**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+----+------------------------------+
| In the Matter of                 | )  | WT Docket No. 05-286         |
|                                  |    |                              |
| Request for Waiver of            | )  |                              |
| Location-Capable Handset         |    |                              |
| Penetration Deadline by Sprint   | )  |                              |
| Nextel Corporation               |    |                              |
|                                  | )  |                              |
|                                  |    |                              |
|                                  | )  |                              |
+----------------------------------+----+------------------------------+

**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 Sprint Nextel Corporation (Sprint Nextel),[^1] a Tier I
    wireless service provider.[^2] Specifically, Sprint Nextel 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 Sprint Nextel's waiver
    request. As we explain more fully below, Sprint Nextel's 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 Sprint Nextel 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. Consequently, we refer the matter
    of Sprint Nextel's 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 its 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]

### Sprint Nextel Merger Order

10. The Commission next addressed Nextel's obligation to meet the
    December 31, 2005 95% penetration deadline when it consented to the
    merger of Sprint and Nextel. In granting consent, the Commission
    stated that it was "particularly concerned about the merged entity's
    progress toward E911 compliance."[^32] It noted Nextel's assertion
    that it "'anticipate\[d\] that Sprint Nextel \[would\] likely not
    achieve the Commission's 95 percent A-GPS handset penetration
    requirement until December 31, 2007,'" and deemed that result
    unacceptable.[^33] The Commission "confirm\[ed\] \[its\] commitment
    to the E911 rules and remind\[ed\] the Applicants that they, like
    all carriers, are obligated to comply with \[the\] E911 rules,
    including the requirement that carriers electing a handset-based
    E911 solution achieve 95 percent penetration by the end of
    \[2005\]."[^34]

## Sprint Nextel Request and Comments

### Summary of Request

11. Sprint Nextel, a nationwide CMRS provider, is the product of a
    merger between Sprint and Nextel.[^35] Prior to the merger, Nextel
    provided digital wireless voice and data communications services
    over a network based on Motorola's Integrated Digital Enhanced
    Network (iDEN) technology.[^36] Sprint Nextel continues to use iDEN
    technology as part of its network, in addition to the Code Division
    Multiple Access (CDMA) air interface used by Sprint prior to the
    merger.[^37] Both Sprint and Nextel adopted a handset-based solution
    to satisfy their E911 Phase II obligations.

12. In its request, Sprint Nextel represents that only 80% of its
    customers would have location-capable phones by the December 31,
    2005 deadline for achieving 95% penetration of location capable
    handsets among its customers.[^38] Sprint Nextel subsequently
    reported that it reached a compliance rate of 81.3% as of December
    31, 2005[^39] and, most recently exceeded 86% as of May 31,
    2006.[^40] It asserts that its inability to meet the December 31,
    2005 deadline "is the result of events beyond its control."[^41]
    First, it states that Nextel lost "approximately one quarter of the
    time" that it had to meet the December 31, 2005 deadline[^42]
    because location-capable iDEN handsets were not available until a
    year after location-capable CDMA handsets were introduced in October
    2001.[^43]

13. Second, Sprint Nextel points to the continued existence of defective
    iDEN handsets that have not yet been upgraded or replaced. On July
    18, 2004, a latent software defect disabled the GPS functionality of
    its location-capable iDEN handsets. As a result, approximately 4.7
    million handsets became incapable of providing location information
    to Nextel's network, reducing Nextel's location-capable handset
    penetration percentage to zero.[^44] The handset defect can be
    remedied by "reflashing," *i.e.,* installing corrective software in
    the handset. [^45] Accordingly, Nextel and Motorola, the
    manufacturer of the defective handsets, engaged in what Sprint
    Nextel characterizes as "an unprecedented campaign to upgrade
    handset software as quickly as possible."[^46] Sprint Nextel also
    states that, after the handsets manifested the defect, Nextel and
    Motorola "undert\[ook\] unprecedented efforts to encourage Nextel's
    customers to upgrade their handsets' software."[^47] These efforts
    consisted of Nextel distributing free self-reflashing kits to 2.14
    million customers, making at least two direct mailings to each
    affected customer to encourage reflashing, and providing free
    upgrading service at any Nextel store or authorized dealership.[^48]
    Sprint Nextel states that, notwithstanding these efforts, as of
    October 31, 2005, "most affected customers ha\[d\] yet to upgrade or
    return these handsets and regain GPS capability."[^49]

14. Third, Sprint Nextel cites reduced customer churn as a reason for
    not complying with the December 31, 2005 95% penetration
    deadline.[^50] Specifically, Sprint Nextel asserts that the
    Commission erred when it established the penetration deadline
    because the deadline was premised on a churn rate higher than Sprint
    Nextel has experienced.[^51] Sprint Nextel adds that its lower churn
    rate is attributable to its efforts at improving customer service
    and network quality.[^52] It also asserts that it had attracted a
    large and "unique" customer base of small, medium, and large
    businesses and government organizations that have "the highest
    customer loyalty rate . . . ."[^53]

15. Fourth, Sprint Nextel states that a significant percentage of its
    customers "do not want to upgrade their handsets," either because of
    the inconvenience of having to reprogram speed dial lists and learn
    new features, the prospect of losing their investment in accessories
    used with the non-compliant phones, the greater coverage provided by
    older phones in rural areas, or simply because subscribers are
    "otherwise satisfied with their current handset\[s\] . . . ."[^54]
    Resistance is particularly common, Sprint Nextel contends, among its
    business and government customers described above who upgrade their
    handsets less frequently than do individuals.[^55]

16. Sprint Nextel argues that these four factors justify its failure to
    meet the December 31, 2005 deadline and that the Commission should
    not strictly enforce the deadline because, to do so "would require
    that potentially millions of \[Sprint Nextel's\] subscribers --
    using handsets that are exactly what they want and need to
    effectively communicate -- trade in their handsets for a new
    GPS-equipped phone."[^56] Sprint Nextel also submits that the
    Commission should not strictly enforce the deadline because "\[f\]or
    a substantial percentage, this forced handset replacement will not
    provide any added E911 safety value because Phase II services have
    not been installed by the majority of \[PSAPs\]."[^57] Sprint Nextel
    argues that if "customers are satisfied with their current service,
    have no desire to acquire a GPS handset, and potentially gain no
    benefit from such an upgrade, the Commission should not force them"
    to upgrade to a new phone.[^58]

17. Finally, with respect to actions to ensure timely compliance, Sprint
    Nextel asserts that it has taken and will continue to take measures
    in addition to its efforts to reflash defective handsets, to
    increase adoption of location-capable handsets by existing
    customers.[^59] For example the carrier states that it implemented
    marketing and promotional campaigns to encourage such adoption, and
    that, in 2004, it doubled the marketing budget for these
    efforts.[^60] It also mentions several additional steps that it is
    either considering or in the course of implementing to further
    encourage handset upgrades.[^61] Finally, Sprint Nextel argues that
    the public interest will not be harmed by its requested extension
    because "at most, 44% of Nextel subscribers would be living in an
    area covered by a Phase II-capable PSAP by the \[December 31, 2005\]
    date" and that, "\[w\]ithout a ready PSAP, the safety benefits of
    having a GPS handset are not realized."[^62]

### Summary of Comments

18. The Wireless Telecommunications Bureau sought comment on the Sprint
    Nextel Request on October 7, 2005.[^63] Motorola and CTIA 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."[^64] It
    asserted that both Sprint Nextel and Motorola had "done everything
    reasonable to achieve the E-911 location capability goal."[^65] 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."[^66]
    CTIA generally endorsed Sprint Nextel's points and argued that the
    Commission should not enforce its deadlines "in a manner that forces
    consumers to give up their phones unwillingly."[^67]

19. However, two public safety organizations, APCO and NENA, filed
    comments that, although not explicitly opposing the request, did
    express reservations.[^68] With respect to the Sprint Nextel iDEN
    network, APCO stated that "these results for the iDEN network are
    extremely troubling, and require close scrutiny by the
    Commission."[^69] APCO also noted that the various factors mentioned
    by Sprint Nextel "may be valid considerations" but should be
    examined carefully to determine whether they were beyond Sprint
    Nextel's control and thus justify its low penetration level relative
    to other major carriers.[^70] APCO also urged the Commission to
    determine whether Sprint Nextel has taken "*all* reasonable steps"
    to offset these factors.[^71] Finally, APCO submitted that,
    "regardless whether a waiver is granted, or whether sanctions are
    imposed, Sprint Nextel should be subject to an aggressive revised
    deadline and rigid reporting requirements to ensure full compliance
    at the earliest possible date."[^72]

20. NENA conceded 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."[^73] NENA also argued, however, that
    the Commission placed a "special burden" on Nextel to meet its
    handset penetration commitments "even if market conditions prove
    less than favorable."[^74] Without concluding whether Sprint
    Nextel's efforts met this burden, NENA submitted that the Commission
    should measure Sprint Nextel's efforts against the efforts of other
    carriers seeking relief from the handset deadline.[^75] It 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."[^76] Finally, NENA advocated that any extension
    should be no greater than one year, to December 31, 2006, and
    conditioned on submission of quarterly progress reports.[^77]

# discussion

21. 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.[^78]
    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.[^79]
    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.[^80]

22. We find that Sprint Nextel has failed to meet the Commission's
    standards for waiver of the 95% handset penetration requirement. The
    steps taken by Sprint Nextel 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
    Sprint Nextel. Specifically, Sprint Nextel achieved a penetration
    rate of only 81.3% by the December 31, 2005 deadline, and, as of May
    31, 2006, had only reached 86%. Moreover, Sprint Nextel's filing
    lacks a clear path to full compliance with the 95% penetration
    requirement. Sprint Nextel's proposals for achieving compliance are
    notably non-specific, equivocal in some instances and rest, in large
    part, on measures that already have proven unsuccessful.

23. As an initial matter, we reject Sprint Nextel's *ex parte* argument
    that the Commission's orders granting relief of the 95% penetration
    requirement to Tier III carriers provides a basis for granting
    Sprint Nextel similar relief due to its claimed circumstances,
    including the software defect.[^81] Sprint Nextel contends that
    these prior orders are illustrative of "an industry-wide issue" and
    the Commission's "willingness to take into consideration the
    individual circumstances facing each of these Tier III
    carriers."[^82] Sprint Nextel itself recognized, as it must, that
    the relief granted to Tier III carriers was based on the provisions
    of the ENHANCE 911 Act, which specifically apply only to Tier III
    carriers.[^83]

24. We also do not credit Sprint Nextel's 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."[^84] 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."[^85] 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.[^86] 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.[^87]

25. We equally discount Sprint Nextel's 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.[^88] 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.

26. We do find, however, that the handset defect was an event beyond
    Sprint Nextel's 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 Sprint Nextel experienced an unforeseen and
    unprecedented latent defect unique to iDEN handsets that instantly
    and completely resulted in the handsets' loss of location
    capability. The defect affected almost all models of iDEN handsets
    including more than 4.7 million subscriber handsets on Sprint
    Nextel's network.[^89] Although it is true that Nextel and, by
    extension, Sprint Nextel, was responsible for its choice of
    technologies, and thus, at least to some extent, for its resulting
    vulnerability to the software defect,[^90] we find that the defect
    was so unique and unforeseeable that Sprint Nextel 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 Sprint Nextel's statement
    that Motorola is the sole source of handsets for iDEN networks and
    Sprint Nextel thus had no alternative but to deploy the Motorola
    product.[^91]

27. A carrier's obligation in an event such as that encountered by
    Sprint Nextel is to promptly and aggressively respond once the
    problem is identified. Sprint Nextel did so.[^92] 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, Sprint Nextel
    quickly informed affected PSAPs when the defect manifested itself
    and explained to PSAP personnel, to some extent, how it would
    address the problem.[^93] These early efforts by Sprint Nextel
    signify that it did perform commendably immediately after the defect
    was recognized.

28. Despite our acknowledgment of the software defect, it is not
    controlling in our analysis of Sprint Nextel's waiver request. An
    overriding factor is Sprint Nextel's own admission it would have
    fallen short of the December 31, 2005 benchmark even had it not
    encountered the software problem. Specifically, even absent the
    defect, Sprint Nextel would have achieved only 88% penetration by
    the deadline.[^94] Therefore, the software defect notwithstanding,
    Sprint Nextel's waiver request had to cite facts sufficient for us
    to determine: (a) that Sprint Nextel had made sufficient and
    effective efforts to encourage subscribers to upgrade non-compliant
    handsets and (b) that Sprint Nextel has shown us the requisite path
    to full compliance with the 95% penetration requirement. In both
    respects, Sprint Nextel has failed to do so. As discussed below,
    Sprint Nextel's efforts were both insufficient and ineffective. The
    Sprint Nextel Request is devoid of any concrete showings indicative
    of a path to full compliance. There is no merit in the excuses
    Sprint Nextel has offered for its non-compliance. We thus are
    denying its request.

29. Efforts taken by Sprint Nextel leading up to the deadline to
    increase handset penetration levels did not result in sufficient
    gains in penetration levels. Sprint Nextel lists, among such
    efforts, the following: (1) marketing and promotional campaigns,
    including print advertisements promoting location services (but not
    including Phase II services) available with GPS-enabled
    handsets; (2) advertisements offering discounted handsets provided
    that the customer entered into a new two-year service contract, and
    at least in some cases, listing GPS capability as one of several
    handset functions, but only with respect to commercial navigation
    capabilities, rather than E911 purposes;[^95] (3) a promotion in
    which customers with two-year or older iDEN handsets could replace
    those handsets at the lowest promotional price offered on new iDEN
    handsets; and (4) giving customers who donated non-location capable
    phones a receipt that the customer could use when claiming a
    charitable deduction for tax purposes.[^96]

30. Given its low penetration levels, Sprint Nextel knew or should have
    known prior to 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, Sprint Nextel 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, Sprint Nextel's offer of free or
    reduced-price location-capable phones as an inducement to its
    subscribers to upgrade non-location capable handsets was coupled
    with a condition that subscribers also had to accept a renewed or
    extended service contract. Elimination of that condition likely
    would have made its efforts more effective. Indeed, eliminating the
    condition would have been consistent with the Commission's warning
    in 2001 \-- well before the December 31, 2005 deadline \-- that
    Nextel would have to take "special measures" to assure
    compliance.[^97] Moreover, Sprint and Nextel knew there was a
    critical need to reach compliance when the Commission approved their
    merger in 2005. In the merger application they had represented they
    would likely not meet the December 31, 2005 deadline. The Commission
    nevertheless stated that the merged company must meet the
    deadline.[^98]

31. The efforts that Sprint Nextel states will lead to compliance lack
    specifics and firm commitments. Despite having achieved poor
    location-capable handset penetration levels, Sprint Nextel fails to
    delineate specific efforts and firm commitments leading to
    compliance. Significantly, Sprint Nextel commits to little in the
    way of additional, more meaningful efforts. For example, Sprint
    Nextel states that it: (1) is developing a targeted marketing
    campaign aimed at customers with handsets that are not
    GPS-capable; (2) is considering favorable price plan offerings for
    customers who switch handsets; (3) hopes to provide an economic
    incentive to corporate, small business and government users
    otherwise unwilling to upgrade; and (4) is discussing with Motorola
    an upgrade incentive and further pursuing with Motorola the
    possibility of cash payments to reflash defective handsets.[^99] In
    light of the fact that Sprint Nextel's penetration rate, as of
    December 31, 2005, was only 81.3% and, as late as May 31, 2006, was
    still only at 86%, 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."[^100]

32. Motorola, in comments, claims Sprint Nextel has done "everything
    reasonably possible to meet this deadline . . . ."[^101] We
    disagree. Other carriers already have undertaken or committed to
    specific efforts beyond those described by Sprint Nextel. 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.[^102]
    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."[^103] Other Tier III carriers have also permitted handset
    upgrades without requiring any contract extension, have offered
    discounts on accessories, and have marketed range extenders to make
    upgrading more attractive to subscribers in rural areas with
    marginal service.[^104] Although not exhaustive, these examples
    illustrate more aggressive efforts that Sprint Nextel 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 Sprint Nextel, a Tier I
    carrier.[^105] We conclude, based on the totality of the
    circumstances, that, in light of the achieved levels of penetration,
    Sprint Nextel's efforts have been so insufficient that we must deny
    relief. Sprint Nextel's 81.3% penetration level by the December 31,
    2005 penetration deadline, and only 86% as of May 31, 2006, warrant
    referral of the matter to the Commission's Enforcement Bureau for
    appropriate action.

33. As noted above, Sprint Nextel expected to reach 95% penetration by
    December 31, 2005 among those customers served by the CDMA network
    inherited from Sprint.[^106] Accordingly, but for Sprint's
    acquisition of Nextel, Sprint would have been the only major
    handset-based carrier to have timely achieved compliance with the
    December 31, 2005 deadline. Although this factor alone is not enough
    to excuse Sprint Nextel from compliance with the 95% penetration
    requirement, it does merit consideration in the course of the
    enforcement proceeding to follow. In fact, because the enforcement
    process can take into account a wide range of factors in determining
    an appropriate remedy, including the fact that Sprint would have
    been the only CDMA carrier to achieve compliance within the
    applicable deadline, the enforcement process may be the most
    effective way to fashion a remedy for Sprint Nextel in this case.

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

-   To submit to the Commission quarterly status reports, beginning
    February 1, 2007 and until Sprint Nextel achieves 95% handset
    penetration. These reports must include detailed information that
    describes and discusses with specificity: (1) Sprint Nextel's
    efforts to encourage customers to upgrade to location-capable
    handsets; and (2) the percentage of Sprint Nextel customers with
    location-capable handsets. Given that Sprint Nextel has acquired
    Nextel Partners, these numbers should include Nextel Partners'
    subscriber base.

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

-   To 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 Sprint Nextel's
    network. These quarterly reports must be filed until one year after
    Sprint Nextel certifies compliance with the 95% handset penetration
    requirement. Given that Sprint Nextel has acquired Nextel Partners,
    they may elect to file consolidated reports.

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

# conclusion

35. It is amply clear that the measures Sprint Nextel 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 Sprint Nextel for a two-year waiver of its
    obligation to ensure that 95% of its customers have location-capable
    handsets. We also find that Sprint Nextel's 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.[^107]

#  PAPERWORK REDUCTION ACT 

36. 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

37. Accordingly, IT IS ORDERED, pursuant to Sections 1.3 and 1.925 of
    the Commission's rules, 47 C.F.R. §§ 1.3 and 1.925, that the
    foregoing *Order* IS ADOPTED.

38. IT IS FURTHER ORDERED that the Request for Limited Waiver by Sprint
    Nextel Corporation, filed Sept. 29, 2005, IS DENIED.

39. IT IS FURTHER ORDERED that Sprint Nextel is subject to the reporting
    requirements specified herein.

40. IT IS FURTHER ORDERED that the matter of the non-compliance of
    Sprint Nextel 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, Reply Comments and *Ex Parte* Filings**

[Comments]{.underline}

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

CTIA -- The Wireless Association (CTIA)

Motorola, Inc. (Motorola)

National Emergency Number Association (NENA)

North Carolina Wireless 911 Board

[Reply Comments]{.underline}

National Emergency Number Association (NENA)

Sprint Nextel Corporation (Sprint Nextel)

[*Ex Parte* Filings]{.underline}

Benton County Emergency Services

Bonneville County Emergency Communications

Dickinson County Administration & Emergency Services

Grady County Sheriff's Office

Grand Lodge, Fraternal Order of Police

Otsego County 911 Center

Sprint Nextel

State of Rhode Island and Providence Plantation

[^1]: *See* Sprint Nextel Corporation Request for Limited Waiver, WT
    Docket No. 05-286, filed Sept. 29, 2005 (Sprint Nextel Request). 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)
    (*Sprint Nextel Merger Order*). In June 2006, the Commission granted
    applications filed by Sprint Nextel and Nextel Partners, Inc.
    (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. Nextel
    Partners also has filed a request for waiver of the 95% handset
    penetration deadline. *See* Petition for Limited Waiver of Nextel
    Partners, Inc., WT Docket No. 05-302, filed Oct. 21, 2005. 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.

[^3]: *See* 47 C.F.R. § 20.18(g)(1)(v); Sprint Nextel Request at 6.

[^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]: *Sprint Nextel Merger Order*, 20 FCC Rcd at 14019-20 ¶ 144.

[^33]: *See* *id.* at 14020 ¶ 144; *see also* Letter from Laura L.
    Holloway, Nextel Communications, Inc., to Marlene H. Dortch,
    Secretary, Federal Communications Commission, CC Docket No. 94-102,
    filed July 11, 2005, at 1 ("Nextel has placed the Federal
    Communications Commission ('Commission') on notice that it likely
    will not be able to comply with the 95% benchmark, primarily due to
    the GPS software glitch that affected millions of A-GPS-capable
    Nextel handsets last summer.").

[^34]: *Sprint Nextel Merger Order*, 20 FCC Rcd at 14020 ¶ 144.

[^35]: Sprint Nextel Request at 1 n.1.

[^36]: *See Sprint Nextel Merger Order*, 20 FCC Rcd at 13970 ¶ 5.

[^37]: *See id.* at 13971 ¶ 8.

[^38]: Sprint Nextel Request at 5. Sprint Nextel indicates that,
    although it expected to reach 95% penetration among those customers
    served by the CDMA network inherited from Sprint, it anticipated
    that it would fall short of the benchmark for those customers served
    by the iDEN network formerly used by Nextel. *Id.* at 2.

[^39]: *See* Written *Ex Parte* Communication of Sprint Nextel
    Corporation, WT Docket No. 05-286, at 1 (filed Mar. 2, 2006) (Sprint
    Nextel March 2^nd^ *Ex Parte*).

[^40]: *See* Sprint Nextel Corporation E911 Deployment Status Report, CC
    Docket No. 94-102, filed August 1, 2006 (Sprint Nextel August 1,
    2006 Report), at 1.

[^41]: Sprint Nextel Request at 3; *see* Sprint Nextel Reply at 6.

[^42]: Sprint Nextel Request at 10; *see* Sprint Nextel Reply at 7.

[^43]: Sprint Nextel Request at 3.

[^44]: *Id*. at 3, 11, 12. Sprint Nextel asserts that, as of July 2005,
    approximately 3.5 million active customers possessed defective
    handsets. *Id.* at 26 n.54. Sprint Nextel subsequently reported
    that, but for the latent handset defect, its penetration level would
    have been 88% by December 31, 2005, and over 91% by May 31, 2006.
    *See* Sprint Nextel March 2^nd^ *Ex Parte* at 1; Sprint Nextel
    August 1, 2006 Report at 1.

[^45]: Sprint Nextel Request at 13-14.

[^46]: *Id*. at 14.

[^47]: *Id*.

[^48]: *Id.* at 25-27. Sprint Nextel notes that in one case, Nextel
    offered to replace, at no cost to the customer, 37,000 phones held
    by certain large customer groups; of those, only 3,095 requests for
    handsets were made. *Id.* at 26.

[^49]: Sprint Nextel Reply at 8.

[^50]: *See* Sprint Nextel Request at 14-15.

[^51]: *Id.* at 14-15, 17-18.

[^52]: *See id.* at 15-18.

[^53]: *See id.* at 18.

[^54]: *Id*. at 19-20; *see* Sprint Nextel Reply at 8.

[^55]: *See* Sprint Nextel Request at 18-19; Sprint Nextel Reply at 8.

[^56]: Sprint Nextel Request at 21.

[^57]: *Id.*

[^58]: *Id.*

[^59]: *See* *id.* at 24-25.

[^60]: *Id.* at 24.

[^61]: *See* *id.* at 35-36 (describing various marketing activities and
    incentives, and new handset features and services).

[^62]: *Id.* at 32.

[^63]: *See* Wireless Telecommunications Bureau Requests Comment on
    Sprint Nextel Request 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.
    05-286, *Public Notice*, 20 FCC Rcd 15859 (Wireless. Tel. Bur.
    2005).

[^64]: Motorola Comments on Sprint Nextel Request at 2 (emphasis in
    original).

[^65]: *Id.*

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

[^67]: CTIA Comments on Sprint Nextel Request at 4. In addition, the
    North Carolina Wireless 911 Board filed comments supporting Sprint
    Nextel's request, asserting that strict enforcement "would
    unnecessarily inconvenience customers and could undermine public
    safety in some cases by preventing access to 911." North Carolina
    Wireless 911 Board Comments on Sprint Nextel Request at 1. Seven
    other public safety entities, including a law enforcement
    association, several local PSAPs, and one statewide PSAP, also filed
    *ex parte* letters, all in support of Sprint Nextel's request. *See*
    App. A. An additional letter from a public safety entity supporting
    the request was filed as an exhibit to the request. *See* Sprint
    Nextel Request, Ex. 1 (Letter from Sheriff Wendell Hall, Santa Rosa
    County Sheriff's Office, Florida, to Marlene Dortch, Secretary,
    Federal Communications Commission, dated Oct. 12, 2005).

[^68]: APCO Comments on Sprint Nextel Request at 5-6; NENA Comments on
    Sprint Nextel Request at 7-9.

[^69]: APCO Comments on Sprint Nextel Request at 5.

[^70]: *See id*. at 5-6.

[^71]: *See id.* at 6 (emphasis in original).

[^72]: *Id.*

[^73]: NENA Comments on Sprint Nextel Request at 3.

[^74]: *See* *id.* at 8 (citing *Nextel Phase II Waiver Order*, 16 FCC
    Rcd at 18285 ¶ 23).

[^75]: *See id*. at 8.

[^76]: *See* *id.* at 9.

[^77]: *See* *id.*

[^78]: *See* *Non-Nationwide Carriers Order*, 17 FCC Rcd at 14853 ¶ 38.

[^79]: 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).

[^80]: *See* *Tier III Carriers Order*, 20 FCC Rcd at 7709-7710 ¶ 1;
    *Non-Nationwide Carriers Order*, 17 FCC Rcd at 14842-14843 ¶ 6.

[^81]: *See* Written *Ex Parte* Communication of Sprint Nextel
    Corporation, WT Docket No. 05-286, at 1-2 (filed April 3, 2006).

[^82]: *See id*.

[^83]: *See supra* n.4.

[^84]: 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).

[^85]: *Id.* at 17413 ¶ 53.

[^86]: Sprint Nextel's generalized assertion 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.

[^87]: *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.").

[^88]: *See* NENA Comments in WT Docket No. 05-288 (filed Oct. 21, 2005)
    at 4. *See also CTIA/RCA Order* at ¶ 22.

[^89]: *See* Sprint Nextel Request at 3, 11. Sprint Nextel states that
    the defect reduced the number of location-capable handsets its
    network to zero. *See* Sprint Nextel Reply at 8. Sprint Nextel
    elaborates that two of its location-capable models were not directly
    affected by the glitch, but that because of the network upgrades
    necessary to restore location-capability to the other handsets,
    these handset models also required software upgrades in order to
    provide Phase II service. *See* Sprint Nextel Petition at 13 n.30.

[^90]: *See* NENA Comments on Sprint Nextel Request at 9.

[^91]: *See* Sprint Nextel Request at 3.

[^92]: *See* *id*. at 25-27.

[^93]: *See id*. at 13.

[^94]: *See* Sprint Nextel March 2^nd^ *Ex Parte* at 1.

[^95]: *See* Sprint Nextel Reply at App. C (including an advertisement
    that subscribers can "navigate with GPS").

[^96]: *See* Sprint Nextel Request at 24-25, 35.

[^97]: *See* *Nextel Phase II Waiver Order*, 16 FCC Rcd at 18285 ¶ 23.

[^98]: *See Sprint Nextel Merger Order*, 20 FCC Rcd at 14020 ¶ 144.

[^99]: *See* Sprint Nextel Request at 36.

[^100]: *See* *Fourth MO&O*, 15 FCC Rcd at 17458 ¶44.

[^101]: Motorola Comments on Sprint Nextel Request at 3.

[^102]: *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.

[^103]: *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.

[^104]: *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; marketing external antennas and
    signal boosters to enhance range of digital phones for rural
    subscribers with marginal service).

[^105]: 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.

[^106]: *See supra* note 38.

[^107]: *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").