DA 06-1370

June 30, 2006

**REMINDER TO 800 MHZ "WAVE THREE" CHANNEL 1-120 LICENSEES OF THEIR BAND
RECONFIGURATION NEGOTIATION AND MEDIATION OBLIGATIONS**

**WT Docket No. 02-55**

Pursuant to the *800 MHz Report and Order* and subsequent orders in this
docket[^1], the mandatory negotiation period for 800 MHz Channel 1-120
licensees in Wave 3 of the band reconfiguration process ends on July 2,
2006.[^2] Licensees in this wave who do not complete negotiation of
frequency reconfiguration agreements with Sprint Nextel Corporation
(Sprint Nextel) by the July 2 deadline will be referred to mandatory
mediation of disputed issues under the Alternative Dispute Resolution
procedures established by the 800 MHz Transition Administrator (TA).[^3]
Pursuant to those procedures, the mediation process must be concluded
within thirty working days. If the parties to mediation fail to reach a
mediated agreement, the TA will forward the record to the Chief of the
Public Safety and Critical Infrastructure Division (PSCID), along with a
recommended resolution of the dispute.[^4] The Chief of PSCID will then
rule on the disputed issues *de novo*.[^5] Either party may appeal the
Chief's decision; such appeals will be designated for a hearing before a
Commission Administrative Law Judge.[^6]

The Wireless Bureau reminds Wave 3 800 MHz licensees subject to the
above procedures of the following obligations imposed by the *800 MHz
Report and Order*:

-   In all negotiations and mediation between 800 MHz licensees and
    Sprint Nextel, the parties must negotiate in the utmost good faith.
    Among the factors relevant to a good faith determination are: (1)
    the steps the parties have taken to determine the actual cost of
    relocation to comparable facilities; (2) whether the party
    responsible for paying the cost of band reconfiguration has made a
    *bona fide* offer to relocate the incumbent to comparable
    facilities; and (3) whether either party has unreasonably withheld
    information, essential to the accurate estimation of relocation
    costs and procedures, requested by the other party.[^7] Refusal by
    any party to enter into mandatory negotiations or participate in
    mediation is presumptively a failure to negotiate in good faith.

-   Licensees in mediation must comply with the schedules, procedures,
    and directions of the TA or the TA's designated mediator.[^8]

-   Any licensee that fails to negotiate or mediate in good faith is
    potentially subject to Commission sanctions, including involuntary
    relocation and license modification to the extent necessary to
    implement band reconfiguration consistent with the *800 MHz Report
    and Order.* The cost of implementing such modification will be borne
    by the licensee.[^9]

-   Licensees that enter mediation with Sprint Nextel are entitled to
    reimbursement of "reasonable, prudent and necessary costs and
    expenses" associated with reaching a mediated frequency
    reconfiguration agreement. However, licensees who fail to reach a
    mediated agreement must bear their own costs in further
    administrative or judicial appeals of band reconfiguration issues,
    including *de novo* review by PSCID and appeal of any such review
    before an ALJ.[^10]

We urge the parties to be mindful of these obligations and potential
costs as they participate in the mediation process, and we encourage
them to exercise their best efforts to reach a mutually acceptable
agreement through mediation.

Information on the 800 MHz band reconfiguration process may be obtained
by accessing the TA web site at [www.800ta.org](http://www.800ta.org/).
For additional information, visit the WTB web site at
[www.800mhz.gov](http://www.800MHz.gov/). If you have questions after
consulting these resources, call WTB at 1-877-480-3201 and select option
2, or use the WTB web site [esupport.fcc.gov]{.underline} to e-mail
questions.

Action by the Chief, Public Safety and Critical Infrastructure Division,
Wireless Telecommunications Bureau.

-   FCC --

[^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*); Improving Public Safety Communications
    in the 800 MHz Band, *Supplemental Order and Order on
    Reconsideration*, WT Docket No. 02-55, 19 FCC Rcd 25120 (2004) (*800
    MHz* *Supplemental Order*) and Improving Public Safety
    Communications in the 800 MHz Band, *Memorandum Opinion and Order*,
    WT Docket 02-55, 20 FCC Rcd 16015 (2005).

[^2]: *See* "Wireless Telecommunications Bureau Announces that 800 MHz
    Band Reconfiguration Will Commence January 3, 2006, in the NPSPAC
    Regions Assigned to Wave 3," *Public Notice*, DA 05-3134, released
    December 2, 2005 (*Wave 3 Starter PN*). Under the band
    reconfiguration plan, each of the fifty-five National Public Safety
    Planning Advisory Committee (NPSPAC) regions is assigned to one of
    four basic "prioritization waves" with staggered approximate
    starting dates. *See* "Wireless Telecommunications Bureau Approves
    the Basic Reconfiguration Schedule Put Forth in the Transition
    Administrator's 800 MHz Regional Prioritization Plan," *Public
    Notice*, DA 05-619, released March 11, 2005. The three-month
    voluntary negotiation period for Channel 1-120 licensees in Wave 3
    began on January 3, 2006, and the three month mandatory negotiation
    period for these licensees began April 3, 2006. *See Wave 3 Starter
    PN.*

[^3]: *800 MHz Report and Order*, ¶ 201. For the TA's ADR procedures,
    *see* http://800ta.org/content/PDF/policy/ADRPlan.pdf.

[^4]: *800 MHz Report and Order*, ¶ 201.

[^5]: *Id.*

[^6]: *Id.*, ¶ 194. Parties may also appeal any decisions of the ALJ.
    *See* 47 C.F.R. § 1.301.

[^7]: *800 MHz Report and Order*, ¶ 201 n.524.

[^8]: *Id.*, ¶ 201.

[^9]: *Id.*

[^10]: *Id.*, ¶ 194. We note that a petition for reconsideration
    addressing cost responsibility is pending before the Commission.
    *See* Petition for Reconsideration, filed by Schwaninger &
    Associates, P.C. on January 3, 2006.