**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | *  | WT Docket No. 02-55          |
|                                  | *) |                              |
| Ron Gossett and Barbara Gossett  | ** |                              |
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| and Sprint Nextel                | *  |                              |
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| Mediation No. TAM-50018          | ** |                              |
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**MEMORANDUM OPINION AND ORDER**

**Adopted: May 3, 2007 Released: May 4, 2007**

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

# Introduction

1.  In this Order, we address a case referred to us for *de novo* review
    by the 800 MHz Transition Administrator, LLC (TA) involving the
    alleged failure by 800 MHz licensees Ron and Barbara Gossett
    (Gossetts) to perform under the terms of their Frequency Relocation
    Agreement (FRA) with Sprint Nextel Corporation (Sprint). Based on
    our review of the record in this case, we find that the Gossetts
    have consistently failed to meet their obligation of good-faith
    participation in the rebanding process and have forfeited their
    right to retuning of their facilities at Sprint's expense. We
    therefore find that Sprint is not responsible for the cost of
    retuning this facility, and that the Gossetts must retune station
    WPEH654 at their own expense or cease operation and surrender their
    license. If the Gossetts fail to either retune their station or
    surrender their license, they must show cause why the Commission
    should not modify the license pursuant to Section 316 of the
    Communications Act by assigning new frequencies and terminating
    their right to operate on their current frequencies.[^1]

# BACKGROUND

1.  The Gossetts are licensed under call sign WPEH654 for a single-site
    conventional 800 MHz system in Nashville, Tennessee. This station
    was scheduled for relocation in Wave 2, Stage 1 of the rebanding
    process. During the negotiation period for this wave, the Gossetts
    refused to participate in negotiations with Sprint, causing the TA
    to place the parties in early mediation.[^2] In mediation, the
    Gossetts resisted efforts by the TA mediator to secure their
    participation.[^3] The mediator then recommended that the Commission
    require the Gossetts to either reband voluntarily under a proposal
    made by Sprint or be rebanded involuntarily without
    compensation.[^4] On June 29, 2006, shortly after the mediator's
    recommendation, the Gossetts signed an FRA with Sprint in which they
    agreed to retune their system by September 2006.[^5] However, the
    Gossetts failed to retune the system as required and proposed that
    Sprint do so instead.[^6] Sprint investigated this option but
    determined that the tower owner would not allow access to the site
    because the Gossetts were in arrears on their lease.[^7] Sprint then
    proposed that the Gossets cancel their lease and offered to pay the
    fees for such cancellation. The Gossets refused this offer.[^8]

2.  On November 10, 2006, the TA once again placed the parties into
    mediation at Sprint\'s request.[^9] The Gossetts refused to
    participate in the mediation and declined to file anything in the
    record.[^10] On January 18, 2007, after over two months of continued
    non-cooperation by the Gossetts, the mediator forwarded the
    mediation record, along with an updated recommended resolution, to
    the Public Safety and Homeland Security Bureau.

3.  Sprint contends the Gossetts have repeatedly breached their duty of
    good faith imposed by the Commission. Sprint argues that during the
    negotiation and mediation period, the Gossetts withheld essential
    system information, failed to cooperate in negotiations and
    mediation, and refused to respond to Sprint's repeated good-faith
    efforts to resolve this matter.[^11] Sprint contends that since the
    Gossetts signed the FRA, they have continued their pattern of
    non-cooperation by failing to implement the agreement, rejecting
    Sprint's proposal to cancel their license, and failing to
    participate in further mediation.[^12]

4.  The TA mediator agrees with Sprint that the Gossetts have breached
    their duty of good faith.[^13] The mediator recommends that the
    Commission issue an order requiring the Gossetts to show cause why
    their license for call sign WPEH654 should not be cancelled as a
    result of their failure to negotiate or participate in mediation in
    good faith.[^14]

# discussion

5.  Based on the record before us, we find that the Gossetts have
    breached their duty of good faith as defined by the Commission's
    orders in this proceeding. The Commission stated explicitly that
    although it could not predict what "good faith" may be for all
    parties in all circumstances, it envisioned that it extends to
    making a counteroffer to a reasonable offer, rather than refusing an
    offer outright[^15] The record is clear that they have repeatedly
    failed to respond to requests to provide information, have not
    responded to good faith negotiation offers by Sprint, and have
    failed to cooperate in the mediation process. This complete absence
    of cooperation and responsiveness is sufficient by itself to support
    a finding that the Gossetts are not entitled to recovery of any of
    their retuning costs from Sprint. Moreover, the Gossetts' continued
    pattern of non-cooperation threatens to impede the rebanding
    process. Reconfiguration of the 800 MHz band is of imperative
    importance and we will not allow it to be threatened by intransigent
    licensees. Therefore, we require the Gossetts, at their own expense,
    to retune station WPEH654 to the frequencies specified by the TA and
    to complete such retuning within thirty days of the release date of
    this Order. Alternatively, the Gossetts shall cease operation and
    surrender their license within thirty days of the release date of
    this Order.

6.  If the Gossetts fail to abide by the terms of this Order, because
    such action would threaten public safety communication, we propose,
    pursuant to Section 316(a) of the Communications Act, 47 U.S.C.
    §316(a) to modify the license of station WPEH654 to authorize it to
    operate on the replacement channels designated for it by the TA and
    to remove their authorization to operate on their current
    frequencies. Pursuant to Section 316(b) of the Communications Act,
    47 U.S.C. §316(b), and Section 1.87(c) of the Commission's rules, 47
    C.F.R. §1.87(c), we afford the Gossetts and any other similarly
    affected licensees and opportunity to protest this proposed
    modification. Because the proposed modification to WPEH654 involves
    the safety of life and property, we require the Gossetts to file any
    protest within forty days of the release date of this Order.

# Ordering Clauses

7.  Accordingly, pursuant to the authority of Sections 0.191 and 0.392
    of the Commission's rules, 47 C.F.R. §§ 0.191, 0.332, 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 to the Chief of the Public Safety and Critical
    Infrastructure Division of the Wireless Telecommunications Bureau
    for *de novo* review **ARE RESOLVED** as stated herein.

8.  **IT IS FURTHER ORDERED** that no later than thirty days after the
    release date of this order, Ron and Barbara Gossett shall cease
    operations on their current frequencies and shall either (1) retune
    Station WPEH654 to the frequencies specified by the TA, or (2)
    surrender their license to the Commission.

9.  **IT IS FURTHER ORDERED**, that if Ron and Barbara Gossett fail to
    comply with the above clause, pursuant to Section 316(a) of the
    Communications Act, 47 U.S.C. §316(a), Ron and Barbara Gossett
    **SHALL SHOW CAUSE** why their authorization for station WPEH654
    should not be modified by assigning new frequencies specified by the
    TA and terminating their right to operate on their current
    frequencies.

10. **IT IS FURTHER ORDERED**, that pursuant to Section 1.87(a) of the
    Commission's Rules, 47 C.F.R. §1.87(a), Ron and Barbara Gossett ,
    may, no later than forty days after release date of this Order, file
    a written statement showing with particularity why its license
    should not be modified as proposed.

11. If the Gossetts or any other party raise a substantial and material
    question of fact, a hearing may be required to resolve such
    questions of fact pursuant to Section 1.87 of the Commission's
    rules. 47 C.F.R. §1.87. Upon review of the statements and/or
    additional information furnished, the Commission may grant the
    modification, deny the modification, or set the matter of
    modification for hearing. If no written statements are filed within
    forty days of the release date of this Order, the licensee will be
    deemed to have consented to a modification as proposed and a final
    Order will be issued if the modification is found to be in the
    public interest.

12. **IT IS FURTHER ORDERED,** that a copy of this *Memorandum Opinion
    and Order* shall be sent **BY CERTIFIED MAIL, RETURN RECEIPT
    REQUESTED**, to the following:

    Ron and Barbara Gossett

    5251 Little Marrowbone Road

    Ashland City, TN 37015

    Justin O. Kay, Esq.

    Drinker Biddle & Reath LLP

    1500 K St, N.W. Suite 1100

    Washington, DC 20005-1209

#  {#section .unnumbered}

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

[^1]: 47 U.S.C. §316.

[^2]: TA Mediator Recommended Resolution, filed January 18, 2007 (2007
    RR) at 2.

[^3]: *Id.* at 2-3 *citing* TA Mediator Recommended Resolution, filed
    May 22, 2006 (2006 RR).

[^4]: *Id.* at 2-3.

[^5]: *Id.* at 3.

[^6]: Proposed Resolution Memorandum of Sprint Nextel Corporation, filed
    November 14, 2006 (Sprint PRM) at 6, 3.

[^7]: *Id.* at 3.

[^8]: *Id.* at 3-4.

[^9]: *See* Request for Mediation from Julian H. Edwards filed October
    31, 2006 and Notice of Commencement of Mediation dated November 10,
    2006.

[^10]: 2007 RR at 3-4.

[^11]: Sprint PRM at 4.

[^12]: *Id.* at 4-6.

[^13]: 2007 RR at 6-9.

[^14]: *Id.* at 9-10.

[^15]: Improving Public Safety Communications in the 800 MHz Band,
    *Supplemental Order and Order on Reconsideration*, 19 FCC Rcd 25120,
    25153 ¶ 73 (2004) (*800 MHz Supplemental Order*); *see also*
    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, 15076, n.524 (2004) as amended
    by Erratum, 19 FCC Rcd 19651 (2004)*,* and Erratum, 19 FCC Rcd 21818
    (2004)( Among the factors relevant to a good-faith determination
    are: (1) whether the party responsible for paying the cost of band
    reconfiguration has made a bona fide offer to relocate the incumbent
    to comparable facilities; (2) the steps the parties have taken to
    determine the actual cost of relocation to comparable facilities;
    and (3) whether either party has unreasonably withheld information,
    essential to the accurate estimation of relocation costs and
    procedures, requested by the other party).