**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 Suffolk, Virginia        | ** |                              |
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| and Sprint Nextel                | *  |                              |
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| Mediation No. TAM-12037          | ** |                              |
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**MEMORANDUM OPINION AND ORDER**

**Adopted: September 10, 2007 Released: September 10, 2007**

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

# Introduction

1.  In this *Memorandum Opinion and Order*, we address a case referred
    to us for *de novo* review from Wave 1, Phase 2 mediation by the 800
    MHz Transition Administrator (TA) involving disputes between the
    City of Suffolk, Virginia (Suffolk) and Sprint Nextel Corporation
    (Sprint). The disputes relate to the reimbursability of certain
    software as well as costs incurred by Suffolk's consultant, Televate
    LLC (Televate). Based on previous decisions and our *de novo* review
    of the mediation record, we find that Suffolk is entitled to the
    compensation it seeks from Sprint for inventory tracking software.
    In addition, we approve the majority of Suffolk's claims for
    estimated internal staff and consulting costs. However, we disallow
    certain items as duplicative and direct Suffolk to look for cost
    savings in its actual expenditures with respect to certain other
    items.

# background

2.  Suffolk's communication system (licensed under call signs WNMJ688
    and WQEQ912) consists of a three-site twelve channel system serving
    1310 subscriber units.[^1] Fourteen government agencies use the
    system, which is governed by a regional Memorandum of Understanding
    facilitating mutual aid with all jurisdictions in the Hampton Roads
    region.[^2] Suffolk does not have significant internal staff
    resources to manage the system, and is therefore relying almost
    exclusively on Televate and Motorola to provide rebanding
    services.[^3]

3.  Suffolk and Sprint commenced negotiations regarding a Planning
    Funding Agreement (PFA) for retuning of the system in February
    2006.[^4] The case was referred to mediation on August 26, 2006.[^5]
    On April 5, 2007, after mediation proved unsuccessful, the mediator
    referred the matter to the Public Safety and Homeland Security
    Bureau (PSHSB) for *de novo* review and resolution, submitting the
    record in the case as well as his Recommended Resolution.[^6] The
    parties filed Statements of Position with PSHSB on June 29,
    2007.[^7] The parties remain at odds on the use of certain software,
    coverage testing, and consultant costs. We note that Suffolk did not
    contest the mediator's recommended resolution in its Statement of
    Position, but did seek reimbursement for 304 additional consultant
    hours that were not included in its initial Proposed Resolution
    Memorandum (PRM) submitted to the mediator.[^8]

# discussion

## Standard of Review

4.  As an initial matter, the Commission's orders in this docket assign
    to Suffolk the burden of proving that the funding it has requested
    is reasonable, prudent, and the "minimum necessary to provide
    facilities comparable to those presently in use."[^9] We note that
    the Commission has recently clarified this standard for purposes of
    determining whether licensee relocation costs are the "minimum
    necessary" to accomplish rebanding, and therefore must be paid by
    Sprint.[^10] In the *Rebanding Cost Clarification Order*, the
    Commission stated that the term "minimum necessary" cost does not
    mean the absolute lowest cost under any circumstances, but the
    "minimum cost necessary to accomplish rebanding in a reasonable,
    prudent, and timely manner."[^11] This standard takes into account
    not just cost but all of the objectives of the proceeding, including
    timely and efficient completion of the rebanding process, minimizing
    the burden rebanding imposes on public safety licensees, and
    facilitating a seamless transition that preserves public safety's
    ability to operate during the transition.[^12]

5.  Our review of costs is also influenced by our experience in
    reviewing the costs incurred by other similarly-situated 800 MHz
    licensees in the rebanding process. In this regard, we have the
    benefit of data from the TA that can provide us with cost metrics
    for approved agreements for systems of varying size and
    complexity.[^13] We stress that these metrics are only one guiding
    factor underlying our analysis of the reasonableness of planning
    costs. Depending on the facts the licensee has established in the
    record, we may disapprove costs that fall below the guidelines or,
    conversely, approve costs that exceed the guidelines. We now turn to
    the specific issues in dispute.

## MCM Software

6.  Suffolk seeks \$19,380 for the purchase of third-party proprietary
    software developed by MCM Technology LLC (MCM) for inventory
    management and tracking of radio equipment involved in the
    reconfiguration process.[^14] We find that these costs are
    reasonable and recoverable.

7.  *Suffolk Position*. Suffolk argues that it has neither the
    methodology nor the staff to track its radios or time spent by
    personnel working on rebanding.[^15] Suffolk states that it has
    evaluated other software programs and that the MCM software is the
    only software that would not require extensive customization and
    user training.[^16] Suffolk also argues that this version of MCM
    software is consistent with the Bureau's decision in the *City of
    Boston* case in that the software will not provide Suffolk with
    significant post-rebanding benefits.[^17]

8.  *Sprint Position.* Sprint offers \$11 per unit, or \$14,410, to
    cover Suffolk's inventory expenses.[^18] Sprint contends that
    Suffolk failed to "fully vet bids and quotes submitted by potential
    service providers to ensure that the activities are reasonable and
    prudent expenses directly related to the retuning of an 800 MHz
    system."[^19] Sprint contends that MCM software is unnecessary since
    other jurisdictions routinely schedule and dispatch personnel, track
    radios, and record internal costs without the aid of MCM
    software.[^20] Finally, Sprint argues that the cost of the MCM
    software is excessive for this project in light of the fact that
    Suffolk is already proposing \$70,000 in project management
    expenses.[^21]

9.  *Mediator Recommendation.* The mediator recommends finding that
    Suffolk is not entitled to reimbursement for the MCM software. The
    mediator cites to our prior *City of Boston* decision, in which we
    found that MCM software was not operationally necessary for the City
    of Boston to reband its system and therefore was not a recoverable
    expense.[^22] The mediator questions Suffolk's estimate that without
    the MCM software, it would need "300-400 hours" to develop an
    alternative spreadsheet solution.[^23]

10. *Discussion.* We find that Suffolk's proposed use of MCM software in
    this case is a recoverable expense. As we noted in our recent
    *Washoe County* order*,* the MCM software that Suffolk seeks to
    employ is less costly and more directly tailored to rebanding than
    what Boston sought to employ.[^24] In *City of Boston*, MCM proposed
    to sell Boston a package costing \$159,825 that consisted of a
    backbone system, asset management software, and report-writing
    software.[^25] We found that this package and associated training
    would provide benefits and capabilities beyond those necessary to
    support Boston's rebanding effort.[^26] Suffolk, on the other hand,
    proposes to spend \$19,380 to obtain use of the MCM software solely
    for rebanding purposes.[^27] Suffolk will not acquire the backbone
    system but will instead access the software on MCM's servers, and
    will cease using it once rebanding is completed.[^28] The proposed
    combined cost of the MCM software and associated labor in this case
    is significantly less than was proposed in *City of Boston*: in the
    latter case, these costs represented 12 percent of the total
    retuning costs and totaled \$59 per radio.[^29] In this case, the
    proposed combined cost of \$19,380 is approximately 7.6 percent of
    Suffolk's total requested planning costs retuning costs and
    approximately \$15 per radio.[^30]

11. While we acknowledge that Suffolk does not operate a particularly
    complex system, we note that Suffolk's rebanding effort is
    complicated by its lack of internal personnel to work on rebanding,
    a fact that forces Suffolk to rely almost exclusively on consultants
    to perform rebanding tasks. Given that these tasks are being billed
    at approximately \$150 per hour, if use of the MCM software saves
    130 consultant hours over the course of rebanding, it will have
    effectively paid for itself.[^31] We fully expect Suffolk to achieve
    at least this level of efficiency through the use of the software.
    We also note that the difference between Sprint's offer of
    \$11/radio and the cost of the MCM software is under \$5,000, a *de
    minimis* amount, especially when viewed in light of the overall cost
    of this project.

## Other Inventory Costs

12. Suffolk seeks compensation for 18 hours spent by Televate on
    infrastructure inventory and 106 hours on subscriber unit inventory.
    We approve the 18 hours for infrastructure inventory and 76 hours
    for subscriber inventory.

13. *Suffolk Position.* With respect to infrastructure inventory,
    Suffolk acknowledges that Motorola will perform the inventory of its
    fixed equipment, but argues that Televate's 18 hours of work on
    infrastructure inventory is not duplicative of tasks assigned to
    Motorola.[^32] Suffolk states that it has so little internal
    information about its system that it requires the consultant's
    assistance to accurately complete the Motorola questionnaire
    regarding its proposed inventory tasks.[^33] Suffolk states that
    Televate has already spent 14.5 hours assisting in the collection of
    this information.[^34]

14. With respect to the subscriber unit inventory, Suffolk states that
    Televate spent 31.5 hours reviewing existing records to determine
    the approximate count of Suffolk's subscriber units and used this
    information in preparing Suffolk's RFPF.[^35] Suffolk contends,
    however, that Televate must perform a second, more specific
    inventory to develop Suffolk's reconfiguration plan.[^36] Suffolk
    states that the second inventory is more time-intensive because
    Televate must (1) identify subscriber units by agency, location,
    type, and model number; (2) create a list of all accessories
    currently associated with each unit; and (3) create a master
    database of the licensee's subscriber units.[^37]

15. *Sprint Position.* Sprint offers 42 hours for infrastructure and
    subscriber unit inventory.[^38] With regard to the infrastructure
    inventory, Sprint argues that Televate's proposed hours are
    duplicative of Motorola's efforts.[^39] With respect to subscriber
    inventory, Sprint argues that the proposed inventory for the
    reconfiguration plan is duplicative of the initial inventory
    performed by Televate to prepare the RFPF.[^40]

16. *Mediator Recommendation.* The mediator recommended approving 91.5
    hours (15.5 hours for Televate's role in infrastructure inventory
    and 76 hours for Televate's role in subscriber inventory).[^41] The
    mediator concluded that Suffolk had justified the work already
    performed by Televate on infrastructure inventory, but had not shown
    that additional work by Televate was required.[^42] With regard to
    subscriber inventory, the mediator found most of Suffolk's requested
    hours to be reasonable, but concluded that 30 of the 106 hours
    requested were duplicative of tasks to be performed by Motorola or
    other project management tasks to be performed by Televate.[^43]

17. *Discussion*. We approve 18 hours for infrastructure inventory as
    requested by Suffolk. Given the limited number of hours at issue for
    this task, we find that approval of the full amount is appropriate
    under the guidance provided by the *Minimum Cost Order.* We also
    approve 76 hours for subscriber inventory. We find that Suffolk's
    request for 106 hours included some duplication of tasks assigned to
    Motorola or accounted for under other project management categories.
    Suffolk seeks 22 hours for Televate to "\[r\]esearch radio vendor
    radio \[r\]ebanding documentation and interact with vendor as
    appropriate" but also tasks Motorola with rebanding, reprogramming
    and replacing equipment.[^44] Similarly, Suffolk requests 8 hours
    for Televate to monitor the progress of subscriber inventory is
    duplicative of Televate's overall Project Management task.[^45] We
    also anticipate that Suffolk will realize efficiencies from the use
    of MCM software to track inventory both in the planning phase of
    rebanding and the implementation phase.

## Televate Project Management Costs

18. Suffolk requests compensation for 435.75 hours of project management
    work by Televate. For the reasons set forth below, we approve 281.75
    hours.

19. *Suffolk Position*. In its PRM, Suffolk states that Televate has
    already spent 275.75 hours on project management, and provides a
    detailed breakdown of the sub-tasks on which this time was
    spent.[^46] Suffolk also estimates that Televate will spend an
    additional 160 hours on project management going forward, and
    provides a breakdown of these costs as well.[^47] Suffolk states
    that it prepared its cost proposal based on its knowledge of its own
    system and Televate's experience with similar public safety radio
    systems.[^48] Suffolk contends that it is in the best position to
    assess how much time it will need to perform rebanding tasks.[^49]
    Suffolk also notes that its request for recovery of historical costs
    includes reimbursement for Televate's role in both Suffolk's Channel
    1-120 (Stage 1) negotiations as well as the instant
    negotiations.[^50] Suffolk notes that Stage 1 was successfully
    negotiated, but that the agreement did not include the time and cost
    to Suffolk and Televate to support the Stage 1 effort.[^51] Suffolk
    contends that had it not agreed with Sprint to defer Televate's
    costs associated with Stage 1 negotiations, it could have reduced
    what it now seeks in the present RFPF.[^52] Suffolk argues that it
    is being penalized for its cooperation with Sprint during the Stage
    1 negotiations, given that Sprint is now seeking to avoid
    reimbursing these costs.[^53]

20. Suffolk allocates the 160 future project management hours as
    follows: 66 hours to assemble and share program status and insights
    with appropriate internal and external personnel, 40 hours to
    prepare, travel and present presentations to appropriate Suffolk
    stakeholders, 42 hours of reconfiguration planning oversight
    management and 12 hours to prepare a rebanding MS Project plan.[^54]

21. *Sprint Position*. Sprint asserts that Televate's project management
    costs are excessive for the Suffolk system, which is not
    particularly complex, and proposes to pay for 128 hours of
    Televate's work.[^55] Sprint contends that at least 20 of the
    project management hours contain little or no description of the
    work performed, and that Suffolk has overestimated the complexity
    and time required for other project management tasks.[^56] Sprint
    argues that the Stage 1 negotiations could not have added
    significantly to Televate's project management costs because
    Suffolk's own documentation shows that Televate spent only 16 hours
    on Stage 1 negotiation support.[^57]

22. *Mediator Recommendation*. The mediator recommended approving 165.25
    of Televate's historical hours and 106 of Televate's estimated
    future hours, for a total of 271.25 hours out of the 435.75 that
    Suffolk requests.[^58] The mediator concluded that 55 hours
    attributed to historical sub-tasks were duplicative of other cost
    categories.[^59] The mediator also recommended reducing from 13.5
    hours to four hours the time allotted for Televate to define
    Motorola's roles and responsibilities in the reconfiguration. The
    mediator found Motorola's role and responsibilities to be
    well-defined, and that four hours should be adequate to accomplish
    the task.[^60] Finally, the mediator recommended reducing Televate's
    role in collecting data for the RFPF from 111.5 hours to 65.5 hours.
    The mediator found this request to be duplicative of 46 hours
    requested and approved elsewhere for Televate's inventory activities
    associated with the RFPF.[^61]

23. With regard to estimated future hours, the mediator recommended
    approving the 12 hours devoted to the creation of the MS Project
    rebanding plan, but recommended reducing the time allocated to
    meetings with Suffolk stakeholders from 40 hours to eight hours. The
    mediator found 32 hours for Televate travel time to be duplicative,
    and questioned why meetings could not be conducted via telephone or
    video-conference or consolidated with other Televate
    activities.[^62] The mediator also found overlap between 66 hours
    sought for "gathering project task progress, updating and producing
    status reports, and communicating with key project personnel" and 42
    hours sought for "vendor coordination and management as appropriate
    as well as review of each category of deliverables for quality and
    cost management." Given this overlap, the mediator recommended
    reducing the requested 66 hours by one-third to 44 hours.[^63]

24. *Discussion*. We approve 175.75 hours for project management costs
    previously incurred by Televate and 106 hours for future project
    management costs. We find that 100 hours of time previously spent by
    Televate on project management was duplicative of other tasks.
    However, given the Commission's guidance in the *Minimum Cost
    Order,* we find that the two hours Suffolk seeks to allow Televate
    to review and respond to Sprint's questions and the 13.5 hours
    sought to define Motorola's roles and responsibilities are *de
    minimis* amounts and we will allow them. With regard to proposed
    future hours, we find that some of Televate's proposed costs are
    duplicative, and that Televate can realize efficiencies in project
    management by eliminating unnecessary travel time and consolidating
    meeting activity.

## Transition and Acceptance Test Plan

25. Suffolk seeks a total of 354 hours for Televate's role in developing
    a transition plan (286 hours) and an acceptance test plan (68
    hours).[^64] We approve 200 hours.

26. *Suffolk Position*. Suffolk states that Televate will have a
    substantial role in preparing the transition plan, and that the
    hours proposed are not duplicative of the hours associated with
    Motorola.[^65] Suffolk argues that while Motorola's is focused on
    retuning and reprogramming the base stations and repeaters,
    including the combiners at each radio site, Televate will serve as
    the overall project manager, a role which includes managing
    Motorola's efforts.[^66] This will require Televate to identify talk
    groups, user protocols, how the radios are used, and times the
    radios are in use or available for reprogramming.[^67] To obtain
    this information, Televate proposes to spend 40 hours meeting with
    and gathering data from 13 user agencies.[^68] In addition, Suffolk
    states that it will require a total of 16 hours for travel between
    Televate's offices in northern Virginia and the City of Suffolk,
    where the meetings will be held.[^69] Once Televate has met with the
    user agencies, Suffolk proposes that Televate spend 40 hours
    reviewing and refining the Motorola infrastructure reconfiguration
    plan in light of the information gathered.[^70] Televate anticipates
    spending 55 hours preparing the cost estimate for the FRA.[^71]

27. Suffolk estimates that Televate will then spend 135 hours developing
    the operational transition plan, which Suffolk claims is the most
    important part of the reconfiguration process.[^72] Suffolk states
    that Televate will prepare a comprehensive database that outlines
    how the users' radios will be retuned or replaced; how many radios a
    specific agency can provide for reprogramming at one time; how many
    vehicles can be brought in at a specific time; and how to integrate
    the equipment downtime into day-to-day operations.[^73] The Licensee
    asserts that while Motorola's retune plan is focused on a
    step-by-step retune of the network infrastructure, Televate's plan
    accounts for an integrated subscriber and infrastructure retune
    plan.[^74]

28. Suffolk's original acceptance plan proposal called for 108 hours to
    be allocated as follows: (1) 30 hours to plan a "clear frequency
    test"; (2) 14 hours to plan a "pre and post rebanding coverage
    test"; (3) 34 hours to plan "system quality testing"; and (4) 30
    hours to plan "Motorola software testing".[^75] In its Reply PRM,
    Suffolk reduced the number of hours it sought for these tasks to 68,
    but did not allocate how the hours would be spent.[^76]

29. *Sprint Position*. Sprint contends that Suffolk's request for 354
    hours to develop a transition plan and an acceptance test plan is
    excessive. Sprint proposes 200 hours for Televate to accomplish
    these tasks.[^77] Sprint asserts that some of the transition plan
    sub-tasks appear to be more related to the implementation stage than
    the planning stage.[^78] Sprint also argues that Suffolk could
    reduce the number of agency meetings and Televate's travel time to
    and from meetings by half.[^79] In addition, Sprint questions
    Suffolk's inclusion of 50 hours for RFPF preparation costs as part
    of transition plan preparation, noting that RFPF costs are
    separately accounted for.[^80] With respect to preparation of the
    operational transition plan, Sprint asserts that Televate's proposed
    work is duplicative of "engineering and implementation" planning
    being performed by Motorola.[^81] Sprint asserts that this work by
    Motorola represents the "backbone" of the planning efforts to
    reconfigure Suffolk's system.[^82]

30. *Mediator Recommendation*. The mediator recommended approving 156
    hours for transition plan preparation and 44 hours for acceptance
    test plan preparation, for a total of 200 hours. The mediator agreed
    with Sprint that Televate should consolidate meetings with user
    agencies to reduce overall meeting and travel time.[^83] The
    mediator further noted that Televate representatives are working on
    other rebanding projects in the region.[^84] The mediator therefore
    recommended budgeting two hours per meeting rather than four hours,
    and eliminating travel time by using telephone and video conferences
    as an alternative to meetings.[^85] The mediator concluded that 16
    hours rather than 40 hours is sufficient time for Televate to review
    and assess the Motorola infrastructure reconfiguration plan, given
    Motorola's expertise and experience in developing such plans.

31. The mediator also recommended approving 120 of the 135 hours
    requested for Televate's development of an operational transition
    plan. The mediator agreed with Suffolk that Televate's role is
    separate and distinct from Motorola's. However, the mediator noted
    that tasks such as "coordination" and briefing of agency
    representatives were included in the 135 hour figure. The mediator
    concluded that this element of the request was duplicative of time
    allotted elsewhere for project management and meetings with Suffolk
    and its agencies. The mediator therefore recommended reducing the
    time allowed to 120 hours.[^86] Finally, the mediator found that the
    55 hours allocated for the development of the cost estimate of the
    FRA was duplicative of 50 hours sought for Televate's role in
    preparing the FRA.[^87]

32. The mediator recommended approving 48 hours for developing an
    acceptance test plan.[^88] The mediator concluded that four hours
    rather than 30 hours was sufficient time for Televate to plan the
    testing of Motorola software, given the standardized nature of the
    software.[^89] The mediator also was not persuaded that Suffolk
    needed 34 hours for "system quality testing."[^90]

33. *Discussion*. After review of the record, we approve 200 hours for
    these tasks. We will not allow the additional 154 sought by Suffolk
    because some of the tasks identified by Televate are duplicative of
    tasks accounted for elsewhere in its planning proposal, and because
    Televate can realize efficiencies in the planning process by
    reducing travel time and consolidating meeting activity.

## Frequency Analysis

34. Suffolk requests reimbursement of \$800 for five hours of Televate
    time to reconfigure software in order to perform a co-channel
    analysis.[^91] We approve this request as a *de* *minimis* expense.

35. *Sprint Position*. Sprint contends that the requested software
    reconfiguration and analysis is not reasonably necessary for
    rebanding.[^92] Sprint argues that the software in question is a
    tool used primarily for the implementation of a new communications
    system and its use would not produce relevant results as to adjacent
    channel interference or confirm that the channels to which the
    Suffolk will be relocated have been cleared[^93]

36. *Mediator Recommendation*. The mediator found that Suffolk had not
    met its burden of demonstrating that this task was reasonable,
    prudent, and necessary to rebanding.[^94]

37. *Discussion.* We will allow this claim as a *de* *minimis* expense.
    While Suffolk has not provided detailed information of the type that
    would justify a more significant expenditure on frequency analysis
    in this case, but in accordance with the *Rebanding Cost
    Clarification Order*, we find that payment of the disputed cost
    "will avoid greater expense to negotiate and/or mediate the dispute
    and will further the goal of timely and efficient rebanding."[^95]

## Payment Terms

38. Suffolk asserts that Televate should be paid 50 percent of its
    estimated planning costs immediately upon signing of the PFA.[^96]
    We grant relief with respect to costs that Televate has actually
    incurred prior to the signing of the PFA.

39. *Suffolk Position.* Suffolk argues that because of the protracted
    nature of PFA negotiations, Televate has been forced to carry
    significant planning costs for a long period of time without payment
    by Sprint. Suffolk also argues that in contracts where Motorola is
    providing rebanding planning services, Sprint has agreed to pay
    Motorola 50 percent upon PFA signing, and that Televate is entitled
    to the same payment terms.[^97]

40. *Sprint Position.* Sprint contends that it is only required to pay
    vendors within 30 days of the payment obligation date, which Sprint
    defines as the date it receives a written vendor invoice or the
    licensee approves a vendor invoice. Sprint acknowledges that it has
    a different payment arrangement with Motorola, but asserts that this
    is because it has a long-standing relationship with Motorola and
    because Motorola is undertaking a nationwide role in rebanding of
    numerous systems.[^98] Sprint contends that it has discretion to
    negotiate different payment terms with different vendors and that
    its payment practice with Motorola does not bind it with respect to
    other vendors.[^99] Sprint also argues that requiring it to pay
    Televate upon signing the PFA would contradict TA guidelines and
    "open the flood gates" for every vendor to demand upfront payment.
    [^100]

41. *Mediator Position.* The mediator recommends finding in Suffolk's
    favor and requiring Sprint to pay Televate 50 percent of its
    estimated costs upon execution of the PFA. The mediator notes that
    Televate has already incurred significant costs and has been
    carrying those costs for some time.[^101]

42. *Decision.* Upon execution of a PFA with Suffolk, we direct Sprint
    to pay planning costs that Televate has already incurred and that
    have been approved by this Order. Televate has had to carry these
    costs for some time, and it is appropriate that they be paid by
    Sprint promptly. At the same time, we will not require Sprint to pay
    any portion of anticipated costs upon signing of the PFA. Our rules
    allow but do not require upfront payment of rebanding costs by
    Sprint, provided that it pays such costs promptly as they are
    incurred.

## Additional Televate Hours

43. Suffolk seeks reimbursement for 304 hours of work performed by
    Televate from mid-2006 through the end of January 2007 that was not
    identified until Suffolk filed its Reply PRM on February 27,
    2007.[^102] We approve the portion of these hours that reflects work
    performed by Televate after the filing of Suffolk's initial PRM on
    December 1, 2006.

44. *Suffolk Position.* In its Reply PRM, Suffolk for the first time
    sought to add 304 "unanticipated" hours to its prior request on
    behalf of Televate. Suffolk asserted that these hours reflect
    mediation-related work by Televate, including preparing detailed
    responses to Sprint's questions, conference calls with Suffolk
    staff, legal counsel, and Sprint to discuss mediation issues, and
    assisting in preparation of Suffolk's PRM and reply PRM.[^103] In
    its Statement of Position, Suffolk asserts that some of these hours
    were spent answering questions posed by the TA as well as
    Nextel.[^104]

45. *Sprint Position.* Sprint argues that these costs should be
    disallowed because Suffolk did not identify them in its initial PRM.
    Thus, Sprint did not have a chance to respond to, much less
    negotiate, this request before the mediator.[^105] Sprint contends
    that allowing Suffolk to add a new claim for costs at the last
    minute undermines the mediation process and threatens to delay
    resolution of issues.[^106] Sprint further contends that Suffolk's
    claim is unsupported on the merits. While Suffolk claims that these
    hours reflect mediation activity through the end of January 2007,
    Sprint contends that there was little such activity after November
    2006.[^107] Finally, Sprint contends that allowing Televate credit
    for 304 hours of additional work would push total project management
    costs beyond those set forth in the TA metrics for planning
    funding.[^108]

46. *Mediator Position.* Because Suffolk did not raise this claim in
    mediation until the filing of its reply PRM, the mediator did not
    address the issue.

47. *Discussion.* An examination of the timesheets reveals that Televate
    incurred 171 of the 304 hours prior to the filing of its initial PRM
    on December 1, 2006. Suffolk is hard pressed to claim that these
    hours were "unanticipated."[^109] Suffolk had the opportunity to
    identify them in its initial PRM, which would have enabled Sprint
    and the mediator to evaluate whether they were reasonable. By
    choosing not to do so, Suffolk has waived its ability to seek
    reimbursement of these hours. However, we will allow Suffolk to
    obtain reimbursement of the remaining 133 hours, which primarily
    consist of work by Televate to evaluate the MCM software and assist
    in preparation of the reply PRM. Because these hours were incurred
    after the filing of the initial PRM, Suffolk's inclusion of them in
    the Reply PRM was timely. We also find that these costs are
    rebanding-related and recoverable under the standard set forth in
    the *Rebanding Cost Clarification Order.*

# Ordering ClauseS

48. 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 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.

49. IT IS FURTHER ORDERED that the Transition Administrator shall
    convene a meeting of the parties consistent within seven days of the
    date of this Order for the purpose of completing a Planning Funding
    Agreement consistent with the resolution of issues set forth herein.

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

[^1]: Recommended Resolution, filed April 5, 2007 by the 800 MHz
    Transition Administrator, LLC (RR) at 1, 3, Proposed Resolution
    Memorandum of Nextel Communications, Inc, filed December 28, 2006,
    Appendix D (Sprint PRM).

[^2]: Proposed Resolution Memorandum of Licensee, filed December 1,
    2006, by City of Suffolk, Ex.1 at 24 (Suffolk PRM).

[^3]: *Id.,* Exhibit 1. Suffolk states that for over five years, a
    single technician was tasked with maintaining the system, and that
    only in April 2006 was the city able to procure the services of a
    system manager.

[^4]: RR at 2.

[^5]: *Id.*

[^6]: *Id.*

[^7]: Statement of Position, filed by Suffolk, June 29, 2007 (Suffolk
    SOP); Statement of Position, filed by Sprint Nextel, June 29, 2007
    (Sprint SOP).

[^8]: *See generally* Suffolk SOP*.* This issue is addressed in Section
    III.H., *infra.*

[^9]: *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, 15074 ¶ 198 (2004) (*800
    MHz Report and Order*); Improving Public Safety Communications in
    the 800 MHz Band, *Supplemental Order and Order on Reconsideration*,
    19 FCC Rcd 25120, 25152 ¶ 71 (2004) (*800 MHz Supplemental Order*).

[^10]: Improving Public Safety Communications in the 800 MHz Band,
    *Memorandum Opinion and Order*, 22 FCC Rcd 9818 (2007) (*Rebanding
    Cost Clarification Order*).

[^11]: *Id.* at ¶ 6.

[^12]: *Id.* at ¶ 8.

[^13]: *See*
    http://800ta.org/content/PDF/other/Planning_Funding_Cost_Metrics.pdf

[^14]: The software at issue is MCM's "360 Project Management Platform"
    (hereinafter, "MCM software").

[^15]: Suffolk PRM at 12-13, Reply of City of Suffolk, Virginia to
    Nextel Communications, Inc. Proposed Resolution Memorandum, filed
    Feb. 27, 2007 at 8 (Suffolk Reply PRM).

[^16]: Suffolk Reply PRM at 8, 10. Among the options Suffolk rejected
    was a Excel-based solution offered by Sprint. Suffolk Reply PRM at
    15. Suffolk's reasons for rejecting this solution are literally
    identical to the reasons by Washoe County in its dispute with
    Sprint. *See* Washoe County, Nevada and Sprint Nextel, *Memorandum
    Opinion and Order,* WT Docket 02-55, DA 07-2955 (rel. Jul. 3, 2007)
    n.34 (*Washoe County MO&O*).

[^17]: Suffolk Reply PRM at 12.

[^18]: Sprint PRM at 30.

[^19]: *Id.* at 14.

[^20]: Proposed Resolution Memorandum of Nextel Communications, Inc.,
    filed Feb. 27, 2007 at 5 (Sprint Supplemental PRM.

[^21]: Sprint Supplemental PRM at 5-6.

[^22]: RR at 32 *citing* City of Boston, Massachusetts and Sprint
    Nextel, *Memorandum Opinion and Order*, WT 02-55, 21 FCC Rcd 14661
    (PSHSB 2007) (*Boston MO&O*).

[^23]: *Id.*

[^24]: *Washoe MO&O* at ¶ 23.

[^25]: *Boston MO&O,* 22 FCC Rcd at 14667-68 ¶ 24.

[^26]: *Boston MO&O,* 22 FCC Rcd at 14670 ¶ 29.

[^27]: Suffolk Reply PRM at 12.

[^28]: *Id.*

[^29]: *Boston MO&O,* 22 FCC Rcd at 14667-68 ¶ 24

[^30]: Based upon the initial cost estimate submitted by Suffolk.
    Suffolk seeks over \$252,000 in planning costs. *See* Sprint
    Supplemental PRM Exhibit T. We note that Suffolk's cost for the MCM
    software is significantly lower than the amount we approved in
    *Washoe* because Washoe requested ten user licenses for its system
    while Suffolk only requests two.

[^31]: Televate's rates are contained in Suffolk's Request for Planning
    Funding, Suffolk PRM, Exhibit 5.

[^32]: Suffolk PRM at 6.

[^33]: *Id.* at 6-7.

[^34]: *Id.* at 7.

[^35]: *Id.*

[^36]: *Id.*

[^37]: Suffolk Reply PRM at 7-8.

[^38]: Sprint PRM at 14.

[^39]: Sprint PRM at 12.

[^40]: *Id.* at 14.

[^41]: RR at 27.

[^42]: *Id.*

[^43]: *Id.* at 28-29.

[^44]: *See* Sprint PRM at 11-12, App. A at 6.

[^45]: *See* Sprint PRM, App. A at 6 and Suffolk PRM, Exhibit 5 at 17.

[^46]: Suffolk Reply PRM at 15-19.

[^47]: Suffolk Reply PRM at 18-19.

[^48]: Suffolk PRM at 12.

[^49]: *Id.* at 16.

[^50]: Suffolk PRM at 15.

[^51]: Suffolk Reply PRM at 14.

[^52]: *Id.*

[^53]: *Id.*

[^54]: *Id.* at 18-19

[^55]: Sprint PRM at 31, 35.

[^56]: *Id.*

[^57]: *Id.* at 32-33.

[^58]: RR at 32.

[^59]: *Id.* at 33-34. The mediator found the following activities to be
    duplicative: (1) 16 hours for Televate internal staff meetings
    (duplicative of hours attributed to "resources management, quality
    management" and "schedule control"); (2) 21 hours for Televate to
    comply with the TA's schedule and engage in preplanning and planning
    activities (duplicative of hours attributed to "\[l\]icensee
    awareness meetings and conference calls," "\[c\]reating
    reconfiguration work procedures," and "\[o\]verall projected
    management"); (3) 16 hours for Televate's role in tracking the
    project schedule and cost (duplicative of hours attributed to
    "resources management, quality management for all of the
    deliverables, and schedule control"); and (4) 2 hours for Televate
    to review Sprint's questions and prepare a detailed response
    (duplicative of hours attributed to Televate's participation in
    meetings and conference calls).

[^60]: RR at 33.

[^61]: *Id.* at 34.

[^62]: *Id.* at 34.

[^63]: *Id.* at 35.

[^64]: Suffolk Reply PRM at 24.

[^65]: *Id.*

[^66]: *Id.* at 21-21. Suffolk details Televate's tasks at *id*. 22-24.

[^67]: *Id.*

[^68]: *Id.* at 22.

[^69]: *Id.*

[^70]: *Id.* at 22-23.

[^71]: *Id.* at 24.

[^72]: *Id.* at 23-24.

[^73]: *Id.*

[^74]: *Id.*

[^75]: Suffolk PRM, Exhibit 18, 8-9.

[^76]: Suffolk Reply PRM at 24.

[^77]: Sprint PRM at 36-37, 40.

[^78]: *Id.* at 37.

[^79]: *Id.*

[^80]: *Id.* at 38.

[^81]: *Id.* at 39.

[^82]: *Id.*

[^83]: RR at 35 *citing* Sprint PRM at 37

[^84]: RR at 35 *citing* Sprint PRM*,* Appendix A at 6.

[^85]: RR at 35

[^86]: *Id.*

[^87]: *Id.* at 36.

[^88]: *Id.* at 37. The mediator examined the detailed 108 hour plan
    contained in Suffolk's PRM, not the 68 hour proposal contained in
    its Reply PRM.

[^89]: *Id.*

[^90]: *Id.*

[^91]: Suffolk PRM, Exhibit 5 at 8.

[^92]: Sprint PRM at 11.

[^93]: *Id.*.

[^94]: RR at 26.

[^95]: *Rebanding Cost Clarification Order* at ¶ 10.

[^96]: Suffolk PRM at 16-17.

[^97]: *Id.* at 17.

[^98]: *Id.*

[^99]: *Id.* at 41.

[^100]: Sprint SOP at 14.

[^101]: RR at 38.

[^102]: Suffolk Reply PRM at 19.

[^103]: *Id.* at 19-20.

[^104]: Suffolk Statement of Position at 10-11. We note that Suffolk
    also seeks to recover its costs associated with filing of a Request
    for Clarification and its Statement of Position with the Bureau.
    *Id.* at 12. We deny this request since the Commission has recently
    held that expenses for litigation of rebanding issues before the
    Commission are not recoverable. *See* Improving Public Safety
    Communications in the 800 MHz Band, WT Docket 02-55, *Second
    Memorandum Opinion and Order,* 22 FCC Rcd 10467 (2007) at ¶¶ 43-50.

[^105]: Sprint SOP at 14-15.

[^106]: *Id.* at 16.

[^107]: *Id.* at 16.

[^108]: *Id.* at 16-17.

[^109]: We note that Suffolk does not provide any explanation as to why
    it did not submit those hours as part of its initial PRM.