**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+----+------------------------------+
| In the Matter of                 | *  | WT Docket No. 02-55          |
|                                  | *) |                              |
| Improving Public Safety          | ** |                              |
| Communications in the 800 MHz    |    |                              |
| Band                             | *  |                              |
|                                  | *) |                              |
| Sprint Nextel Request for Waiver | ** |                              |
| of June 26, 2008 Rebanding       |    |                              |
| Deadline With Respect to         | *  |                              |
| Channels 1-120                   | *) |                              |
|                                  | ** |                              |
|                                  |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
|                                  |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
|                                  |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
|                                  |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
|                                  |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
+----------------------------------+----+------------------------------+

**ORDER**

**Adopted: June 19, 2008 Released: June 19, 2008**

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

# Introduction

1.  In this order, by delegated authority, we act on the May 1, 2008
    waiver request filed by Sprint Nextel Corporation (Sprint), in which
    Sprint requests to remain temporarily on channels in the
    806-809/851-854 MHz segment of the 800 MHz band (Channels 1-120)
    that will not be required by rebanding public safety licensees until
    after the June 26, 2008 deadline for completion of 800 MHz
    rebanding. We grant Sprint's request to the extent set forth below.

# BACKGROUND

2.  In the *800 MHz Report and Order* and subsequent orders in this
    proceeding, the Commission ordered the rebanding of the 800 MHz band
    to resolve interference between commercial and public safety systems
    in the band.[^1] As one element of rebanding, Sprint agreed to
    vacate all of its spectrum holdings in the Channel 1-120 block,
    which will become the new home for 800 MHz NPSPAC public safety
    licensees as they relocate from the uppermost portion of the 800 MHz
    band.[^2]

3.  In the *Third Memorandum Opinion and Order* in this proceeding, the
    Commission affirmed that Sprint is required to vacate Channels 1-120
    in non-border areas by the end of the 36-month rebanding transition
    period, *i.e*., by June 26, 2008, regardless of whether other
    elements of the rebanding transition are complete.[^3] However, the
    Commission stated that in the event that any NPSPAC licensee
    received a waiver allowing it to relocate to the new NPSPAC band
    after June 26, 2008, Sprint could petition to remain temporarily on
    the corresponding Channel 1-120 channels that it would otherwise
    have to vacate to accommodate the NPSPAC system.[^4] The Commission
    stated that in support of such a waiver request, "Sprint must
    demonstrate that public safety will not be adversely affected by the
    extension, that it has no reasonable alternative, and that the
    extension is otherwise in the public interest."[^5] In addition, any
    extension granted to Sprint under this procedure must require Sprint
    to relinquish the channels on 60 days notice by the NPSPAC licensee
    that it requires the spectrum for testing purposes or to commence
    operations.[^6] Finally, the Commission delegated authority to the
    Public Safety and Homeland Security Bureau (PSHSB) to act on such
    waiver requests.[^7]

4.  On January 17, 2008, the Commission released a *Public Notice* that
    established procedures and provided guidance for submission of
    requests to waive the deadline.[^8] The Commission recommended that
    licensees seeking waivers provide the Commission with a proposed
    timetable for completion of rebanding. However, the Commission also
    recognized that some licensees might be unable to propose a
    timetable because they had not yet negotiated their Frequency
    Reconfiguration Agreements (FRAs) with Sprint. The Commission stated
    that such licensees should file interim waiver requests stating
    "when the licensee anticipates having an FRA and filing a final
    waiver request that will include a proposed timetable."[^9] The
    Commission set March 17, 2008 as the deadline for licensees in Waves
    1 and 2 and April 15, 2008 as the deadline for non-border licensees
    in Waves 3 and 4 to submit either an interim or a final
    request.[^10] The *Public Notice* established that "Sprint may file
    such waiver petition at any time after the corresponding NPSPAC
    petitions are filed, *i.e.*, it does not need to wait to file until
    the Bureau has acted on the corresponding NPSPAC petitions."[^11]

5.  On May 1, 2008, Sprint filed a blanket request for waiver to remain
    on Channel 1-120 channels until NPSPAC licensees that requested
    waivers of the June 26, 2008 deadline are ready to retune their
    systems.[^12] Noting the large number of NPSPAC licensees that had
    filed requests to waive the deadline, Sprint contends that its
    waiver request satisfies the criteria set forth in the *800 MHz*
    *3rd MO&O*. First, Sprint contends that no public safety entity will
    be harmed by grant of the instant waiver because Sprint will apply
    the "60-day rule," *i.e.*, it will relinquish Channel 1-120 channels
    to any NPSPAC licensee within 60 days of being notified that the
    licensee is ready to use the channels.[^13] Sprint also contends
    that it has no reasonable alternative, because requiring it to
    vacate all of its Channel 1-120 channels prematurely would seriously
    degrade its service, including service that some public safety users
    rely upon.[^14] Sprint also argues that granting its request is in
    the public interest because it will promote the Commission's
    objective of minimizing disruption to all incumbents during
    reconfiguration.[^15]

6.  On May 29, 2008, Spectrum Acquisitions, Inc. (SAI) filed an
    opposition to Sprint's waiver request.[^16] SAI argues that Sprint's
    blanket waiver request is an improper attempt to reverse the
    Commission's policy determinations in the *800 MHz* *3rd MO&O* and
    to delay meeting its rebanding obligations.[^17] SAI also argues
    that to obtain relief, Sprint should be required to make a
    "particularized" showing by license, frequency, and region with
    respect to its need to remain on individual Channel 1-120 channels
    past the June 26 deadline.[^18]

7.  On June 11, 2008, Sprint filed a reply to SAI's opposition.[^19]
    Sprint argues that SAI lacks standing to contest Sprint's waiver
    request because SAI is not an 800 MHz licensee and has failed to
    show that it would be harmed by grant of Sprint's request.[^20]
    Sprint also argues that SAI has distorted the record regarding the
    *800 MHz 3rd MO&O* because the Commission expressly contemplated
    that Sprint could file a waiver to remain in the Channel 1-120 band
    in the event NPSPAC licensees did not complete rebanding by June
    26, 2008. Finally, Sprint asserts that it has met the criteria
    established by the Commission for granting Sprint's waiver request,
    and that SAI disregards the adverse impact that a spectrum shortfall
    would have on Sprint's customers.[^21]

8.  On June 17, 2008, PSHSB released a series of orders addressing
    approximately 500 requests by public safety licensees for waiver of
    the June 26, 2008 deadline to complete 800 MHz rebanding.[^22] In
    these orders, the Bureau granted waivers to numerous public safety
    licensees seeking extensions to complete rebanding on or before July
    1, 2009, and granted partial relief to licensees requesting more
    lengthy extensions.[^23] In addition, the Bureau granted interim
    relief to licensees requiring more time to submit proposed
    timetables because they are still in planning or negotiations. The
    Bureau directed these licensees to submit supplemental waiver
    requests with proposed timetables on or before July 18, 2008, after
    which the Bureau will evaluate the requests.[^24]

# Discussion

9.  We address Sprint's waiver request under the waiver criteria set
    forth in the *800 MHz 3rd MO&O.* As a threshold matter, we agree
    with Sprint that SAI lacks standing to oppose Sprint's waiver
    request. In order to establish standing, SAI must demonstrate that
    it will suffer a "direct injury" resulting from grant of the Sprint
    waiver request.[^25] SAI fails to meet this standard because it is
    not an 800 MHz licensee, has not previously participated in this
    proceeding, and does not even allege that it would be injured by
    grant of the Sprint waiver request. Simply filing an opposition
    against Sprint's waiver request on the grounds that granting the
    request would be inconsistent with the *800 MHz 3rd MO&O* does not
    confer standing. Nevertheless, we exercise our discretion to
    consider SAI's opposition as an informal objection.

10. Turning to the merits, we first address whether grant of the
    requested waiver will cause harm to public safety. Sprint contends
    that no public safety entity will be harmed and that rebanding will
    not be delayed because Sprint is prepared to provide replacement
    Channel 1-120 spectrum to any NPSPAC licensee within 60 days of
    being notified that the licensee is ready to retune.[^26] Indeed,
    Sprint asserts that it is ahead of most public safety licensees in
    its readiness to make Channel 1-120 channels available.[^27] We
    agree with Sprint that grant of the waiver will not harm public
    safety. Application of the 60-day rule ensures that all NPSPAC
    licensees will promptly obtain replacement spectrum from Sprint in
    the Channel 1-120 block when they are ready to use it. We also note
    that no public safety licensee has opposed Sprint's request.

11. We are also persuaded that Sprint has demonstrated the absence of
    any reasonable alternative as required by the *800 MHz 3rd MO&O*.
    Sprint states that requiring it to vacate Channel 1-120 channels
    before public safety is prepared to use them would degrade Sprint's
    service, including service that some public safety users rely
    upon.[^28] Sprint also states that relocating its facilities to the
    900 MHz band will not be sufficient to make up for this spectrum
    shortfall and that building additional cell sites is too
    time-consuming and costly. We agree that in light of the large
    number of NPSPAC licensees that will require additional time to
    complete their relocation to the Channel 1-120 band, Sprint does not
    have the practical ability to eliminate this shortfall through use
    of the 900 MHz band or construction of additional cell sites.
    Although Sprint originally claimed that it could deal with spectrum
    shortfalls resulting from the rebanding process, the shortfall has
    proven to be more difficult and pronounced than Sprint anticipated.
    The fact that the Commission established a waiver procedure for
    Sprint in the *800 MHz 3rd MO&O* indicates that it did not intend to
    leave Sprint without recourse under these circumstances.

12. Additionally, we reject SAI's argument that Sprint should be
    required to make a particularized showing of a spectrum shortfall
    with respect to each license, frequency, and region that is the
    subject of an individual waiver request filed by a NPSPAC licensee.
    The *800 MHz 3rd MO&O* did not impose such a requirement, and
    compelling Sprint to file hundreds of individualized waiver requests
    would cause needless delay and administrative burden for both Sprint
    and the Commission.

13. Finally, we find that grant of the requested waiver is otherwise in
    the public interest. We disagree with SAI's contention that grant of
    the waiver constitutes a reversal of the Commission's determination
    that public safety's spectrum needs take precedence over Sprint's
    network capacity needs. In fact, our approach ensures that the
    spectrum needs of NPSPAC licensees will always take precedence
    because they will receive their replacement Channel 1-120 channels
    without delay when they are ready to use them. Moreover, while grant
    of the waiver to Sprint will help it to avoid unnecessary disruption
    of its network and customer service, Sprint must still accept any
    shortfall that may result when it relinquishes Channel 1-120
    spectrum that is needed by public safety.

14. We therefore allow Sprint to continue existing operations on Channel
    1-120 channels that are designated for assignment to licensees
    covered by the waiver orders granting relief to NPSPAC
    licensees,[^29] subject to the following limitations. First, Sprint
    must relinquish any Channel 1-120 channel to the NPSPAC licensee
    with prospective rights to the channel on 60 days notice by the
    NPSPAC licensee that it requires the channel for testing purposes or
    to commence operations. Second, to the extent a Channel 1-120
    channel is not needed to relocate a NPSPAC licensee, Sprint must
    still vacate the channel if (1) the corresponding spectrum 15 MHz
    higher in the 821-824/866-869 MHz band is clear in the region and is
    therefore available for use by Sprint,[^30] or (2) the channel is
    licensed for new post-rebanding NPSPAC facilities.[^31]

15. Additionally, as a condition of the waiver, we require Sprint to
    take the following steps to protect NPSPAC licensees that relocate
    to the Channel 1-120 block from harmful interference while Sprint
    continues to operate on Channel 1-120 channels:[^32]

-   Sprint must provide appropriate co-channel protection to relocating
    NPSPAC licensees pursuant to Section 90.621(b) of the Commission's
    co-channel protection rules.[^33]

-   Sprint must provide adjacent-channel protection to relocating NPSPAC
    licensees in accordance with the standard adopted by the Commission
    in the *800 MHz Second Memorandum Opinion and Order* based on the
    petition filed by NPSPAC Region 8 (New York Metropolitan Area).[^34]

-   Until Sprint has vacated all Channel 1-120 channels in a particular
    NPSPAC region, Sprint must protect relocating NPSPAC licensees in
    the region in accordance with the "interim" interference standard
    specified by the Commission in the *800 MHz Supplemental
    Order*.[^35] In addition, Sprint must employ the additional
    protection methods identified in the *800 MHz Supplemental Order* to
    protect relocating NPSPAC licensees that do not meet the signal
    strength threshold under Commission's interim rule but that do meet
    the threshold under the Commission's final interference rules.[^36]

-   In the event of an interference complaint, Sprint will strictly
    adhere to the Commission's mandated interference response timelines
    and requirements specified in Section 90.674 of the Commission's
    rules.[^37]

# Ordering clause

16. 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 1.925 of the Commission's rules, 47 C.F.R. § 1.925, IT
    IS ORDERED that the request for waiver of the June 26, 2008 deadline
    submitted by Sprint Nextel Corporation IS GRANTED to the extent
    described herein.

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

[^1]: *See* Improving Public Safety Communications in the 800 MHz Band,
    WT Docket 02-55, *Report and Order, Fifth Report and Order, Fourth
    Memorandum Opinion and Order, and Order,* 19 FCC Rcd 14969 (2004)
    (*800 MHz Report and Order*); *Supplemental Order and Order on
    Reconsideration*, 19 FCC Rcd 25120 (2004) (*800 MHz Supplemental
    Order*); *Memorandum Opinion and Order*, 20 FCC Rcd 16015 (2005);
    *Second Memorandum Opinion and Order*, 22 FCC Rcd 10467 (2007).

[^2]: *800 MHz Report and Order*, 19 FCC Rcd at 15077 ¶ 201.

[^3]: Improving Public Safety Communications in the 800 MHz Band, WT
    Docket 02-55, *Third Memorandum Opinion and Order*, 22 FCC Rcd
    17209, 17217-18 ¶ 28 (2007) (*800 MHz 3rd MO&O*). The *800 MHz 3rd
    MO&O* was recently affirmed by the U.S. Court of Appeals. *Sprint
    Nextel Corporation v. FCC*, 524 F.3d 253 (D.C. Cir. 2008).

[^4]: *800 MHz 3rd MO&O*, 22 FCC Rcd at 17217 ¶ 27.

[^5]: *Id.*

[^6]: *Id.*

[^7]: *Id.* at 17223 ¶ 48.

[^8]: Federal Communications Commission Provides Guidance for Submission
    of Requests for Waiver of June 26, 2008 Deadline for Completion of
    800 MHz Rebanding, *Public Notice*, 23 FCC Rcd 664 (2008) (*Waiver
    Guidance Notice*).

[^9]: *Id.* at 666.

[^10]: *Id.* at 665.

[^11]: *Id.*

[^12]: Request for Waiver by Sprint Nextel Corporation, filed May 1,
    2008 (Sprint Waiver Request).

[^13]: Sprint Waiver Request at 3.

[^14]: *Id*.

[^15]: *Id*. at 4.

[^16]: Opposition to Sprint Nextel Waiver Request by Spectrum
    Acquisitions, Inc., filed May 29, 2008 (SAI Opposition).

[^17]: SAI Opposition at 6-8.

[^18]: *Id.*

[^19]: Letter from Regina M. Keeney, on behalf of Sprint Nextel Corp.,
    to Marlene H Dortch, Secretary, FCC (dated June 11, 2008) (Sprint
    Reply).

[^20]: Sprint Reply at 2.

[^21]: *Id*. at 1-3.

[^22]: Improving Public Safety Communications in the 800 MHz Band, WT
    Docket 02-55, *Order*, DA 08-1427 (PSHSB rel. June 17, 2008) (*Wave
    1 Interim Waiver Order*); DA 08-1428 (PSHSB rel. June 17, 2008)
    (*Wave 1 Waiver Order*); DA 08-1429 (PSHSB rel. June 17, 2008)
    (*Wave 2 Interim Waiver Order*); DA 08-1430 (PSHSB rel. June 17,
    2008) (*Wave 2 Waiver Order*); DA 08-1431 (PSHSB rel. June 17, 2008)
    (*Wave 3 Interim Waiver Order*); *Order*, DA 08-1432 (PSHSB rel.
    June 17, 2008) (*Wave 3 Waiver Order*); *Order*, DA 08-1433 (PSHSB
    rel. June 17, 2008) (*Wave 4 Interim Waiver Order*); *Order*, DA
    08-1434 (PSHSB rel. June 17, 2008) (*Wave 4 Waiver Order*).

[^23]: *See Wave 1 Waiver Order* at ¶¶ 4-12; *Wave 2 Waiver Order* at ¶¶
    4-13; *Wave 3 Waiver Order* at ¶¶ 4-9; *Wave 4 Waiver Order* at ¶¶
    4-9.

[^24]: *See Wave 1 Interim Waiver Order* at ¶¶ 5-8; *Wave 2 Interim
    Waiver Order* at ¶¶ 5-9; *Wave 3 Interim Waiver Order* at ¶¶ 5-8;
    *Wave 4 Interim Waiver Order* at ¶¶ 5-9.

[^25]: *See* Hispanic Information Telecommunications Network,
    *Memorandum Opinion and Order*, 18 FCC Rcd 23872, 23879 ¶ 19 (2003)
    ("\[t\]o establish standing, a petitioner must make specific
    allegations of fact sufficient to demonstrate that grant of the
    subject application would cause the petitioner to suffer a direct
    injury").

[^26]: Sprint Waiver Request at 3.

[^27]: *Id.*

[^28]: *Id*.

[^29]: This relief will also be extended automatically to the extent
    that NPSPAC licensees receive additional extensions.

[^30]: Because Sprint uses 25 kHz spaced channels, while NPSPAC uses
    12.5 kHz spaced channels, Sprint may continue to operate on any
    Channel 1-120 channel that is not needed by public safety until the
    corresponding 25 kHz spaced channel is cleared in the
    821-824/866-869 MHz band.

[^31]: In such cases, Sprint must vacate upon 60 days notice from the
    new NPSPAC licensee of readiness to use the channel. *See 800 MHz
    3rd MO&O*, 22 FCC Rcd at 17216 ¶ 23.

[^32]: These conditions are similar to the conditions during the
    transition that govern interference protection of NPSPAC licensees
    that have not yet relocated from the former NPSPAC band
    (821-824/866-869 MHz) as Sprint commences operations in that band.
    *See* Letter from David L. Furth, Associate Chief, Public Safety and
    Homeland Security Bureau, and Joel D. Taubenblatt, Acting Deputy
    Chief, Wireless Telecommunications Bureau, to Larry Krevor, Vice
    President-Spectrum, Sprint Nextel Corp., WT Docket 02-55, 23 FCC Rcd
    7416 (PSHSB/WTB 2008).

[^33]: *See* 47 C.F.R. §90.621(b).

[^34]: *See 800 MHz Second Memorandum Opinion and Order*, 22 FCC Rcd at
    10486 ¶¶ 51-52.

[^35]: *See 800 MHz Supplemental Order*, 19 FCC Rcd at 25137-38 ¶ 39.

[^36]: *Id.* at 25139-40 ¶ 42.

[^37]: 47 C.F.R. § 90.674.