**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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| City of Boston, Massachusetts    | ** |                              |
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| and Sprint Nextel                | *  |                              |
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| Mediation No. TAM-11155          | ** |                              |
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**MEMORANDUM OPINION AND ORDER**

**Adopted: December 20, 2006 Released: December 20, 2006**

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

# Introduction

1.  In this *Memorandum Opinion and Order*, we address two cases
    referred to us for *de novo* review from Wave 1, Phase 1 mediation
    by the 800 MHz Transition Administrator (TA) involving disputes
    between the City of Boston (Boston) and Sprint Nextel Corporation
    (Sprint). The first case concerns the reconfiguration of the 800 MHz
    communications system of the Boston Police Department (BPD system).
    The second case concerns the reconfiguration of Boston's 800 MHz
    Trunking and Transportation System (BTT system). In both cases, the
    parties dispute the need for and reimbursability of third-party
    proprietary software developed by MCM Technology LLC (MCM) for
    management and tracking of mobile and portable radios involved in
    the reconfiguration process.[^1] In the BTT system case, the parties
    also dispute contractual language governing the change order
    process.

2.  We have consolidated the two cases into a single order. Based on our
    *de novo* review of the mediation records, we find that in both the
    BPD and BTT system cases, Boston has not demonstrated that the
    amount of funding it seeks for the purchase of the MCM software and
    associated installation and training is reasonable, prudent, and the
    "minimum necessary to provide facilities comparable to those
    presently in use." With respect to the contractual language dispute
    in the BTT system case, we direct the parties to adopt the same
    language on this issue agreed to by the parties in the BPD system
    case.

# background

3.  The *800 MHz R&O* and subsequent orders in this docket require
    Sprint to negotiate a Frequency Relocation Agreement (FRA) with each
    800 MHz licensee that is subject to rebanding.[^2] The FRA must
    provide for relocation of the licensee's system to its new channel
    assignment(s) at Sprint's expense, including the expense of retuning
    or replacing the licensee's equipment as required.[^3] Sprint must
    provide the relocating licensee with "comparable facilities" on the
    new channel(s), and must provide for a seamless transition to enable
    licensee operations to continue without interruption during the
    relocation process.[^4]

4.  To facilitate FRA negotiations, the Commission established a
    three-month voluntary negotiation period and a three-month mandatory
    negotiation period for Sprint to negotiate with each relocating
    licensee.[^5] If a licensee and Sprint are unable to negotiate a FRA
    by the end of the mandatory negotiation period, they must enter into
    mediation under the auspices of a TA-appointed mediator. If the
    parties do not reach agreement by the end of the mediation period,
    the mediator forwards the mediation record and a recommended
    resolution to the Commission's Public Safety and Homeland Security
    Bureau (PSHSB).[^6] Within ten business days of the mediator's
    submission of the record and recommended resolution, the parties may
    file position statements. Position statements may not, however,
    raise issues not presented during mediation.[^7] Thereafter, PSHSB
    conducts a *de novo* review of the mediation record, evaluates the
    parties' position statements and the mediator's recommended
    resolution, and issues an order disposing of all disputed
    issues.[^8]

5.  The BPD system (licensed under call signs WQBA899, WQBB424, WNGY708,
    WPFF631, WPFF645, and WPHY940) consists of a number of fixed sites
    and 419 mobile units.[^9] The BTT system (licensed under call signs
    KNJA565, KKR520, WPYH902 and WQDU213) consists of two separate
    systems: the Trunked System, a three-site simulcast,
    fourteen-channel trunked radio network, and the Transportation
    System, a single-site, two channel, conventional system which
    supports 1414 portable units and 789 mobile units.[^10] The TA's
    Regional Prioritization Plan calls for relocation of the BPD system
    during Wave 1, Stage 1 of the multi-phased reconfiguration process.
    [^11] Relocation of the BTT system will occur in two stages:
    Stations KKR520 and KNJA565 are to be relocated in Wave 1, Stage 1
    and Stations WPYH902 and WQDU213 are to be relocated in Wave 1,
    Stage 2.[^12]

6.  In negotiations and mediation, Boston and Sprint agreed on all
    issues relating to relocation of the BPD and BTT systems, except
    for 1) whether Sprint should pay for the purchase of MCM's
    third-party software and associated installation and training costs,
    and 2) contractual provisions relating to change orders for the BTT
    system. After negotiation and mediation proved unsuccessful on these
    issues, they were referred to us by the mediator for *de novo*
    review and resolution.[^13] On July 31, 2006, the mediator forwarded
    the record of the BPD system mediation and a Recommended Resolution
    to PSCID.[^14] On October 10, 2006, the mediator forwarded the
    record of the BTT system mediation and a Recommended Resolution to
    PSHSB.[^15]

## MCM Software Issue---Parties' Positions and Mediator Recommendations

7.  *Boston Position*. Boston states that it needs to deploy and use the
    MCM software package in support of its rebanding efforts.[^16]
    Although Boston does not explicitly set out the cost of the software
    package in its pleadings, the certified cost estimates for the two
    systems show that MCM proposes to charge \$159,825 for the software
    and ancillary services for the combined systems.[^17] Boston argues
    that the cost of the MCM software and associated training is a
    reimbursable expense because the software is necessary to manage the
    reconfiguration process as well as to account for the internal time
    and materials it will expend in reconfiguring its 800 MHz
    system.[^18] Boston claims that it has considered alternatives to
    purchasing the software package and found them to be either too
    costly or inadequate to meet its needs.

8.  *Sprint Position*. Sprint argues that the MCM software is an
    unnecessary and excessive expense, and that Boston can meet its
    project management needs without the use of the software.[^19]
    Sprint contends that the MCM software has capabilities far in excess
    of those required to accomplish band reconfiguration of Boston's
    systems, and that neither the BPD nor the BTT systems is of the size
    or complexity to require the use of specialized software such as
    MCM's. Sprint contends that Boston could use off-the-shelf software
    for project management and inventory tracking at far lower
    cost.[^20] At one point during the mediation over the BPD system,
    Sprint offered Boston \$345.50 per radio to cover internal costs,
    including an allowance of \$20 per radio to cover project management
    and auditing functions.[^21]

9.  *Mediator Recommendations.* The mediator issued separate
    recommendations for the BPD and BTT cases, and recommended different
    results in the two cases. In the BPD system case, the mediator
    recommended finding in favor of Sprint on the MCM software issue.
    [^22] The mediator concluded that purchase of the MCM software was
    not a recoverable expense under the facts contained in the record
    with respect to the BPD system. The mediator found that in light of
    the BPD system's small size and lack of complexity, the cost of the
    MCM software far exceeds the minimum necessary to fulfill the
    licensee's legitimate needs and constitutes an upgrade that Sprint
    should not be required to pay for.[^23] The mediator recommended
    that Boston receive \$18,525 from Sprint for the development of a
    spreadsheet and database to aid in project management and accounting
    tasks related to the reconfiguring of the BPD system.[^24]

10. In the BTT system case, the mediator found that Boston had justified
    the use of the MCM software, and recommended that Boston receive
    compensation for the software and associated services.[^25] The
    mediator distinguished its recommendation in the BTT case from its
    contrary recommendation in the BPD case based on the larger size and
    complexity of the BTT system. The mediator found that in light of
    these factors, the MCM software was a justifiable expense in the BTT
    case and not an unjustifiable upgrade. The mediator recommended that
    the Commission award Boston compensation totaling \$76,945.00 for
    the purchase of MCM software and associated services.[^26]

## Contractual Language Issue---Parties' Positions and Mediator Recommendation

11. *Boston Position*. Boston proposes an amendment to the Change Notice
    section of the BTT FRA that would allow Boston to cease performance
    under the terms of the FRA if Nextel fails to participate in the
    Change Notice process in a timely fashion.[^27] Boston contends that
    this change is necessary to protect the City from being
    contractually obligated to move forward with rebanding in the event
    that it is unsettled whether the activities in dispute would be
    subject to payment by Sprint**.**[^28]

12. *Sprint Position.* Sprint acknowledges Boston's concern but does not
    agree with Boston's proposed language. Sprint contends that the
    language is overbroad because it suggests that a dispute over any
    change notice would allow Boston to cease performance of completely
    unrelated tasks.[^29]

13. *Mediator Recommendation.* The mediator recommended finding in favor
    of Sprint on this issue. The mediator concluded that the language
    governing change orders contained in the BPD FRA, which was accepted
    by Boston in that case, is also sufficient for the BTT FRA.[^30]

##  Burden of Proof

14. Under the Commission's orders in this proceeding, Boston bears the
    burden of proving that the funding it has requested for relocation
    is reasonable, prudent, and the "minimum necessary to provide
    facilities comparable to those presently in use."[^31] The
    Commission's orders allow Boston to be compensated for both "hard
    costs," which include the price of equipment and the labor necessary
    to install, tune, and test the equipment, as well as reasonable
    "transaction costs," which include staff administrative time and,
    when necessary, attorney and consultant fees required to plan for
    reconfiguration and negotiate the FRA. The Commission further
    requires us to give a "particularly hard look to any request
    involving transaction costs that exceed two percent" of the hard
    costs involved in system relocation, stating that in the vast
    majority of such cases, the party requesting transaction costs will
    have to meet a "high burden" of justification.[^32]

# discussion

## Rebanding Software

### Introduction

15. As a threshold matter, we agree with Boston that it is entitled to
    compensation for reasonable expenses incurred to undertake the
    following project management tasks:

-   Overall supervision of the rebanding process including work
    performed by vendors;

-   Recording internal costs that are related to rebanding;

-   Identification of all radio units;

-   Scheduling and dispatching personnel and units to locations for the
    purpose of rebanding;

-   Tracking each affected vehicle, radio, and crew to avoid duplication
    of effort and to protect the public safety by assuring adequate
    fleet strength and personnel availability in each location,
    precinct, and neighborhood; and

-   Assuring the rebanded system is fully comparable with the existing
    system.

    We also agree with Boston that incumbents must provide accurate
    documentation of these tasks to support reconciliation and a future
    audit by the TA. Therefore, if Boston proves that its current
    practices and personnel are insufficient to the task, Boston is
    entitled to compensation for the reasonable cost of acquiring
    software and hiring or training personnel necessary to generate such
    documentation.

16. We disagree, however, with Boston's contention that it cannot
    accomplish these project management and accounting tasks except
    through the acquisition and use of the specific MCM software package
    proposed in this case. As discussed below, Boston has not
    demonstrated that the MCM software is operationally necessary in
    order for Boston to perform project management tasks associated with
    rebanding. We also find that Boston has not met its burden of
    showing that the proposed expenditure of \$159,825 for the MCM
    software and related costs represents the most cost-effective means
    of carrying out these tasks. The record shows that the MCM software
    and the associated staff training would provide Boston with
    significant non-rebanding benefits based on its utility for other
    inventory and project management tasks. Boston has not taken the
    excess value of this asset into account in its cost estimates.
    Although we do not foreclose Boston or any other licensee from using
    the MCM software in connection with retuning 800 MHz systems, we
    conclude that Sprint is not responsible for paying for features or
    services that are not essential to the band reconfiguration process,
    particularly when the licensee benefits from the ability to use the
    product or service for applications unrelated to band
    reconfiguration.

### Operational Need for MCM Software

17. Boston has not presented sufficient evidence in the record to show
    that the MCM software package and associated services are
    operationally necessary in order for Boston to perform project
    management tasks associated with rebanding.

18. *System Size and Complexity.* System size and complexity may be
    relevant considerations in determining what is operationally
    necessary for rebanding project management and accounting. However,
    the record does not indicate that the BPD and BTT systems are
    unusually large or complex. The BPD system is a relatively small
    system with fewer than 500 mobiles. The BTT system is somewhat
    larger, but with approximately 2200 mobiles and portables, it is
    still smaller than many public safety systems that provide service
    to large urban areas or on a statewide basis.[^33] Nor does the
    record indicate that either system is unusually complex from a
    technical standpoint, covers a large geographic area, or has complex
    interoperability needs. Although Boston mentions that it has
    interoperability with the State of Massachusetts, the record is
    silent as to the number of interoperable units or the level of
    interoperability.[^34]

19. The record does not support a finding that Boston needs more
    sophisticated project management software due the number of systems
    it operates or the number of agencies that use its systems. Boston
    argues that it needs the ability to track assets and personnel in
    "real time" to ensure that fleet strength and personnel availability
    are not impacted by the rebanding process.[^35] However, even in the
    absence of rebanding, Boston must make fleet strength and personnel
    availability assessments for all of its public safety systems on a
    daily basis to accommodate regular personnel issues (*e.g.,*
    vacation and sick leave) and fleet issues (*e.g.,* mechanical
    breakdowns, regular maintenance of vehicles). In fact, much of the
    scheduling necessary to provide for retuning and replacement of
    radios can be planned in advance, unlike many other issues that may
    affect fleet and personnel availability. It is also significant that
    the BTT and BPD systems represent only a small percentage of
    Boston's overall public safety operations. A search of the
    Commission's licensing database shows that the City of Boston and
    associated public safety entities (*e.g.*, Boston Fire Department)
    have 131 active licenses, for both 800 MHz and UHF/VHF systems. The
    BPD and BTT systems account for only ten of these 131 licenses.
    Given that Boston has not previously required sophisticated software
    of the type provided by MCM to perform these tasks for all of its
    systems, Boston has failed to show why such software is necessary to
    support the rebanding process for two systems that represent only
    7.6 percent of its licensed operations.

20. *Number of "Touches" Per Radio.* Boston asserts that the MCM
    software is necessary to enable it to schedule and track the
    activities of city personnel in retuning each mobile and portable
    radio. However, we find that this assertion rests on a mistaken
    assumption about the minimum number of times that each radio will
    need to be "touched" during the rebanding process, and an
    overestimation of the personnel resources required to accomplish
    each touch.

21. With respect to the first issue, Boston contends that its personnel
    must touch each radio at least twice during rebanding, first to
    program in the new 800 MHz channels that the system will use after
    rebanding, and then a second time to remove the pre-rebanding
    channels from the radio once the system has begun operation on the
    new channels.[^36] In fact, the Commission's rebanding orders do not
    mandate a "second touch" to remove pre-rebanding channels from
    mobiles and portables because such a step is unnecessary to the
    rebanding process. The process contemplates that each mobile and
    portable in an 800 MHz system will be touched once to program in new
    channels,[^37] with the old channels being kept in the radio so that
    it can continue to operate until the transition to the new channels
    has occurred.[^38] However, once a system has been retuned, and the
    base stations are operating on their new channels, there will no
    longer be any base stations operating on the old channels through
    which the mobile and portable radios can communicate. Thus, the
    ability of the radios to tune to channels that are no longer in use
    poses no operational impediment to the licensee's operation of its
    system.[^39] Because removal of the old channels from mobiles and
    portables is not operationally necessary to 800 MHz rebanding, it
    was not contemplated by the *800 MHz R&O*. However, if for any
    reason a licensee wished to remove the old channels from its radios,
    it could do so at its own expense any time after 800 MHz band
    reconfiguration is complete in its area. For example, the licensee
    could remove the channels as part of routine radio maintenance,
    adding slight, if any, incremental cost to the maintenance
    procedures.

22. The record also indicates that Boston has overestimated the number
    of personnel involved in each touch of a radio. Boston claims that
    each touch of a portable or mobile will involve 5.5 city personnel,
    but its own cost schedule identifies only 3.5 people (*i.e*., 1.5
    public safety personnel, a radio technician, and a
    supervisor/dispatcher) associated with each mobile radio touch.[^40]
    Boston does not distinguish retuning of mobile units from portable
    units in its schedule, even though retuning portable units would
    involve fewer personnel than mobiles.[^41] Taking all of these
    factors into account, we find that the actual number of "personnel
    events" supported by the record that Boston will need to track is
    perhaps one-third of its estimate of 27,500. This significantly
    reduces Boston's need for the sophisticated tracking capability
    offered by the MCM software

### Software Costs and Related Expenses

23. We also find that Boston has not met its burden of showing that the
    proposed expenditures for the MCM software package and related costs
    represent the most cost-effective means of performing project
    management and accounting tasks associated with rebanding.

24. MCM proposes to charge Boston \$112,495 for the rebanding software
    package, which consists of a backbone system (MCM Real Time^TM^ 800
    MHz Recording, Reporting and Reconciliation Rebanding System ©,
    Large Systems Multiple Licenses), two copies of asset management
    software (MCM Real-Time Asset Management Software), two copies of
    report writing software (Report Writer, Run-Time License) and two
    copies of Microsoft SQL.[^42] Boston will receive a license for use
    of the software package during the rebanding period, up to and
    including a future TA audit, after which the license expires.[^43]
    MCM proposes to charge an additional \$71,080 to provide data
    conversion, user training, engineering, and other support
    services,[^44] resulting in a total proposed cost of \$183,575.
    However, because BPD and BTT would be purchasing separate software
    modules, MCM has offered to reduce the total price by \$23,750 as an
    "inter-agency discount," resulting in a final estimated cost of
    \$159,825.[^45] The record shows that excluding the software costs
    in dispute, the parties have agreed to an estimated cost to
    reconfigure the BPD and BTT systems of \$1,140,068.[^46] Thus, even
    at the discounted price, the MCM software package and associated MCM
    service charges represent over twelve percent of the proposed total
    cost associated with retuning the Boston systems---and represent a
    significant expenditure over and above Boston's own internal
    personnel costs. As the Commission has made clear, transactional
    expenses of this magnitude---well in excess of two percent of the
    hard cost of relocation---require us take a "particularly hard look"
    at the request and require Boston to meet a "high burden" of
    justification.[^47]

25. We deny Boston's request for several reasons. First, Boston has not
    demonstrated why it needs to purchase separate software and
    associated services for BPD and BTT, when the MCM software package
    is reportedly designed to accommodate multiple systems and track
    multiple users. Because both the BPD and BTT systems are managed by
    the City of Boston, more centralized management of the rebanding
    process appears possible than what has been proposed, which could
    reduce both software and associated training and installation costs.
    Indeed, Boston states that it intends to utilize MCM software to
    manage the rebanding of "the Trunking system, police department,
    fire department and public works radio systems"[^48] but offers no
    details as to whether it has factored any cost savings into any cost
    proposals for those radio systems that are not part of the BPD and
    BTT systems.[^49] We are concerned that Boston's proposal would lead
    to unnecessary duplication of costs. For example, it appears that
    Boston did not centralize administrative costs associated with
    rebanding of its various systems where reasonably possible.

26. Second, Boston's cost estimates appear to be based on questionable
    assumptions about how much time is needed to perform certain project
    management tasks. Boston claims to have considered and rejected a
    variety of costlier alternatives to the MCM software package,
    including developing customized software, which Boston contends
    would cost in excess of \$250,000. Yet Boston's cost projection for
    this alternative includes over \$167,000 for anticipated data
    review, eliminating duplicative entries, and other data correction,
    which Boston calculates will require nearly an hour per radio.[^50]
    Boston further projects an additional cost of \$59,000 to capture
    anticipated overtime charges. Boston provides no data to support
    these projections, which assume an extremely poor data-entry
    performance. We do not find these estimates to be supported by the
    record.

27. Similarly, Boston contends that it rejected the alternative of
    retaining a third-party contractor such as an accounting firm to
    perform management and tracking tasks because this would entail a
    lengthy and expensive procurement process.[^51] However, under
    Massachusetts law Boston can enter into a contract for up to
    \$24,999 (which is greater than the \$23,725 Boston estimates it
    would spend in developing and testing an off-the-shelf software
    system on its own) via a relatively simple process that only
    requires it to seek three quotes before determining the best
    value-offer.[^52] The record is silent as to whether Boston
    considered this option.

28. The record also is not sufficient to support Boston's contention
    that less costly conventional spreadsheet and database programs
    could not adequately serve Boston's purpose.[^53] Boston has not
    shown that its current means of tracking its radios and managing its
    systems---presumably a computerized process---cannot be used to
    manage rebanding tasks. While we do not require Boston to use an
    off-the-shelf program, the record does not demonstrate that using
    off-the-shelf software would hamper Boston's ability to manage the
    project or would raise data accuracy and security issues. As noted
    in paragraph 21 above, the fact that radios will not need to be
    touched twice reduces the complexity of the project management task
    that software is needed to support, particularly for systems such as
    Boston's that are not unusually large. In addition, most
    off-the-shelf spreadsheet and database programs have some data
    conversion and validation mechanisms that would reduce opportunities
    for data entry error.[^54] These features would also meet Boston's
    need to automatically standardize its data and provide additional
    security that would prevent a data-entry error from corrupting the
    entire database. Similarly, we note that while a spreadsheet
    solution would not allow real-time uploading of data into a central
    database from multiple locations across the city, off-the-shelf
    software typically has the ability to merge spreadsheets or database
    files with similar record fields into a single file. This would
    allow City employees to enter the necessary data into
    password-protected files at multiple locations across the city and
    then upload these files via secure server or encrypted e-mails. It
    is also possible to designate a single computer as the repository of
    the master file and password protect both the file and the computer,
    thus obviating another of Boston's concerns.[^55] In light of these
    factors, we find that Boston has not met its burden of showing that
    the MCM software package represents the least-cost alternative
    available to it.

### Non-Rebanding Benefits of MCM Software Package

29. Finally, the record indicates that if Boston were to acquire the MCM
    software package and associated training, it would receive benefits
    and capabilities beyond those necessary to support the rebanding
    effort MCM software provides significant capabilities for tracking
    and managing of system assets that have led some large public safety
    systems to use it on an ongoing basis without regard to rebanding,
    both for radio and non-radio assets.[^56] The software package
    offered by MCM for rebanding purposes is essentially an upgrade of
    MCM's pre-existing program with certain features specifically
    tailored to the rebanding process. Thus, licensees that choose to
    acquire the software package and receive software training to
    support rebanding will have the ability to use it for non-rebanding
    as well as rebanding purposes during the rebanding period, and a
    significant incentive to continue using the software in the
    post-rebanding environment. Indeed, Sprint presents evidence that
    MCM at one point explicitly marketed the software package with this
    incentive in mind, encouraging licensees to acquire the initial
    package at Sprint's expense and offering to renew the software
    license at a lower price upon the conclusion of rebanding.[^57]

30. It is understandable that licensees would seek to acquire software
    packages like MCM's for rebanding purposes and to make continued use
    of it after rebanding. However, we also find that as a result of the
    capabilities of the software and the associated installation and
    training that is offered, the MCM software confers distinct
    non-rebanding benefits in addition to rebanding-related benefits. We
    recognize that MCM would charge Boston an additional renewal fee for
    post-rebanding use of the MCM software. However, the existence of a
    separate charge for renewal is not dispositive of whether the full
    amount charged for the initial software package is attributable to
    rebanding. The renewal fee is a fraction of the initial product cost
    and merely allows Boston to extend the use of software and training
    capabilities that it has obtained as part of the initial package.
    Moreover, the fact that Sprint will pay rebanding expenses creates
    an incentive to "frontload" the initial software cost in the
    expectation that the licensee will be able to recover the cost from
    Sprint. Accordingly, based on the record presented in this case, it
    would be inappropriate and inconsistent with the Commission's orders
    for Sprint to be compelled to bear the full cost of the initial
    software package.

## Change Order Language

31. We find that the language governing change orders in the BPD FRA
    provides Boston with sufficient protection and should be
    incorporated into the BTT FRA. Therefore, we find in Sprint's favor
    on this issue. In the BPD case, Boston and Sprint informed the
    mediator that they had agreed on all relevant portions of the FRA
    with the exception of the MCM software issue discussed above.[^58]
    In the BTT case, however, Boston seeks to add a sentence to the
    Change Notice procedure that would allow the party submitting a
    change notice to cease performance under the FRA if the other party
    rejects the notice or a mutually agreeable amendment is not approved
    by the TA within thirty days.[^59] Sprint contends that because the
    parties agreed to language governing the change order process in the
    BPD case, that language should bind Boston with regard to the BTT
    system as well.[^60]

32. We conclude that the previously agreed-upon language in the BPD
    agreement is sufficient to address Boston's concern. That language
    provides that if a party objects to a change notice, the parties
    have twenty business days to negotiate a good faith resolution.[^61]
    In the BTT case, Boston seeks language that would give either party
    unilateral authority to cease all performance under the FRA in the
    event that the other party disputes a change order request. We
    believe this language is overbroad. By allowing either party to
    unilaterally cease all performance, this language could lead to
    unnecessary escalation of relatively minor disputes over change
    orders and thereby cause inordinate delay in the rebanding process.
    We conclude that this would frustrate the Commission's directive to
    accomplish band reconfiguration in a timely fashion.

# Ordering Clause

33. Accordingly, pursuant to the authority of Sections 0.131 and 0.331
    of the Commission's rules, 47 C.F.R. §§ 0.131, 0.331; 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.

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

[^1]: The software at issue is MCM's "Real Time™ 800 MHz Recording,
    Reporting and Reconciliation Rebanding System© Software"
    (hereinafter, "MCM software").

[^2]: *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, 15021-45, 15069 ¶¶ 88-141,
    189 (2004) as amended by Erratum, 19 FCC Rcd 19651 (2004)*,* and
    Erratum, 19 FCC Rcd 21818 (2004) (*800 MHz R&O*); Improving Public
    Safety Communications in the 800 MHz Band, *Supplemental Order and
    Order on Reconsideration*, 19 FCC Rcd 25120 (2004) (*800 MHz
    Supplemental Order*)*;* and Improving Public Safety Communications
    in the 800 MHz Band, *Memorandum Opinion and Order*, 20 FCC Rcd
    16015 (2005) as amended by Erratum, DA 05-3061 rel. Nov. 25, 2005
    (*800 MHz MO&O*)*.*

[^3]: The channel change(s) are commonly referred to as a "retuning" of
    the system. In some instances, however, a channel change requires
    that equipment must be replaced rather than retuned. For
    convenience, unless the context requires otherwise, "retuning" as
    used herein also encompasses equipment replacement if existing
    equipment cannot be retuned.

[^4]: Comparable facilities are those that will provide the same level
    of service as the incumbent's existing facilities, with transition
    to the new facilities as transparent as possible to the end user.
    The standards for comparable facilities are: (1) equivalent channel
    capacity; (2) equivalent signaling capability, baud rate and access
    time; (3) coextensive geographic coverage; and (4) operating costs.
    *800 MHz R&O*, 19 FCC Rcd at 15077 ¶ 201.

[^5]: Wireless Telecommunications Bureau Approves the Basic
    Reconfiguration Schedule Put Forth in the Transition Administrator's
    800 MHz Regional Prioritization Plan, *Public Notice*, 20 FCC Rcd
    5159, 5160 (2005).

[^6]: Originally, the mediator was to forward the mediation record and a
    recommended resolution to the Chief of the Public Safety and
    Critical Infrastructure Division (PSCID) of the Commission's
    Wireless Telecommunications Bureau. *See* Wireless
    Telecommunications Bureau Announces Procedures For De Novo Review in
    the 800 MHz Public Safety Proceeding, *Public Notice,* 21 FCC Rcd
    258 (WTB 2006) (*De Novo Procedures PN*). *See also* 47 C.F.R. §
    90.677(d) (2005). However, on September 25, 2006, the Commission
    delegated this authority to the Public Safety and Homeland Security
    Bureau. *See* Establishment of Public Safety and Homeland Security
    Bureau, *Order,* 21 FCC Rcd 10867 (2006).

[^7]: *De Novo Procedures PN,* 21 FCC Rcd at 258 ¶ 4.

[^8]: *Id.* at 258-59 ¶¶ 4, 10.

[^9]: Recommended Resolution, filed July 31, 2006 by the Transition
    Administrator (BPD RR) at 6 n.27.

[^10]: Recommended Resolution, filed October 10, 2006 by the Transition
    Administrator (BTT RR) at 2 and City of Boston Trunking and
    Transportation System, 800 MHz Reconfiguration Cost
    Estimate­-Certified Request (BTT Schedule C) at 4-5. We note that our
    licensing database shows that the license for WQDU213 has expired.

[^11]: BPD RR*.* at 1.

[^12]: BTT RR at 2.

[^13]: The voluntary mediation period began on June 27, 2005, and ended
    on September 26, 2005, and the mandatory negotiation period began on
    September 28, 2005, and ended on December 26, 2005. The parties
    entered into mediation on December 27, 2005, and the BPD and BTT
    System mediations were referred to a common mediator.

[^14]: BPD RR at 22.

[^15]: *See generally* BTT RR.

[^16]: *See* City of Boston Statement of Position, filed October 24,
    2006 at 3 (Boston BTT SOP).

[^17]: *See* ¶ 24 *infra.*

[^18]: *See* Proposed Resolution Memorandum of City of Boston Police
    Department, dated July 13, 2006 at 2 (Boston BPD PRM).

[^19]: *See* Statement of Position of Nextel Communications, Inc., dated
    August 14, 2006 at 3 (Sprint BPD SOP) and Statement of Position of
    Nextel Communications, Inc., dated October 24, 2006 at 3-4 (Sprint
    BTT SOP).

[^20]: *See* Proposed Resolution Memorandum of Nextel Communications,
    Inc., dated July 17, 2006 at 3 (Sprint BPD PRM).

[^21]: Sprint BPD SOP at 3. Sprint did not make a similar offer for the
    BTT system.

[^22]: BPD RR at 11-12.

[^23]: *Id.* at 9.

[^24]: *Id.* at 11-12.

[^25]: BTT RR at 11-18.

[^26]: BTT RR at 12-13. Although the mediator's recommendation in the
    BTT case was in Boston's favor, Boston contends that it is illogical
    for the mediator to recommend that the MCM software only be used for
    the BTT system when Boston intends to use the software for all of
    its rebanding efforts. Thus, Boston reiterates its position that
    Sprint should pay the full cost of the MCM package to manage the
    reconfiguration of both the BPD and BTT systems, not the partial
    cost recommended by the mediator. Boston BTT SOP at 2-3.

[^27]: Boston BTT SOP at 6.

[^28]: *Id.*

[^29]: *See* Proposed Resolution Memorandum Of Nextel Communications,
    Inc. on the Terms and Conditions of the Frequency Reconfiguration
    Agreement, filed September 28, 2006 at 3.

[^30]: BTT RR at 18-19.

[^31]: *800 MHz R&O* 19 FCC Rcd at 15074 ¶ 198; *800 MHz Supplemental
    Order*, 19 FCC Rcd at 25152 ¶ 71; *De Novo Procedures PN,* 21 FCC
    Rcd at 259 ¶ 9.

[^32]: *800 MHz Supplemental Order*, 19 FCC Rcd at 25151 ¶ 70.

[^33]: The TA estimates that there are over thirty 800 MHz public safety
    systems with more than 10,000 radios, and over one-hundred more with
    between 4,000 and 10,000 radios. Boston notes that the State of Utah
    also uses MCM software to manage its statewide system. *See* Boston
    BPD PRM at Appendix B. However, Sprint notes that Utah's system is
    almost seven times larger than the BPD and BTT systems combined.
    Sprint BTT SOP at 12.

[^34]: Boston BPD PRM at 10. There is a similar lack of showing with
    regard to the radios operating on the BTT system that belong to the
    County of Suffolk and the City of Cambridge. BTT Schedule C at 7.

[^35]: Boston BPD PRM at 7.

[^36]: *Id.* at 6.

[^37]: In some systems, more than one touch may be necessary to make
    radios fully operable on the new channels, e.g., in cases where a
    replacement radio is installed in a vehicle and subsequently
    programmed with the new channels and relevant talk groups. However,
    there is no indication in the record of this case that more than one
    touch is required to make the BPD and BTT radios operable on the new
    channels.

[^38]: A similar process applies to radios that are replaced rather than
    retuned. Replacement radios will include both new and old channels
    so that they can operate on the old channels until the system is
    switched to the new channels.

[^39]: It is possible that public safety personnel could inadvertently
    attempt to use the old channels for mobile-to-mobile communications.
    However this remote possibility does not justify the added burden
    and cost of touching the radios a second time. Personnel can readily
    be instructed to use only authorized channels.

[^40]: Boston BPD PRM at 7. Boston derives its estimate of 1.5 public
    safety personnel by noting that mobile units are operated in
    vehicles that have either one or two persons. Assuming this
    calculation to be valid, we do not believe that­---in addition to the
    1.5 public safety personnel---retuning a mobile radio requires more
    than a single radio technician and a single supervisor/dispatcher.
    Thus, a touch of a mobile radio should not require more than an
    average of 3.5 personnel.

[^41]: *Id.* Unlike mobile units, which may be used by two people in a
    vehicle, portable units are hand-held and thus retuning these units
    only requires a single officer or other user of the radio to be
    present.

[^42]: *See* Boston BPD PRM, Appendix A-1.

[^43]: *Id.* at 17.

[^44]: *Id.,* Appendix A-1.

[^45]: *Id.*

[^46]: *See id.*, Appendix C and Schedule C: 800 MHz Reconfiguration
    Cost Estimate-Certified Request City of Boston Trunking and
    Transportation System. This reflects the combined estimated costs of
    \$ 1,288,687 less the cost of the rebanding software and the five
    percent contingency fee associated with the rebanding software built
    into the contract.

[^47]: *800 MHz Supplemental Order*, 19 FCC Rcd at 25151 ¶ 70.

[^48]: Boston BTT SOP at 3. However, Boston's public works system is
    included in the description of the BTT system. *See* BTT RR at 13.

[^49]: In addition to the BTT and BPD systems, the City of Boston is
    reconfiguring three additional 800 MHz systems in Stage 2 of Wave 1.
    These include the City of Boston Fire Department system, the City of
    Boston Public Health Commission system and another system operated
    by the Police Department.

[^50]: Boston originally claimed that its cost to produce an
    off-the-shelf software solution to manage the reconfiguration of the
    PD system would be \$88,970. *See* Supplement to Proposed Resolution
    Memorandum of City of Boston Police Department, dated July 21, 2006,
    at 4-10 (Boston BPD SPRM). However, in its Proposed Resolution
    Memorandum with regard the BTT system, Boston asserted (without any
    supporting documentation) that the future costs of an off-the-shelf
    software solution for the BTT system would be three times that of
    the future costs of the PD system. *See Proposed Resolution
    Memorandum of City of Boston,* dated August 30, 2006 (Boston BTT
    PRM) at 3 n.4; thus based on the record, the estimated cost for some
    aspects of the implementation of an off-the-shelf software project
    management system is four times that of the PD system. Pursuant to
    these figures, Boston projects costs of \$38,925 (approximately
    \$14.60 per radio) to develop and test a database and train
    personnel on how to use the database; it foresees incurring "future
    costs" of \$167,400 (approximately \$60 per radio) and \$59,081
    (approximately \$19 per radio) to "capture estimated overtime
    charges. Boston defines "future costs" as costs involved with the
    manual review of records (1000 hours or over twenty-two minutes per
    radio) responses to errors, questions and problems associated with
    faulty input of data (400 hours or about nine minutes per radio),
    eliminating duplicative entries (320 hours or about seven minutes
    per radio), tracking the effect of and response to the
    aforementioned errors (400 hours or about nine minutes per radio),
    and tracking costs/time/personnel (160 hours or about 3.5 minutes
    per radio. Thus, Boston anticipates spending over fifty-one minutes
    per radio correcting data entry errors. When the additional \$19,200
    of supervisory costs is added in, the \$167,400 cost of this data
    correction is almost \$63 per radio.

[^51]: Boston BPD SPRM at 15-19.

[^52]: *See* Municipal, County, District, and Local Authority
    Procurement of Supplies, Services, and Real Property, Legal
    Requirements, Recommended Practices and Sources of Assistance,
    Office of the Inspector General of the Commonwealth of
    Massachusetts, Aug. 2006 edition at 25-30. This document can be
    found electronically at <http://www.mass.gov/ig/publ/30bmanl.pdf>.
    This five-step procedure is intend to obtain "quotes that are
    flexible, straightforward, and well suited to making small purchases
    rapidly without getting bogged down in paperwork." *Id.* at 25.

[^53]: *See generally* City of Boston, Massachusetts Statement of
    Position, dated August 14, 2006 at 5-9.

[^54]: *See, e.g.,*
    http://office.microsoft.com/en-us/assistance/HA010872281033.aspx

[^55]: Boston BPD Statement of Position at 6 n.4.

[^56]: MCM asserts that its software will allow a licensee to track
    assets ranging from furniture, to vehicles, to firearms, to computer
    hardware, and complex tower locations from acquisition, to
    disposition and every step in between. *See*
    <http://www.mcmtechnology.com/content.asp?id=96697>. MCM also
    reports that the City of Long Beach, California, JCS/Tel-Link, City
    of Seattle, Washington, County of Monroe, New York, County of
    Maricopa, Arizona use MCM software for asset management and work
    flow solutions for some of their radio systems. *See*
    http://www.mcmtechnology.com/studies.asp.

[^57]: *See* Sprint BPD PRM at 11-12. The statement noted by Sprint has
    since been deleted from MCM's website, but the page does describe
    the general function of the software including the ability to assist
    in the inventory and tracking of assets, assist in the development
    of cost estimates and statements of work and assist in managing
    workload tracking functions. MCM's website contains no pricing
    information. *See*
    http://www.mcmtechnology.com/content.asp?id=96700.

[^58]: *See* BTT RR at 18.

[^59]: Boston BTT SOP at 6.

[^60]: Sprint BTT SOP at 16.

[^61]: *See* BTT RR at 19 *citing* Licensee Template PRM, Appendix at 6.