**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+----+------------------------------+
| In the Matter of                 | )  | WT Docket No. 05-302         |
|                                  |    |                              |
| Request for Waiver of            | )  |                              |
| Location-Capable Handset         |    |                              |
| Penetration Deadline by Nextel   | )  |                              |
| Partners, Inc.                   |    |                              |
|                                  | )  |                              |
|                                  |    |                              |
|                                  | )  |                              |
+----------------------------------+----+------------------------------+

**ORDER**

**Adopted: December 21, 2006 Released: January 5, 2007**

By the Commission:

# introduction

1.  In this *Order*, we address a request for relief from the
    Commission's wireless Enhanced 911 (E911) Phase II requirements
    filed by Nextel Partners, Inc. (Nextel Partners),[^1] a Tier I
    wireless service provider.[^2] Specifically, Nextel Partners
    requests a two-year extension of time to comply with the requirement
    in Section 20.18(g)(1)(v) of the Commission's Rules that carriers
    employing a handset-based E911 Phase II location technology must
    achieve 95% penetration, among their subscribers, of
    location-capable handsets by December 31, 2005.[^3]

2.  Timely compliance with the Commission's wireless E911 rules ensures
    that the important public safety needs of wireless callers requiring
    emergency assistance are met as quickly as possible. In analyzing
    requests for extensions of the Phase II deadlines pursuant to our
    waiver authority, the Commission has afforded relief only when the
    requesting carrier has met the Commission's standard for waiver of
    the Commission's rules.[^4] Where carriers have met the standard,
    the relief granted has required compliance with the Commission's
    rules and policies within the shortest practicable time.[^5]

3.  Based on the record before us, we deny Nextel Partners' waiver
    request. As we explain more fully below, Nextel Partners' request
    fails to satisfy the Commission's waiver standards and thus we
    decline to grant the requested two-year extension of the
    Commission's December 31, 2005 95% handset penetration requirement.
    We find that Nextel Partners failed to take sufficient efforts in
    advance of the deadline to assure timely compliance, and has not
    committed to taking additional steps to ensure that it achieves
    compliance as quickly as possible, as evidenced by its poor
    penetration rates even in the months following the December 31, 2005
    deadline. Consequently, we refer the matter of Nextel Partners'
    failure to comply with the handset penetration requirement to the
    Commission's Enforcement Bureau for appropriate enforcement action.

# background

## Phase II Requirements

### General Requirements

4.  The Commission's E911 Phase II rules require wireless licensees to
    provide Public Safety Answering Points (PSAPs) with Automatic
    Location Identification (ALI) information for 911 calls.[^6]
    Licensees can provide ALI information by deploying location
    information technology in their networks (a network-based
    solution),[^7] or Global Positioning System (GPS) or other location
    technology in subscribers' handsets (a handset-based solution).[^8]
    The Commission's rules also establish phased-in schedules for
    carriers to deploy any necessary network components and begin
    providing Phase II service.[^9] However, before a wireless
    licensee's obligation to provide E911 service is triggered, a PSAP
    must make a valid request for E911 service, *i.e.*, the PSAP must be
    capable of receiving and utilizing the data elements associated with
    the service and must have a mechanism in place for recovering its
    costs.[^10]

5.  In addition to deploying the network facilities necessary to deliver
    location information, wireless licensees that elect to employ a
    handset-based solution must meet the handset deployment benchmarks
    set forth in Section 20.18(g)(1) of the Commission's Rules,
    independent of any PSAP request for Phase II service.[^11] After
    ensuring that 100% of all new digital handsets activated are
    location-capable, licensees must achieve 95% penetration, among
    their subscribers, of location-capable handsets no later than
    December 31, 2005.[^12]

### E911 Waiver Standards and the Nextel Phase II Waiver Order

6.  On September 8, 2000, the Commission released the *Fourth MO&O*, in
    which it recognized that "special circumstances" may warrant a
    waiver of the E911 Phase II requirements.[^13] The Commission's
    general waiver standards require a waiver proponent to show that the
    underlying purpose of the rule(s) would not be served or would be
    frustrated by application to the instant case, and grant would be in
    the public interest, or, in view of unique or unusual factual
    circumstances, application of the rule(s) would be inequitable,
    unduly burdensome, or contrary to the public interest, or the
    applicant has no reasonable alternative.[^14] With respect to waiver
    of the E911 Phase II requirements, the Commission required that
    waiver requests must be "specific, focused and limited in scope, and
    with a clear path to full compliance,"[^15] and that requesting
    carriers "should undertake concrete steps necessary to come as close
    as possible to full compliance . . . and should document their
    efforts aimed at compliance in support of any waiver requests."[^16]
    The requirement that carriers present a "clear path to full
    compliance" dictates that we grant relief only when sufficiently
    justified and limit any extension of the handset penetration
    deadline to the shortest practicable time.[^17] We otherwise
    continue to expect carriers to achieve full compliance with the E911
    Phase II requirements as soon as possible.[^18]

7.  In October 2001, Nextel and Nextel Partners sought waiver of the
    E911 handset sale and activation deadlines because delayed
    availability of suitable handsets was hindering their compliance
    with the Commission's Rules.[^19] In response, the Commission
    adopted a Phase II compliance plan jointly proposed by Nextel and
    Nextel Partners finding that extension of those deadlines was
    justified, in part, because Motorola, Inc. (Motorola) was the sole
    source for the specific network technology used by Nextel and Nextel
    Partners and Motorola had not yet completed development of a
    location-capable handset for that technology.[^20] Pursuant to the
    adopted plan, the Commission extended the deadlines for Nextel and
    Nextel Partners with respect to the sale and activation of
    location-capable handsets.[^21] For example, the deadline for
    ensuring that 100% of all new digital handsets activated are
    location-capable was extended for both carriers from December 31,
    2002 to December 1, 2004.[^22]

8.  However, the Commission did not extend the December 31, 2005
    deadline for achieving 95% penetration of location-capable
    handsets.[^23] In accepting their plan, the Commission recognized
    that meeting the December 31, 2005 deadline for 95% penetration
    would "require rapid replacement of old, non-A-GPS handsets with
    A-GPS handsets."[^24] Although the Commission took note of Nextel's
    and Nextel Partners' assertions that the 95% penetration deadline
    would be met because (1) commercial features and 3G services to be
    introduced with A-GPS handsets would provide an incentive for
    customers to upgrade their handsets, and (2) customer churn and
    growth should ensure compliance by December 31, 2005,[^25] the
    Commission expected Nextel and Nextel Partners to comply with the
    December 31, 2005 compliance date even if Nextel's and Nextel
    Partners' estimates of churn, customer acceptance of new features,
    and system growth proved inaccurate.[^26]

9.  In its 2003 *Order to Stay*, [^27] the Commission put carriers on
    notice that any claim based on factors beyond a carrier's control
    would be credited only if the carrier submitted specific evidence
    substantiating the claim, *e.g.,* documentation that, despite a
    carrier's good faith efforts to conclude agreements with outside
    sources whose equipment or services were necessary to meet the
    Commission's benchmarks, it was unable to do so.[^28] Carriers
    claiming that financial hardship prevented compliance with the
    December 31, 2005 95% penetration deadline were advised that a
    waiver was unwarranted unless the carrier provided sufficient and
    specific factual information,[^29] and that a carrier seeking a
    waiver based on extraordinary financial hardship could strengthen
    its justification by submitting documentation demonstrating that it
    has used its best efforts to obtain financing for the required
    upgrades from available Federal, state, or local funding
    sources.[^30] Finally, the Commission stated that it:

    expects all carriers seeking relief to work with the state and local
    E911 coordinators and with all affected PSAPs in their service area,
    so that community expectations are consistent with a carrier's
    projected compliance deadlines. To the extent that a carrier can
    provide supporting evidence from the PSAPs or state or local E911
    coordinators with whom the carrier is assiduously working to provide
    E911 services, this would provide evidence of its good faith in
    requesting relief.[^31]

## Nextel Partners Petition and Comments

### Summary of Petition

10. Nextel Partners uses Motorola's Integrated Digital Enhanced Network
    (iDEN) technology.[^32] Nextel Partners adopted a handset-based
    solution to satisfy its E911 Phase II obligations. It offers service
    under the Nextel brand name in certain mid-sized and rural markets
    where, by agreement with Nextel, it has exclusive rights to
    operate.[^33] Nextel Partners requests a two-year extension of the
    December 31, 2005 deadline for achieving 95% penetration of
    location-capable handsets, *i.e.*, until December 31, 2007.[^34]

11. The Commission previously has viewed Nextel Partners as a joint
    entity with Nextel for purposes of E911 compliance, and considered
    Nextel Partners and Nextel as a single Tier I carrier on that
    basis.[^35] However, Nextel Partners now argues that "circumstances
    have changed that make separate consideration of this current Nextel
    Partners waiver request appropriate."[^36] In particular, Nextel
    Partners argues that the Sprint Nextel merger improved Nextel's
    ability to meet its benchmark in ways that do not apply to Nextel
    Partners. Nextel Partners notes, for example, that while Sprint
    Nextel can leverage the former customer base of Sprint when
    calculating its overall penetration level, Nextel Partners cannot
    rely on those Sprint subscribers, with their high penetration level,
    to assist it in meeting the December 31, 2005 deadline.[^37]

12. Nextel Partners states that, considered on its own, it would not be
    classified as a Tier I nationwide carrier, and that it "is by far
    the smallest carrier classified as 'Tier I' for compliance
    purposes," with approximately 1.7 million subscribers at the end of
    2004.[^38] It points out that, as defined in the Ensuring Needed
    Help Arrives Near Callers Employing 911 Act of 2004 (ENHANCE 911
    Act), a "qualified" Tier III carrier is one with 500,000 or fewer
    subscribers as of December 31, 2001 and asserts that as of that
    date, Nextel Partners "had a base of 515,900 subscribers, only
    slightly above the ENHANCE 911 Act's definition of a Tier III
    carrier."[^39] It argues that "\[t\]he more flexible implementation
    parameters afforded Tier III carriers are unquestionably more
    appropriate than treating Nextel Partners as a Tier I national
    carrier in evaluating the circumstances of this waiver
    request."[^40]

13. Nextel Partners alleges that relief is warranted because, despite
    taking "literally the same actions as \[Nextel\] to meet its E911
    compliance benchmarks," it has been unable to achieve 95%
    penetration due to lower than expected churn and handset replacement
    rates and the impact of the software defect affecting iDEN handsets
    in 2004.[^41] Nextel Partners argues that it "has a lower than
    industry average customer churn rate," which, when considered with
    its shorter timetable from initial A-GPS activations to 95%
    penetration, led to a lower rate of handset replacement than it
    claims the Commission predicted and upon which it based the December
    31, 2005 deadline.[^42] Nextel Partners also reports that on July
    19, 2004, its sole handset vendor, Motorola, notified Nextel
    Partners that a latent problem in the software of a number of
    handset models rendered all A-GPS services unusable.[^43] The
    handset defect can be remedied by "reflashing," *i.e.,* installing
    corrective software in the handset. Nextel Partners also attributes
    the lower rate of handset replacement to customer satisfaction with
    their existing phones, the fact that "\[a\] large portion of Nextel
    Partners' customer base are enterprise or government agency accounts
    that typically have long-term equipment replacement cycles,"[^44]
    and the lack of PSAP readiness in its service area, "thus limiting
    the appeal of A-GPS capable phones in those markets."[^45] Because
    of these factors, Nextel Partners estimates that, even absent the
    software failure in its handsets, it could have achieved only 85%
    penetration by December 31, 2005, and with the software problem it
    expected to have achieved only 74.2% as of that date.[^46] More
    recently, Nextel Partners reports that, as of April 30, 2006, it
    obtained an 80.2% penetration level, which would have been
    approximately 88% had the handset defect not occurred.[^47]

14. Nextel Partners describes the efforts it undertook to reflash or
    upgrade the handsets affected by the software defect, including
    taking "immediate steps to reflash the approximately 170,000 A-GPS
    handsets it then maintained in its inventory," providing "appealing
    incentives" to its customers to reflash their handsets, and mailing
    over 389,000 self-reflash kits to enable subscribers to reflash
    their handsets at their home or office.[^48] Nextel Partners
    indicates that it has thereby reflashed approximately 295,215
    handsets, but that over 200,000 defective handsets remain.[^49] In
    addition to these efforts, it also indicates that it "continues to
    create incentives to encourage customer handset upgrades or
    reflashing."[^50] Finally, it states that "\[i\]n addition to the
    continuation of existing efforts, Nextel Partners has several other
    initiatives in place to ensure a 95 percent penetration rate by
    December 31, 2007."[^51] Nextel Partners argues that these efforts,
    in combination with an anticipated increase in subscriber growth,
    "should guarantee a path to full compliance . . . by December 31,
    2007."[^52]

###  Summary of Comments

15. The Wireless Telecommunications Bureau sought comment on the Nextel
    Partners Request on October 21, 2005.[^53] Motorola and Centennial
    filed comments supporting the request. Motorola argued that it was
    "not appropriate or fair to adhere to a penetration deadline that
    was based on an incorrect estimate \[by the Commission\] of the rate
    of churn," particularly if the cause is that "customers *like their
    phones so much* that they do not want to exchange them."[^54]
    Motorola asserted that Nextel Partners, supported by Motorola, had
    "done everything reasonably possible to meet \[the December 31,
    2005\] deadline and its inability to do so stems from a good faith
    churn rate estimate that turns out (in hindsight) to have been
    overly optimistic when applied to its special user base."[^55] It
    added that "all of these phones (whether they have been reflashed or
    not) should be included as compliant phones in calculating
    achievement of the 95 percent goal" because (1) the phones "have GPS
    E-911 location capability in them and simply need to be reflashed in
    order to again communicate 911 location information," and (2) "every
    user has readily available to him the ability to reflash his phone
    and turn the GPS E-911 location capability of his phone on."[^56]
    Centennial agreed with Nextel Partners' argument that the
    lower-than-anticipated churn rate combined with the impact of the
    software failure established good cause for a waiver. [^57]

16. APCO and NENA also filed comments. APCO noted that "Nextel Partners
    is not even close to meeting the 95% requirement."[^58] Further,
    referring to comments it filed on the Sprint Nextel Request, wherein
    it stated that the "results for the iDEN network are extremely
    troubling, and require close scrutiny by the Commission," APCO
    recommended that we apply the same "exacting level of scrutiny" to
    Nextel Partners' request as to Sprint Nextel's.[^59] Responding to
    Nextel Partners' reliance on a lack of PSAP readiness to support its
    request, NENA pointed out that the rules require carriers to be
    ready independently of the readiness of local PSAPs.[^60] NENA also
    incorporated the comments it made in connection with the Sprint
    Nextel request, in which it noted Nextel's "dilemma" in having to
    rely on a sole handset supplier "whose handsets, even when delivered
    late, betrayed in mid-2004 a software glitch."[^61] NENA also argued
    in its comments on the Sprint Nextel waiver request, however, that
    the Commission placed a "special burden" on Nextel to meet its
    handset penetration commitments "even if market conditions prove
    less than favorable."[^62] Without concluding whether Sprint
    Nextel's efforts met this burden, NENA submitted that the Commission
    should measure Sprint Nextel's (and by extension, Nextel Partners')
    efforts against the efforts of other carriers seeking relief from
    the handset deadline.[^63] NENA stated that it was "not much
    inclined to credit" the efforts to "re-flash" handsets affected by
    the software glitch because "Motorola (and Nextel, by its necessary
    reliance on Motorola) brought on itself the related problems of a
    late start in handset manufacture and the software glitch."[^64]

17. In its comments specific to Nextel Partners, NENA added that the
    number of phones affected by the software problem, which it
    calculated to constitute approximately 40% of Nextel Partners'
    non-location-capable phones, argued against treating these phones as
    compliant regardless of whether their software had been
    upgraded.[^65] NENA advocated that any relief should be no more than
    one year, "with the possibility of extension if quarterly reports
    show acceptable levels of conversion effort."[^66]

# discussion

18. We believe that it was critical for all handset-based carriers to
    have met the final implementation deadline of December 31, 2005 for
    95% location-capable handset penetration, if at all possible, in
    order to allow all stakeholders (including carriers, technology
    vendors, public safety entities, and consumers) to have greater
    certainty about when Phase II would be implemented and ensure that
    Phase II would be fully implemented as quickly as possible.[^67]
    Absent Phase II location data, emergency call takers and responders
    must expend critical time and resources questioning wireless 911
    callers to determine their location, searching for those callers
    when the callers cannot provide this information, or both.[^68]
    Accordingly, when addressing requests for waiver of the 95% handset
    penetration deadline, we remain mindful that delay in achieving the
    required handset penetration level could impair the delivery of
    safety-of-life services to the public. At the same time, however,
    the Commission has recognized that requests for waiver of E911
    requirements may be justified, but only if appropriately limited,
    properly supported, and consistent with established waiver
    standards.[^69]

19. We find that Nextel Partners has failed to meet the Commission's
    standards for waiver of the 95% handset penetration requirement. The
    steps taken by Nextel Partners to meet the December 31, 2005
    deadline were limited and ultimately ineffective in achieving 95%
    penetration, as evidenced by the poor penetration levels obtained by
    Nextel Partners both prior to the deadline and in the months
    following the deadline. Specifically, Nextel Partners achieved a
    penetration rate of only 74.2% by the December 31, 2005 deadline,
    and as of April 30, 2006, had only reached 80.2%. Moreover, Nextel
    Partners' filing lacks a clear path to full compliance with the 95%
    penetration requirement. Nextel Partners' proposals for achieving
    compliance are notably non-specific, equivocal in some instances and
    rest, in large part, on measures that already have proven
    unsuccessful. Accordingly, based on the record before us, we are not
    persuaded that Nextel Partners would meet the required penetration
    level within the requested waiver period even were we to grant the
    two-year extension it seeks.

20. We reject Nextel Partners' argument that the Commission's orders
    granting relief of the 95% penetration requirement to Tier III
    carriers provides a basis for granting Nextel Partners similar
    relief due to its claimed circumstances. Nextel Partners asserts
    that its size as of December 31, 2001 was "only slightly above the
    ENHANCE 911 Act's definition of a Tier III carrier" and argues that
    "\[t\]he more flexible implementation parameters afforded Tier III
    carriers are unquestionably more appropriate than treating Nextel
    Partners as a Tier I national carrier in evaluating the
    circumstances of this waiver request."[^70] Nextel Partners
    concedes, however, that even viewed as a separate carrier, it does
    not qualify as a Tier III carrier.[^71] Congress specifically
    limited the relief available under the ENHANCE 911 Act to
    "qualified" Tier III carriers.[^72] To view Nextel Partners as a
    qualified Tier III carrier when it does not meet this definition
    would run contrary to Congress' express intent. Further, based on
    prior Commission decisions, Nextel Partners knew or should have
    known that the Commission would hold it to the standards of a Tier I
    carrier. Significantly, the *Nextel Phase II Waiver Order* granted
    the same relief and imposed the same conditions on both Nextel and
    Nextel Partners.

21. We also do not credit Nextel Partners' reliance on customer churn as
    justifying its non-compliance with the December 31, 2005 deadline.
    When the Commission adopted a handset penetration requirement in
    1999, it emphasized that, while seeking "largely to rely on market
    forces, coupled with the requirement that new activations be
    ALI-capable, to replace or upgrade handsets," carriers were required
    to take "additional steps to ensure that the public safety goals of
    this proceeding are achieved within a reasonable period regardless
    of normal handset churn."[^73] The Commission specifically suggested
    that such efforts could include "lower rates for customers using
    ALI-capable handsets, rebates or generous allowances to encourage
    trade-ins of non-capable handsets, or actual handset exchanges or
    retrofitting."[^74] Thus, if carriers experience low churn rates,
    they should then take more aggressive affirmative steps to encourage
    adoption of location-capable handsets, rather than simply pointing
    to lower than expected churn levels as a basis for supporting waiver
    relief.[^75] Furthermore, in accepting, as part of Nextel's and
    Nextel Partners' compliance plan, their commitment to comply with
    the December 31, 2005 deadline, the Commission made clear that it
    expected Nextel and Nextel Partners to "do more than simply rely on
    normal handset churn and market trends" to meet their compliance
    obligations.[^76]

22. We equally discount Nextel Partners' argument that lack of Phase II
    capability in some areas justifies its non-compliance. The lack of
    PSAP readiness in some areas to receive and utilize wireless caller
    information does not provide a basis for affording relief from the
    December 31, 2005 deadline. Handset deployment benchmarks operate
    independent of PSAP readiness. In this regard, we agree with NENA
    that location-capable handsets benefit public safety even if the
    customer's local PSAP is not ready for Phase II, due to the mobile
    nature of wireless phones.[^77] When customers travel, a
    location-capable phone provides Phase II service in the many
    communities where PSAPs are, in fact, Phase II ready. Accordingly,
    we find unpersuasive the argument that the state of PSAP readiness
    for Phase II service is a valid consideration when evaluating
    requests for extension of the handset penetration deadline.

23. We do find, however, that the handset defect was an event beyond
    Nextel Partners' practical control and one that affected -- but
    nonetheless did not excuse -- its failure to achieve 95% penetration
    by the December 31, 2005 deadline. In this connection, we are
    persuaded that Nextel Partners experienced an unforeseen and
    unprecedented latent defect unique to iDEN handsets that instantly
    and completely resulted in the handsets' loss of location
    capability. Although we believe that Nextel Partners is responsible
    for its choice of technologies, and thus, at least to some extent,
    for its resulting vulnerability to the software defect,[^78] we find
    that the defect was so unique and unforeseeable that Nextel Partners
    could not reasonably have anticipated the defect when it chose its
    network technology or at any time thereafter prior to the time the
    defect suddenly manifested itself. We also credit Nextel Partners'
    statements that Motorola is the sole source of handsets for iDEN
    networks and that Nextel Partners thus had no alternative but to
    deploy the Motorola product.[^79]

24. A carrier's obligation in an event such as that encountered by
    Nextel Partners is to promptly and aggressively respond once the
    problem is identified. Nextel Partners did so.[^80] In addition to
    reflashing handsets to remedy the defect, it promptly modified its
    network, within six days, so that the defective handsets could at
    least provide Phase I E911 information. Moreover, it quickly
    informed affected PSAPs when the defect manifested itself and
    explained to PSAP personnel, to some extent, how it would address
    the problem.[^81] These early efforts by Nextel Partners signify
    that it did perform commendably, immediately after the defect was
    recognized.

25. Despite our acknowledgment of the software defect, it is not
    controlling in our analysis of Nextel Partners' waiver request. An
    overriding factor is Nextel Partners' admission that it would have
    fallen short of the December 31, 2005 benchmark even had it not
    encountered the software problem. Specifically, even absent the
    defect, Nextel Partners would have achieved only 85% penetration by
    the deadline,[^82] and even as of April 30, 2006, achieved only 88%
    penetration.[^83] Therefore, the software defect notwithstanding,
    Nextel Partners' waiver request had to cite facts sufficient for us
    to determine: (a) that Nextel Partners had made sufficient and
    effective efforts to encourage subscribers to upgrade non-compliant
    handsets and (b) that Nextel Partners has shown us the requisite
    path to full compliance with the 95% penetration requirement. In
    both respects, Nextel Partners has failed to do so. As discussed
    below, Nextel Partners' efforts were both insufficient and
    ineffective. The Nextel Partners Petition is devoid of any concrete
    showings indicative of a path to full compliance. There is no merit
    in the excuses Nextel Partners has offered for its non-compliance.
    We thus are denying its request.

26. Efforts taken by Nextel Partners leading up to the deadline to
    increase handset penetration levels did not result in sufficient
    gains in penetration levels. Nextel Partners states that: (1) "every
    month virtually all Nextel Partners customers receive direct mail
    advertisements highlighting new handset models and their commercial
    A-GPS capabilities;" (2) customers are offered substantial discounts
    on upgraded handsets, and in some cases, free handsets; (3)
    "\[d\]irect outreach efforts target . . . group and government users
    by offering them additional economic incentives to upgrade or
    replace their phones;" and (4) "Nextel Partners systematically
    identifies and calls customers with non-A-GPS phones or
    non-reflashed handsets . . . and offers these customers even more
    attractive upgrades, including discounts of up to \$250 on new A-GPS
    handsets."[^84]

27. Given its low penetration levels, Nextel Partners knew or should
    have known well before December 31, 2005 that its modest efforts to
    meet the deadline were proving inadequate and that more aggressive
    steps were needed to achieve timely compliance. However, Nextel
    Partners has submitted nothing to indicate that it did anything
    other than continue to rely on those demonstrably insufficient
    measures as the deadline approached. For example, to the extent
    Nextel Partners offered free or reduced-price location-capable
    phones as an inducement to its subscribers to upgrade non-location
    capable handsets, Nextel Partners could have eliminated any
    requirement that such customers also accept as a condition of
    receipt of compliant phones a renewed or extended service contract,
    which likely would have improved the effectiveness of its efforts.
    This unresponsiveness is of particular concern because in 2001,
    years before the 2005 deadline, the Commission explicitly warned
    Nextel Partners to undertake "special measures" to assure
    compliance.[^85] Nextel Partners was thus on notice that it would
    need to intensify its efforts to meet the handset penetration
    requirement.

28. The efforts that Nextel Partners states will lead to compliance lack
    specifics and firm commitments. Despite having achieved poor
    location-capable handset penetration levels, Nextel Partners fails
    to delineate specific efforts and firm commitments leading to
    compliance. Significantly, Nextel Partners commits to little in the
    way of additional, more meaningful efforts. It states that its
    future efforts will include "continued direct marketing to virtually
    every Nextel Partners customer" as well as "mass advertisements
    highlighting new handset models and their A-GPS capabilities."[^86]
    It also asserts that "customers are offered substantial discounts on
    upgraded handsets and in some cases will be offered free
    handsets."[^87] However, these promises offer no more than its
    efforts to date, which have thus far proven inadequate.[^88] Nextel
    Partners' plans are not specific and lack firm schedules. For
    example, Nextel Partners notes it "will target Nextel Partners'
    group and government users by offering them additional economic
    incentives," and that it is "working with Motorola to develop
    promotional plans that could, for example, include cash payments for
    upgrading handsets."[^89] In light of the fact that Nextel Partners'
    penetration rate, as of December 31, 2005, was only 74.2% and, as
    late as April 30, 2006, was still only at 80.2%,[^90] its proposals
    leave us particularly unconvinced that it has a clear path to full
    compliance, much less that it has undertaken "concrete steps
    necessary to come as close as possible to full compliance."[^91]

29. Motorola, in comments, claims Nextel Partners has done "everything
    reasonably possible to meet this deadline . . . ."[^92] We disagree.
    Other carriers already have undertaken or committed to specific
    efforts beyond those described by Nextel Partners. For example,
    Puerto Rico Telephone Company d/b/a Verizon Wireless Puerto Rico
    (PRTC), a Tier III carrier, indicated that, as the deadline
    approached, it added to its existing efforts a campaign to call all
    customers with non-GPS-capable handsets and offer them (1) a choice
    between two free GPS-compliant handsets with the renewal of the
    customer's contract; (2) a one-year contract term rather than two
    years; and (3) 100 free minutes per month for three months.[^93]
    Similarly, Great Lakes of Iowa, another Tier III carrier, stated in
    a pleading filed with the Commission that, as part of its efforts to
    achieve 95% penetration, it "called each TDMA and analog customer
    and, as an incentive to migrate to the CDMA network, offered them a
    free location capable phone and a month of free service if they
    upgraded their phones," and also "offered to waive its two-year
    contract term, allowing these customers to upgrade to a free phone
    before their contracts would normally award another free
    phone."[^94] Other Tier III carriers also have permitted handset
    upgrades without requiring any contract extension and offered
    discounts on accessories.[^95] Although not exhaustive, these
    examples illustrate more aggressive efforts that Nextel Partners
    could have taken to ensure timely compliance with the 95%
    requirement. Furthermore, these efforts were undertaken by Tier III
    carriers with presumably fewer resources than Nextel Partners, a
    Tier I carrier.[^96] We conclude, based on the totality of the
    circumstances, that, in light of the achieved levels of penetration,
    Nextel Partners' efforts have been so insufficient that we must deny
    relief. Nextel Partners' 74.2% penetration level by the December 31,
    2005 penetration deadline, and only 80.2% as of April 30, 2006,
    warrant referral of the matter to the Commission's Enforcement
    Bureau for appropriate action.

30. *Reporting Requirements.* In order to closely monitor and assess the
    status of Nextel Partners' efforts toward compliance with the E911
    requirements, including the 95% handset penetration requirement, we
    require Nextel Partners to:

-   Submit to the Commission quarterly status reports, beginning
    February 1, 2007 and until Nextel Partners achieves 95% handset
    penetration. These reports must include detailed information that
    describes and discusses with specificity: (1) Nextel Partners'
    efforts to encourage customers to upgrade to location-capable
    handsets; and (2) the percentage of Nextel Partners customers with
    location-capable handsets.

-   Within five days of achieving a 95% handset penetration rate, submit
    to the Commission a letter certifying Nextel Partners' full
    compliance with Section 20.18(g)(1)(v).

-   Submit to the Commission quarterly reports (every February 1, May 1,
    August 1 and November 1), beginning February 1, 2007, which shall
    include the following information: (1) the number and status of
    Phase II requests from PSAPs (including those requests it may
    consider invalid); and (2) the estimated dates on which Phase II
    service will be available to PSAPs served by Nextel Partners'
    network. These quarterly reports must be filed until one year after
    Nextel Partners certifies compliance with the 95% handset
    penetration requirement.[^97]

    We note that these requirements may be modified by a future action
    taken by the Enforcement Bureau.

# conclusion

31. It is amply clear that the measures Nextel Partners took in the past
    or promises for the future fall short of satisfying the Commission's
    criteria for waiver of the December 31, 2005 deadline. We therefore
    deny the request of Nextel Partners for a two-year waiver of its
    obligation to ensure that 95% of its customers have location-capable
    handsets. We also find that Nextel Partners' conceded failure to
    meet the December 31, 2005 deadline should be addressed through the
    enforcement process. The Commission previously has placed carriers
    on notice that referrals may be made to the Enforcement Bureau for
    failure to comply with an applicable Phase II deadline, even when
    requests for relief are submitted in advance of deadlines set forth
    in the Commission's Rules or orders.[^98]

# PAPERWORK REDUCTION ACT 

32. This document contains a new information collection requirement
    subject to the Paperwork Reduction Act of 1995 (PRA), Public Law
    104-13. It has been submitted to the Office of Management and Budget
    (OMB) for review under Section 3507(d) of the PRA. OMB, the general
    public, and other federal agencies were invited to comment on the
    new information collection requirements contained in this
    proceeding. In addition, we note that pursuant to the Small Business
    Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C.
    3506(c)(4), we previously sought specific comment on how the
    Commission might "further reduce the information collection burden
    for small business concerns with fewer than 25 employees."

# ordering clauses

33. Accordingly, IT IS ORDERED, pursuant to Sections 1.3 and 1.925 of
    the Commission's rules, that the foregoing *Order* IS ADOPTED.

34. IT IS FURTHER ORDERED that the Petition for Limited Waiver by Nextel
    Partners, Inc., filed Oct. 21, 2005, IS DENIED.

35. IT IS FURTHER ORDERED that Nextel Partners is subject to the
    reporting requirements specified herein.

36. IT IS FURTHER ORDERED that the matter of the non-compliance of
    Nextel Partners with Section 20.18(g)(1)(v) of the Commission's
    Rules SHALL BE REFERRED to the Commission's Enforcement Bureau for
    appropriate actions.

FEDERAL COMMUNICATIONS COMMISSION

Marlene H. Dortch

Secretary

**APPENDIX**

**Comments and Reply Comments**

[Comments]{.underline}

Association of Public-Safety Communications Officials-International,
Inc. (APCO)

Centennial Communications Corp. (Centennial)

Motorola, Inc. (Motorola)

National Emergency Number Association (NENA)

[Reply Comments]{.underline}

National Emergency Number Association (NENA)

Nextel Partners, Inc. (Nextel Partners)

[^1]: *See* Petition for Limited Waiver of Nextel Partners, Inc., WT
    Docket No. 05-302, filed Oct. 21, 2005 (Nextel Partners Petition).
    In August 2005, the Commission granted applications filed by Nextel
    Communications, Inc. (Nextel) and Sprint Corporation (Sprint) for
    consent to transfer control of all licenses and authorizations held
    directly and indirectly by Nextel to Sprint. *See* Applications of
    Nextel Communications, Inc. and Sprint Corporation for Consent to
    Transfer Control of Licenses and Authorizations*,* WT Docket No.
    05-63, *Memorandum Opinion and Order*, 20 FCC Rcd 13967 (2005).
    Further, in June 2006, the Commission granted applications filed by
    Sprint Nextel and Nextel Partners for consent to transfer control of
    all licenses and authorizations held indirectly by Nextel Partners
    to Sprint Nextel. *See* Applications of Nextel Partners, Inc.,
    Transferor, and Nextel WIP Corp. and Sprint Nextel Corporation,
    Transferees, for Consent to Transfer Control of Licenses and
    Authorizations*,* File Nos. 0002444650, 0002444656, 0002456809,
    *Memorandum Opinion and Order*, 21 FCC Rcd 7358 (2006). The parties
    consummated this transaction on June 27, 2006. *See* File No.
    0002444650. Sprint Nextel also has filed a request for waiver of the
    95% handset penetration deadline. *See* Sprint Nextel Corporation
    Request for Limited Waiver, WT Docket No. 05-286, filed Sept. 29,
    2005 (Sprint Nextel Request). Because Sprint Nextel and Nextel
    Partners were separate entities as of the relevant compliance
    deadline, we address the Sprint Nextel and Nextel Partners waiver
    requests in separate orders.

[^2]: Tier I carriers are Commercial Mobile Radio Service (CMRS)
    providers with nationwide footprints. *See* Revision of the
    Commission's Rules to Ensure Compatibility with Enhanced 911
    Emergency Calling Systems; Phase II Compliance Deadlines for
    Non-Nationwide Carriers, CC Docket No. 94-102, *Order to Stay*, 17
    FCC Rcd 14841, 14843 ¶ 7 (2002) (*Non-Nationwide Carriers Order*).
    In the *Non-Nationwide Carriers Order*, the Commission found that
    there were six carriers with national footprints, including Nextel.
    *Id.* For purposes of this Tier I status, the Commission treated
    Nextel and Nextel Partners as a joint entity because of the unique
    characteristics of the network technology they both used and the
    fact that the two carriers had requested treatment as a joint entity
    when they previously had sought relief from the E911 deadlines.
    *See* *id.* at 14843 n.14.

[^3]: *See* 47 C.F.R. § 20.18(g)(1)(v); Nextel Partners Petition at 2.

[^4]: *See* Wireless E911 Phase II Implementation Plan of Nextel
    Communications, Inc., CC Docket No. 94-102, *Order*, 16 FCC Rcd
    18277, 18281-86 ¶¶ 13-30 (2001) (*Nextel Phase II Waiver Order*);
    Request for Waiver by Sprint Spectrum L.P. d/b/a Sprint PCS, CC
    Docket No. 94-102, *Order*, 16 FCC Rcd 18330, 18335-38 ¶¶ 15-26
    (2001); Request for Waiver by Verizon Wireless, CC Docket No.
    94-102, *Order*, 16 FCC Rcd 18364, 18369-74 ¶¶ 16-26 (2001); Request
    for Waiver by AT&T Wireless Services, Inc., CC Docket No. 94-102,
    *Order*, 16 FCC Rcd 18253, 18257-59 ¶¶ 13-19 (2001); Request for
    Waiver by Cingular Wireless LLC, CC Docket No. 94-102, *Order*, 16
    FCC Rcd 18305, 18308-11 ¶¶ 14-20 (2001); Revision of the
    Commission's Rules to Ensure Compatibility with Enhanced 911
    Emergency Calling Systems; E911 Phase II Compliance Deadlines for
    Tier III Carriers, CC Docket No. 94-102, *Order*, 20 FCC Rcd 7709,
    7709-7710 ¶ 1 (2005) (*Tier III Carriers Order*). Tier III carriers
    may be entitled to relief pursuant to the Commission's waiver
    standard or, alternatively, the ENHANCE 911 Act, which directs the
    Commission to grant waivers for Tier III carriers of the 95%
    penetration benchmark if "strict enforcement . . . would result in
    consumers having decreased access to emergency services." National
    Telecommunications and Information Administration Organization Act
    -- Amendment, Pub. L. No. 108-494, 118 Stat. 3986 (2004) (ENHANCE
    911 Act). The ENHANCE 911 Act defines a "qualified Tier III carrier"
    as "a provider of commercial mobile service (as defined in section
    332(d) of the Communications Act of 1934 (47 U.S.C. 332(d)) that had
    500,000 or fewer subscribers as of December 31, 2001." *Id.* at §
    107(b), 118 Stat. 3986, 3991.

[^5]: *See Tier III Carriers Order*, 20 FCC Rcd at 7709-7710 ¶ 1.

[^6]: *See* 47 C.F.R. § 20.18(e).

[^7]: Network-based location solutions employ equipment and/or software
    added to wireless carrier networks to calculate and report the
    location of handsets dialing 911. These solutions do not require
    changes or special hardware or software in wireless handsets. *See*
    47 C.F.R. § 20.3, *Network-based Location Technology*.

[^8]: Handset-based location solutions employ special
    location-determining hardware and/or software in wireless handsets,
    often in addition to network upgrades, to identify and report the
    location of handsets calling 911. *See* 47 C.F.R. § 20.3,
    *Location-Capable Handsets.*

[^9]: *See* 47 C.F.R. § 20.18(f), (g)(2).

[^10]: *See* 47 C.F.R. § 20.18(j)(1).

[^11]: *See* 47 C.F.R. § 20.18(g)(1).

[^12]: *See* 47 C.F.R. § 20.18(g)(1)(v).

[^13]: *See* Revision of the Commission's Rules to Ensure Compatibility
    with Enhanced 911 Emergency Calling Systems, CC Docket No. 94-102,
    *Fourth Memorandum Opinion and Order*, 15 FCC Rcd 17442, 17457 ¶ 43
    (2000) (*Fourth MO&O*).

[^14]: *See* 47 C.F.R. § 1.925(b)(3). *See also* *WAIT Radio v. FCC*,
    418 F.2d 1153 (D.C. Cir. 1969), *appeal after remand*, 459 F.2d 1203
    (D.C. Cir. 1972), *cert. denied*, 409 U.S. 1027 (1972); *Northeast
    Cellular Tel. Co. v. FCC*, 897 F.2d 1164 (D.C. Cir. 1990); 47 C.F.R.
    § 1.3.

[^15]: *Fourth MO&O*, 15 FCC Rcd at 17458 ¶ 44.

[^16]: *Id.*

[^17]: *See* *Tier III Carriers Order*, 20 FCC Rcd at 7709-7710 ¶ 1;
    *Non-Nationwide Carriers Order*, 17 FCC Rcd at 14842-14843 ¶ 6.

[^18]: *See* *Fourth MO&O*, 15 FCC Rcd at 17458 ¶ 45.

[^19]: *See* *Nextel Phase II Waiver Order*.

[^20]: *See id.* at 18279 ¶¶ 8, 9, 18283-84 ¶ 19.

[^21]: *See id.* at 18289 ¶ 37.

[^22]: *See id.*

[^23]: *See id.* at 18284 ¶ 20, 18289 ¶ 37.

[^24]: *Id.* at 18284 ¶ 22.

[^25]: *Id.*

[^26]: *Id*. at 18285 ¶ 23.

[^27]: *See* Revision of the Commission's Rules to Ensure Compatibility
    with Enhanced 911 Emergency Calling Systems; E911 Compliance
    Deadlines for Non-Nationwide Tier III CMRS Carriers, CC Docket No.
    94-102, *Order to Stay*, 18 FCC Rcd 20987 (2003) (*Order to Stay*).

[^28]: *Id.* at 20996-20997 ¶ 25.

[^29]: *See id*. at 20997 ¶ 29. The Commission noted that it generally
    is disinclined to find that financial hardship alone is a sufficient
    reason for an extension of the E911 implementation deadlines. *Id.*

[^30]: *See id*.

[^31]: *See id.* at 20997 ¶ 28.

[^32]: Nextel Partners Petition at 3.

[^33]: *Id*.

[^34]: *Id.* at 2.

[^35]: *See* *supra* note 2. *See also* Nextel Partners Petition at 6.
    We note that Nextel and Nextel Partners jointly proposed the Phase
    II compliance plan adopted in the *Nextel Phase II Waiver Order*,
    and both carriers were granted extensions of the handset sale and
    activation deadlines. *See supra* ¶ 7.

[^36]: Nextel Partners Petition at 6.

[^37]: *See id.* at 7.

[^38]: *Id.* at 5.

[^39]: *See* *id.* at 5 & n.10 (citing National Telecommunications and
    Information Administration Organization Act -- Amendment, Pub. L.
    No. 108-494, § 107(b), 118 Stat. 3986, 3991 (2004)). *See also
    supra* n.4.

[^40]: Nextel Partners Petition at 24.

[^41]: *See* *id.* at 7, 13-19.

[^42]: *See id*. at 16-19.

[^43]: *See id*. at 19.

[^44]: *Id.* at 17-18.

[^45]: *Id.* at 10.

[^46]: *Id.* at 15, 17.

[^47]: *See* Nextel Partners, Inc. Phase I and Phase II E911 Quarterly
    Report, CC Docket No. 94-102, filed May 1, 2006, at 12.

[^48]: *See* Nextel Partners Petition at 21.

[^49]: *See* *id*. at 20-22.

[^50]: *See* Nextel Partners Reply at 5 (noting direct mail
    advertisements, discounted or free handset offers, targeted outreach
    to group and government users, and calls to customers with non-A-GPS
    or non-reflashed handsets with "even more attractive upgrades").

[^51]: Nextel Partners Petition at 22-23.

[^52]: *Id.* at 23.

[^53]: *See* Wireless Telecommunications Bureau Requests Comment on
    Nextel Partners Petition for Limited Waiver of the December 31, 2005
    Deadline to Achieve Ninety-Five Percent Penetration of
    Location-Capable Handsets Among its Subscribers, WT Docket No.
    05-302, *Public Notice*, 20 FCC Rcd 16588 (Wireless. Tel. Bur.
    2005). Comments were due Nov. 4, 2005, and reply comments were due
    Nov. 14, 2005.

[^54]: Motorola Comments on Nextel Partners Petition at 3 (emphasis in
    original).

[^55]: *Id.*

[^56]: *Id.* at 4.

[^57]: *See* Centennial Comments on Nextel Partners Petition at 3-4. In
    addition, Nextel Partners submitted a letter supporting its petition
    from the Santa Rosa County Sheriff's Office. *See* Nextel Partners
    Petition, Ex. 1.

[^58]: *See* APCO Comments on Nextel Partners Petition at 2.

[^59]: *See id*.

[^60]: *See* NENA Comments on Nextel Partners Petition at 1-2.

[^61]: NENA Comments on Sprint Nextel Request at 3.

[^62]: *See* *id.* at 8 (citing *Nextel Phase II Waiver Order*, 16 FCC
    Rcd at 18285 ¶ 23).

[^63]: *See id*.

[^64]: *See* *id.* at 9.

[^65]: *See* NENA Comments on Nextel Partners Petition at 3.

[^66]: *Id.* at 3-4.

[^67]: *See* *Non-Nationwide Carriers Order*, 17 FCC Rcd at 14853 ¶ 38.

[^68]: Phase I E911 service provides a PSAP with data elements
    containing the telephone number of the originator of the 911 call
    and the location of the cell site or base station receiving the 911
    call. *See* 47 C.F.R. § 20.18(d). Thus, the actual location of the
    caller can be miles distant from the location information provided
    to the PSAP, with consequent delay in providing the caller with
    emergency services, assuming that the caller actually can be
    located. Phase II service, by comparison, has a required location
    accuracy of 100 meters for 67% of calls and 300 meters for 95% of
    calls (for a network-based location solution) or 50 meters for 67%
    of calls and 150 meters for 95% of calls (for a handset-based
    location solution). *See* 47 C.F.R. § 20.18(h)(1)-(2).

[^69]: *See* *Tier III Carriers Order*, 20 FCC Rcd at 7709-7710 ¶ 1;
    *Non-Nationwide Carriers Order*, 17 FCC Rcd at 14842-14843 ¶ 6.

[^70]: Nextel Partners Petition at 5, 24.

[^71]: *See* *id*. at 5.

[^72]: *See supra* n.4.

[^73]: Revision of the Commission's Rules to Ensure Compatibility with
    Enhanced 911 Emergency Calling Systems, CC Docket No. 94-102, *Third
    Report and Order*, 14 FCC Rcd 17388, 17412 ¶ 52 (1999).

[^74]: *Id.* at 17413 ¶ 53.

[^75]: Nextel Partners' generalized assertions that it has a unique
    customer base, and that certain customers resist upgrading to
    location-capable handsets, prove only that it should have undertaken
    more aggressive efforts tailored to its customer base and the
    measures necessary to overcome any resistance to upgrading to
    location-capable phones.

[^76]: *Nextel Phase II Waiver Order*, 16 FCC Rcd at 18285 ¶ 23. *See*
    Joint Petition of CTIA and the Rural Cellular Association for
    Suspension or Waiver of the Location-Capable Handset Penetration
    Deadline, WT Docket No. 05-288, *Order*, FCC 06-59, ¶ 23 (rel. Jan.
    5, 2007) (*CTIA/RCA Order*) ("if carriers experienced low churn
    rates, . . . they should have then taken 'more aggressive
    affirmative steps' to encourage adoption of location-capable
    handsets, rather than simply pointing to lower than expected churn
    levels as a basis for supporting waiver relief.").

[^77]: *See* NENA Comments in WT Docket No. 05-288 (filed Oct. 21, 2005)
    at 4. *See also CTIA/RCA Order* at ¶ 22.

[^78]: *See* NENA Comments on Sprint Nextel Request at 9.

[^79]: *See* Nextel Partners Petition at 5.

[^80]: *See* *id*. at 22-23.

[^81]: *See id*. at 19-20.

[^82]: *See* Nextel Partners Petition at 17.

[^83]: *See* Nextel Partners, Inc. Phase I and Phase II E911 Quarterly
    Report, CC Docket No. 94-102, filed May 1, 2006, at 12.

[^84]: *See* Nextel Partners Reply at 5.

[^85]: *See* *Nextel Phase II Waiver Order*, 16 FCC Rcd at 18285 ¶ 23.

[^86]: Nextel Partners Petition at 23.

[^87]: *Id.*

[^88]: *See* Nextel Partners Petition at 13 (basing its two-year
    extension request on "current trends in its customer churn rate and
    *the continuation of aggressive handset upgrade incentive
    programs*") (emphasis added).

[^89]: *Id.* at 23.

[^90]: *See* Nextel Partners, Inc. Phase I and Phase II E911 Quarterly
    Report, CC Docket No. 94-102, filed May 1, 2006, at 12.

[^91]: *See* *Fourth MO&O*, 15 FCC Rcd at 17458 ¶44.

[^92]: Motorola Comments on Nextel Partners Petition at 3.

[^93]: *See* Letter from Suzanne Yelen, Wiley Rein & Fielding LLP, to
    Marlene H. Dortch, Secretary, Federal Communications Commission, CC
    Docket No. 94-102, filed Dec. 23, 2005, at 1.

[^94]: *See* Great Lakes of Iowa, Inc. d/b/a CellularOne Petition for
    Temporary and Limited Waiver of Section 20.18(g)(1)(v) of the
    Commission's Rules, CC Docket No. 94-102, filed Nov. 10, 2005, at
    2-3.

[^95]: *See*, *e.g.*, Cable & Communications Corporation, August 1, 2006
    Report, CC Docket No. 94-102, filed July 28, 2006, at 2 (offered
    free phone, free activation and 10% discount on accessory purchases
    with two year contract); Washington RSA No. 8 Limited Partnership
    Quarterly E911 Status Report, CC Docket No. 94-102, filed August 1,
    2006, at 2-3 (discount on new phone without contract extension and
    500 bonus minutes).

[^96]: We also note that carriers have a history of upgrading their
    networks to more advanced air interfaces, such as from analog and
    TDMA systems to CDMA and GSM, and have been quite successful in
    convincing customers to change handsets to accommodate the new air
    interface, effectively requiring current customers to change out
    their handsets in order to continue receiving service.

[^97]: Because Sprint Nextel and Nextel Partners are now the same
    company, they may elect to file a consolidated report, *i.e.*, with
    the overall location-capable handset penetration figure for the
    combined company.

[^98]: *See* Revision of Commission's Rules to Ensure Compatibility with
    Enhanced 911 Emergency Calling Systems, CC Docket No. 94-102,
    *Order*, 18 FCC Rcd 21838, 21844 ¶ 12 (2003) ("A carrier may seek a
    waiver in advance of a deadline in the Phase II rules or its
    compliance plan. However, the carrier always becomes liable for
    possible enforcement action if it fails to comply with an applicable
    Phase II deadline. Referral to the Enforcement Bureau when such an
    apparent violation is reported, or otherwise appears likely, is a
    normal and familiar exercise of the Commission's authority and
    discretion").