to a single county and Nevada has
    more units.

### Project Close-Out

60. *Nevada Position.* Nevada estimates that it will require 136 hours
    over 60 days to complete the close-out of the project after the
    system is rebanded. The time requested will cover meetings and
    document review to ensure that all necessary close-out steps have
    been taken and that Sprint agrees that the project is
    complete.[^112]

61. *Sprint Position.* Sprint offers 24 hours for these tasks, arguing
    that some of Nevada's proposed work under this line item is
    duplicative of other tasks.[^113]

62. *Mediator Recommendation*. The mediator recommends that the
    Commission allow the 136 hours.[^114] The mediator contends that
    Sprint's offer of 24 hours is not otherwise explained.[^115]

63. *Discussion.* We approve Nevada's request for 136 hours. Sprint has
    not shown the task to be duplicative. In addition, as we have stated
    in prior cases, the amount awarded is not a liquidated amount, but
    Nevada must document that the budgeted time is actually spent in the
    manner described and contributes to rebanding of the system.[^116]

## *De Minimis* Costs

64. In the *Rebanding Cost Clarification Order*, the Commission stated
    that "it is appropriate for Sprint to agree to (and the TA to
    approve) payment of disputed costs where such payment will avoid
    greater expense to negotiate and/or mediate the dispute and will
    further the goal of timely and efficient rebanding."[^117] We
    conclude that resolving the following disputed issues in Nevada's
    favor is consistent with this standard, because the combined amounts
    in dispute for these issues total approximately \$40,000 which is
    *de minimis* in relation to the overall cost of the project.[^118]

-   20 hours for Galena to identify state employees who can assist with
    completing an accurate inventory or mobile and portable
    radios.[^119]

-   44 hours for Nevada and BHC to researching orders and documents
    relating to 800 MHz rebanding.[^120] Sprint offers to reimburse for
    24 hours of work.[^121]

-   11 hours for internal staff and Galena to identify legal assistance
    that Nevada needs for rebanding.[^122]

-   16 Galena hours, 18 internal hours, and 3 BHC hours for activities
    spent determining if additional project management resources are
    necessary to accomplish rebanding.[^123]

-   50 hours of BHC time performing legal work developing an RFP,
    requesting responses, selecting a technical services firm, and
    contracting with that firm.[^124]

-   12 hours for attendance by two state employees and two Galena
    employees at a four-hour meeting to discuss and update Nevada\'s
    licensing plan.[^125]

-   20 internal and 4 Galena hours to identify testing and quality
    assurance procedures prior to rebanding and 14 hours to identify the
    programming and test equipment.[^126]

-   12 internal and 4 Galena hours to assess information gathered during
    initial contacts with specific agencies to identify any additional
    hardware and/or software necessary for the reprogramming.[^127]

-   4 internal and 8 Galena hours to identify internal staff who can
    resolve technical issues discovered during the site inventory
    process.[^128]

## Tasks With Higher Costs Than Equivalent Washoe County Costs

65. Nevada seeks approval of a number of line items that we find to be
    recoverable costs in principle, but where the amount sought is
    significantly higher than the amount that has been sought and that
    we have approved for the equivalent task in our *Washoe* order. As
    we have noted above, the Nevada and Washoe systems are similar in
    size, and have the same primary consultant (Galena). Therefore,
    where Nevada seeks a significantly higher amount than in *Washoe*,
    we require Nevada to accept a lesser amount unless it submit a
    showing to Sprint and the mediator explaining and justifying the
    difference in accordance with the procedure described in section
    III.D.1 above. Nevada must submit this showing within fourteen days
    of release of this order.

-   40 hours to identify fixed base radios to be reprogrammed.[^129]
    Nevada notes that it separated this task from the inventory of
    mobile and portable radios because of its experience with the lax
    inventory associated with base station radios.[^130] The time
    allotted is over twice the amount that Washoe seeks (14 hours), even
    though Nevada is working with fewer base stations.[^131] We approve
    14 hours unless Nevada submits a showing justifying 40 hours.

-   60 hours to identify internal technical staff necessary to prepare
    for mobile programming.[^132] Sprint offers 10 hours for Nevada to
    determine whether it will reprogram mobiles using internal
    resources.[^133] However, Washoe only sought six hours to accomplish
    the same task.[^134] We approve 10 hours in light of the larger
    number of mobiles in the Nevada system, unless Nevada submits a
    showing justifying 60 hours.

-   176 hours for development of a cost estimate, identification of what
    internal, consultant, and legal resources will be included in the
    cost estimate, and the identification of cost and time for legal
    assistance and consultants.[^135] Washoe's plan does not include a
    line item for this task. We decline to approve this task unless
    Nevada submits a showing justifying 176 hours.

-   188 hours to test radios for quality assurance after they have been
    reprogrammed.[^136] This task will occur after each programming
    iteration. Nevada claims that it is required by state policy to
    check and accept all work performed by a technical service
    firm.[^137] Nevada also states that testing will protect officer
    safety and identify potential errors that could otherwise lead to
    radios needing to be recalled and reprogrammed.[^138] We believe
    that reasonable testing of radios after rebanding is a prudent and
    recoverable expense to ensure that there are no systemic errors in
    the radios.[^139] However, the 188 hours sought by Nevada are
    significantly higher than the 20 hours that were requested and
    approved in *Washoe*.[^140] We approve 40 hours unless Nevada
    submits a showing justifying 188 hours.

# Ordering ClauseS

66. Accordingly, pursuant to the authority of Sections 0.191 and 0.392
    of the Commission's rules, 47 C.F.R. §§ 0.191, 0.392; Section 4(i)
    of the Communications Act of 1934, as amended, 47 U.S.C. § 154(i),
    and Section 90.677, of the Commission's Rules, 47 C.F.R. § 90.677,
    IT IS ORDERED that the issues submitted by the Transition
    Administrator are resolved as discussed above.

67. IT IS FURTHER ORDERED that the Transition Administrator shall
    convene a meeting of the parties consistent within fourteen days of
    the date of this Order for the purpose of completing a Frequency
    Relocation Agreement consistent with the resolution of issues set
    forth herein.

> FEDERAL COMMUNICATIONS COMMISSION
>
> David L. Furth
>
> Associate Bureau Chief
>
> Public Safety and Homeland Security Bureau

[^1]: Galena provides telecommunications and project management services
    while BHC provides engineering, project management and legal
    services.

[^2]: County of Washoe and Sprint Nextel, *Memorandum Opinion and
    Order,* 22 FCC Rcd 11860 (PSHSB 2007) (*Washoe MO&O*).

[^3]: *See* Proposed Resolution Memorandum of the State of Nevada and
    the University and Community College System of Nevada, filed by
    Nevada on December 11, 2006, Exhibit 1 at 3-4 (Nevada PRM).

[^4]: *Id.*

[^5]: *Id.*

[^6]: Nevada PRM at 2 n.3.

[^7]: *Id.* at 4, Exhibit 4 at 34.

[^8]: *Id.*

[^9]: Statement of Position, filed by Sprint Nextel on February 12, 2007
    (Sprint SOP) and Statement of Position, filed by State of Nevada on
    February 12, 2007 (Nevada SOP).

[^10]: *See* Improving Public Safety Communications in the 800 MHz Band,
    *Report and Order, Fifth Report and Order, Fourth Memorandum Opinion
    and Order, and Order,* 19 FCC Rcd 14969, 15074 ¶ 198 (2004) (*800
    MHz Report and Order*); Improving Public Safety Communications in
    the 800 MHz Band, *Supplemental Order and Order on Reconsideration*,
    19 FCC Rcd 25120, 25152 ¶ 71 (2004) (*800 MHz Supplemental Order*).

[^11]: Improving Public Safety Communications in the 800 MHz Band,
    *Memorandum Opinion and Order*, 22 FCC Rcd 9818 (2007) (*Rebanding
    Cost Clarification Order*).

[^12]: *Id.* at ¶ 6.

[^13]: *Id.* at ¶ 8.

[^14]: *See generally Washoe MO&O*.

[^15]: *Washoe MO&O* at ¶ 31.

[^16]: Nevada SOP at 4-13.

[^17]: *Id.* at 3-4.

[^18]: *Id.* at 6-9.

[^19]: Sprint SOP at 7-8.

[^20]: Reply of Nextel Communications, Inc. to the Proposed Resolution
    Memorandum of Licensee, filed December 13, 2006 by Sprint, at 3-4
    (Sprint Reply PRM).

[^21]: Sprint SOP at 8-9.

[^22]: Recommended Resolution, filed January 29, 2007 by the 800 MHz
    Transition Administrator, LLC at 50-51 (RR).

[^23]: *Rebanding Cost Clarification Order.* at ¶ 3.

[^24]: *Rebanding Cost Clarification Order*, Joint Statement of Chairman
    Kevin L. Martin and Commissioners Michael J. Copps, Jonathan S.
    Adelstein, Deborah Taylor Tate and Robert M. McDowell (Joint
    Statement).

[^25]: *Rebanding Cost Clarification Order* at ¶ 8.

[^26]: *Id*., Joint Statement.

[^27]: Nevada Reply PRM at 29-31.

[^28]: *Id.*

[^29]: *Id.*

[^30]: RR at 47.

[^31]: *Id.*

[^32]: *See* Supplemental Proposed Resolution Memorandum of the State of
    Nevada and the University and Community College Systems of Nevada,
    filed January 11, 2007 at 5-6, App C at 3, App. E at 2 (Nevada
    Supplemental PRM).

[^33]: *See* Supplemental Proposed Resolution Memorandum of Nextel
    Communications, filed January 11, 2007 (Sprint Supplemental PRM).
    Sprint does accept 2 hours of M/A-COM time to prepare a one and
    one-half page letter during that time period. *Id.* at 10.

[^34]: RR at 50.

[^35]: *Id.*

[^36]: *Rebanding Cost Clarification Order* at ¶ 6.

[^37]: Nevada PRM, Ex. 6 at 2, Ex. 4 at 32.

[^38]: Sprint Supplemental PRM at 10.

[^39]: RR at 44.

[^40]: *Id.*

[^41]: *Washoe MO&O* at ¶¶ 11-15.

[^42]: *Id.* at ¶ 36.

[^43]: *Washoe MO&O.* at ¶¶ 11-15, Nevada PRM, Exhibit 4 at 32.

[^44]: *Washoe MO&O.* at ¶¶ 11-15, Nevada PRM, Exhibit 6 at 2, Exhibit 4
    at 32.

[^45]: If Nevada submits a showing and the parties are unable to resolve
    the issue through mediation within 14 days thereafter, the mediator
    shall refer the issue to PSHSB.

[^46]: Reply of the State of Nevada and the University and Community
    College Systems of Nevada, filed December 13, 2006 by Nevada at 18
    (Nevada Reply PRM)*.*

[^47]: *Id.*

[^48]: *Id.* at 18-19.

[^49]: *Id.*

[^50]: Sprint PRM at 13-14.

[^51]: RR at 45.

[^52]: *Id.*

[^53]: *Id.*

[^54]: *Washoe MO&O* at ¶ 38.

[^55]: *Id.*

[^56]: Nevada Reply PRM at 20.

[^57]: *Id.* at 21.

[^58]: *Id.*

[^59]: Sprint PRM at 14-15.

[^60]: *Id.*

[^61]: RR at 46.

[^62]: *Id.*

[^63]: *Id.*

[^64]: RR at 46.

[^65]: *Washoe MO&O* at ¶ 38.

[^66]: *Id*.

[^67]: Nevada Reply PRM at 33, 36.

[^68]: *Id.*

[^69]: RR at 48.

[^70]: *Washoe MO&O* at ¶ 45.

[^71]: Nevada Supplemental PRM at 13.

[^72]: *Id.* at 14.

[^73]: Sprint PRM at 11.

[^74]: RR at 45.

[^75]: Proposed Resolution Memorandum of Nextel Communications, Inc. in
    TAM 12342 (Washoe County), filed March 2, 2007, Exhibit B at 1
    (Washoe Task List).

[^76]: RR at 39.

[^77]: Nevada Reply PRM at 47.

[^78]: Sprint PRM at 27-29.

[^79]: RR at 50.

[^80]: *Id.*

[^81]: *Id.*

[^82]: *Id.*

[^83]: Washoe Task List.

[^84]: Nevada PRM Ex. 4 at 33.

[^85]: *Id.*

[^86]: *Id.*

[^87]: RR at 49.

[^88]: *Id.*

[^89]: *Washoe MO&O* at ¶ 10.

[^90]: Nevada PRM at 11.

[^91]: Sprint PRM at 20-21.

[^92]: *Id.*

[^93]: RR at 48.

[^94]: *Washoe MO&O* at ¶ 44.

[^95]: Nevada Reply PRM at 31-32.

[^96]: *Id.*

[^97]: *Id.* at 32.

[^98]: Sprint PRM at 19-20.

[^99]: *Id.*

[^100]: RR at 47-48.

[^101]: *Id.*

[^102]: Nevada Reply PRM at 39.

[^103]: *Id.*

[^104]: *Id.*

[^105]: Sprint PRM at 23-24.

[^106]: *Id.*

[^107]: RR at 49.

[^108]: *Id.*

[^109]: *Id.*

[^110]: RR at 49.

[^111]: Washoe Task List at 4.

[^112]: Nevada Reply PRM at 43-44.

[^113]: Sprint PRM at 25-26.

[^114]: RR at 49.

[^115]: *Id.*

[^116]: *See* City of Manassas, Virginia and Sprint Nextel, *Memorandum
    Opinion and Order*, 22 FCC Rcd 8526, 85311 ¶ 16 (PSHSB 2007).

[^117]: *Rebanding Cost Clarification Order*, 22 FCC Rcd at 9820-21 ¶ 9.

[^118]: We also approve 99 hours for two issues that are no longer
    contested. Nevada did not contest the mediator's finding that 24
    hours rather than 56 hours is sufficient for development of an
    internal and external payment process. *See* Nevada Reply PRM at
    27-28, Sprint PRM at 18 and RR at 47. The mediator also found that
    75 hours was the appropriate time for review and collaboration with
    M/A-COM of the site retuning plan effort as opposed to Nevada's
    request of 112 hours and Sprint's offer of 40 hours. *See* Nevada
    Reply PRM at 12-13, Sprint PRM at 10-11 and RR at 44.

[^119]: Nevada Reply PRM at 17-18.

[^120]: Nevada Reply PRM at 9-10 and Nevada PRM, Exhibit 4 at 32.

[^121]: Nevada PRM, Exhibit 5 at 1.

[^122]: Nevada Reply PRM at 7

[^123]: *Id.* at 8.

[^124]: Nevada PRM, Ex. 6 at 2, Ex. 4 at 32.

[^125]: Nevada PRM at 6, Ex. 6 at 2.

[^126]: Nevada Reply PRM at 22-24, Nevada PRM, Ex. 4 at 32.

[^127]: Nevada Reply PRM at 23, Nevada PRM, Ex. 4 at 32.

[^128]: Nevada Reply PRM at 15, Nevada PRM, Ex. 4 at 32.

[^129]: *Id.* at 24.

[^130]: *Id.*

[^131]: Washoe Task List at 3.

[^132]: Nevada Reply PRM at 17.

[^133]: Sprint PRM at 12-13.

[^134]: Washoe Task List at 2.

[^135]: RR at 21-23.

[^136]: Nevada Reply PRM at 39.

[^137]: *Id.*

[^138]: *Id.* at 38-39.

[^139]: RR at 49.

[^140]: Washoe Exhibit at 4. The task is listed at Pre-tests and quality
    assurance procedures.