**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | *  | PS Docket No. 07-69          |
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| **CITY OF BOSTON**               | ** | Mediation No. TAM-11155      |
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| **and**                          | *  |                              |
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| **SPRINT NEXTEL CORPORATION**    | ** |                              |
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| Relating to Rebanding Issues in  | *  |                              |
| the 800 MHz Band                 | *) |                              |
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**HEARING DESIGNATION ORDER**

**Adopted: April 4, 2007 Released: April 5, 2007**

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

1.  By this Hearing Designation Order, pursuant to Section 90.677(d)(2)
    and Section 0.191(f) of the Commission's Rules,[^1] we grant a
    Petition for *De Novo* Review (Petition),[^2] filed on December 28,
    2006, by the City of Boston, Massachusetts (City of Boston), and
    commence a hearing proceeding before a Federal Communication
    Commission (Commission) Administrative Law Judge to resolve
    specific, disputed 800 MHz rebanding issues between the City of
    Boston and Sprint Nextel Corporation (Sprint Nextel). As discussed
    below, the issues relate to the reconfiguration of the City of
    Boston Police Department's 800 MHz communications system and the
    reconfiguration of the City of Boston's 800 MHz Trunking and
    Transportation system.

2.  In 2004, the Commission adopted the first of several orders which,
    collectively, established a comprehensive plan for reconfiguration
    (rebanding) of the 800 MHz band.[^3] The Rebanding Orders recognized
    that, for years, licensees of public safety systems operating in the
    800 MHz band, such as the City of Boston, had encountered increasing
    amounts of interference from commercial mobile radio service (CMRS)
    providers that also were operating in the 800 MHz band, particularly
    Sprint Nextel.[^4] The Rebanding Orders provided, among other
    things, that public safety licensees and CMRS licensees would be
    relocated to different parts of the 800 MHz band to provide adequate
    separation of their generally incompatible operations.[^5]

3.  The complex rebanding scheme contemplated that Sprint Nextel would
    negotiate a Frequency Relocation Agreement (FRA) with each public
    safety licensee whose system was slated to be relocated.[^6] The FRA
    was required to establish the terms, conditions and costs of
    relocating the public safety system to its new channel assignment(s)
    at Sprint Nextel's expense, including the expense of retuning or
    replacing, as required, the public safety licensee's equipment.[^7]
    The Commission also directed that Sprint Nextel must provide public
    safety licensees with "comparable facilities" on their new
    channel(s), and a seamless transition to enable public safety
    operations to continue without interruption during the relocation
    process.[^8]

4.  To facilitate FRA negotiations, the Commission established a
    three-month voluntary negotiation period and a three-month mandatory
    negotiation period for Sprint Nextel to negotiate with each public
    safety licensee.[^9] If the parties are unable to negotiate an FRA
    by the end of the mandatory negotiation period, they are required to
    enter into mediation.[^10] If the parties are unable reach agreement
    by the end of the mediation period, the mediator refers the
    mediation record and a recommended resolution to the Commission's
    Public Safety and Homeland Security Bureau (PSHSB).[^11] Within ten
    business days of such referral, the parties have the opportunity to
    file position statements on issues limited to those raised during
    mediation.[^12] Thereafter, PSHSB conducts a *de novo* review of the
    mediation record, evaluates the parties' respective position
    statements and the mediator's recommended resolution, and issues an
    order disposing of all disputed issues.[^13] Thereafter, "any party
    to the dispute wishing to appeal the decision may do so by filing
    with the Commission, within ten days of the effective date of the
    initial decision, a Petition for *de novo* review; whereupon the
    matter will be set for an evidentiary hearing before an
    Administrative Law Judge."[^14]

5.  The instant matter involves an appeal by the City of Boston of a
    PSHSB decision disposing of disputed issues following unsuccessful
    mediation between the City of Boston and Sprint Nextel.[^15] The
    *Boston Order* arose from two companion cases. The first case
    involved reconfiguration of the 800 MHz communications system of the
    Boston Police Department (BPD), and the second case involved
    reconfiguration of the City of Boston's 800 MHz Trunking and
    Transportation (BTT) system. In its *Boston Order*, PSHSB determined
    that the City of Boston's purchase of inventory-tracking and
    management software from MCM Technology LLC (MCM) in both the BPD
    and BTT cases was not a recoverable rebanding-related expense.[^16]
    PSHSB also denied the City of Boston's request in the BTT case to
    modify language in the Change Order procedures of its FRA to give
    either party unilateral authority to cease all performance under the
    FRA in the event that the other party disputed a change order
    request.[^17] The City of Boston, by its Petition, seeks review *de
    novo* of these disputed issues by an Administrative Law Judge.

6.  Section 90.677(d)(2) of the Commission's rules allows either party
    to a rebanding dispute, as a matter of right, to appeal a Bureau
    decision on disputed issues referred to from mediation by
    petitioning for an evidentiary hearing before an Administrative Law
    Judge.[^18] The petition for a hearing must be filed within ten days
    of the effective date of the Bureau order. In the instant case,
    because the City of Boston is a party in a rebanding dispute, and
    has filed an appeal of a Bureau decision within ten days of the
    effective date thereof, we find that the Petition satisfies the
    requirements of Section 90.677(d)(2). Therefore, the Petition is
    hereby granted, and the disputed issues are designated for hearing.

7.  Accordingly, IT IS ORDERED that the Petition for *De Novo* Review,
    filed on December 28, 2006, by the City of Boston, Massachusetts, IS
    GRANTED.

8.  IT IS FURTHER ORDERED that, pursuant to Section 90.677(d)(2) of the
    Commission\'s Rules, 47 C.F.R. § 90.677(d)(2), the BPD and BTT
    cases, as described above, ARE DESIGNATED FOR HEARING before an
    Administrative Law Judge, at a time and place to be specified in a
    subsequent order, on the following issues:

    a\. To determine, in the matter of the BPD case, whether Sprint
    Nextel is obligated to pay the City of Boston for inventory-tracking
    and management software from MCM Technology, LLC, and, if so, the
    amount of such payment, and

    b\. To determine, in the matter of the BTT case, whether Sprint
    Nextel is obligated to pay the City of Boston for inventory-tracking
    and management software from MCM Technology, LLC, and, if so, the
    amount of such payment.

    c\. To determine, in the matter of the BTT case, the appropriate
    contractual language to govern the change order process in the FRA
    entered into between the City of Boston and Sprint Nextel.

9.  IT IS FURTHER ORDERED that the burden of proceeding with the
    introduction of evidence and the burden of proof with respect to all
    issues specified herein SHALL BE UPON the City of Boston.[^19]

10. IT IS FURTHER ORDERED, pursuant to Section 1.221(c) of the
    Commission's Rules, 47 C.F.R. § 1.221(c), that, to avail themselves
    of the opportunity to be heard, the City of Boston and Sprint
    Nextel, by their respective counsel, SHALL EACH FILE with the
    Commission, in triplicate, within 20 calendar days of the mailing of
    this Hearing Designation Order, a written appearance stating that it
    will appear on the date fixed for hearing and present evidence on
    the issues specified in the Hearing Designation Order.

11. IT IS FURTHER ORDERED, pursuant to Section 1.221(f), 47 C.F.R. §
    1.221(f), that Sprint Nextel SHALL FILE the hearing fee specified in
    Section 1.1102(11) of the Commission's Rules, 47 C.F.R. §
    1.1102(11), with its written appearance.

12. IT IS FURTHER ORDERED, pursuant to Section 1.1114(f) of the
    Commission's rules, 47 C.F.R. § 1.1114(f), that the City of Boston
    IS EXEMPT from filing, and need not file, in connection with this
    hearing proceeding, a hearing fee with its written appearance.

13. IT IS FURTHER ORDERED that the Chief, Enforcement Bureau, SHALL BE
    MADE A PARTY to this proceeding without the need to file a written
    appearance.

14. IT IS FURTHER ORDERED that copies of this Hearing Designation Order
    SHALL BE SENT, via Certified Mail - Return Receipt Requested, to:
    The City of Boston, c/o Robert H. Schwaninger, Jr., Esq.,
    Schwaninger and Associates, P.C., 1331 H Street, N.W., Suite 500,
    Washington, DC 20005; and to Sprint Nextel, c/o Stacey Lantange,
    Esq., Drinker Biddle & Reath, LLP, 1500 K Street, N.W., Suite 1100,
    Washington, DC 20005-1209.

15. IT IS FURTHER ORDERED that this Hearing Designation Order or a
    summary thereof SHALL BE PUBLISHED at the earliest practicable date
    in the Federal Register.

FEDERAL COMMUNICATIONS COMMISSION

David L. Furth Associate Bureau Chief

Public Safety and Homeland Security Bureau

[^1]: 47 C.F.R. §§ 0.191(f), 90.677(d)(2).

[^2]: Petition for De Novo Review filed by the City of Boston,
    Massachusetts (filed Dec. 28, 2006) (Petition).

[^3]: *See* Improving Public Safety Communications in the 800 MHz Band,
    *Report and Order, Fifth Report and Order, Fourth Memorandum Opinion
    and Order, and Order*, WT Docket No. 02-55, 19 FCC Rcd 14969,
    15021-45, 15069 ¶¶ 88-141, 189 (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
    (2004)*;* and Improving Public Safety Communications in the 800 MHz
    Band, *Memorandum Opinion and Order*, 20 FCC Rcd 16015 (2005)
    (collectively, "Rebanding Orders")*.*

[^4]: *800 MHz Report and Order*, 19 FCC Rcd at 15045-15079 ¶¶ 142-207.

[^5]: *Id*.

[^6]: *Id* at 15078 ¶ 201.

[^7]: *Id*.

[^8]: *Id.* at 14986 ¶ 26.

[^9]: Wireless Telecommunications Bureau Approves the Basic
    Reconfiguration Schedule Put Forth in the Transition Administrator's
    800 MHz Regional Prioritization Plan, *Public Notice*, 20 FCC Rcd
    5159, 5160 (WTB 2005).

[^10]: *800 MHz Report and Order*, 19 FCC Rcd at 15077 ¶ 201.

[^11]: Originally, the mediator was to forward the mediation record and
    a recommended resolution to the Chief of the Public Safety and
    Critical Infrastructure Division of the Commission's Wireless
    Telecommunications Bureau. *See* Wireless Telecommunications Bureau
    Announces Procedures for De Novo Review in the 800 MHz Public Safety
    Proceeding, *Public Notice,* 21 FCC Rcd 758 (WTB 2006) (*De Novo
    Procedures PN*). *See also* 47 C.F.R. § 90.677(d) (2005). However,
    on September 25, 2006, the Commission delegated this authority to
    the Public Safety and Homeland Security Bureau. *See* Establishment
    of Public Safety and Homeland Security Bureau, *Order,* 21 FCC Rcd
    10867 (2006).

[^12]: *De Novo Procedures PN,* 21 FCC Rcd at 759 ¶ 4.

[^13]: *Id.* at 258-59 ¶¶ 4, 10.

[^14]: 47 C.F.R. § 90.677(d)(2).

[^15]: City of Boston and Sprint Nextel, *Memorandum Opinion and Order*,
    21 FCC Rcd. 14661 (PSHSB 2006) (*Boston Order*).

[^16]: *Id.* at 14665 ¶ 16.

[^17]: *Id*. at 14670-71 ¶¶ 31-32.

[^18]: 47 C.F.R § 90.677(d)(2). As we stated in the *De Novo Procedures*
    PN, *supra* n. 11, the evidentiary hearing before the Administrative
    Law Judge will be governed by Sections 1.201-1.364 of the
    Commission's Rules, 47 C.F.R. §§ 1.201-1.364. *De Novo Procedures
    PN*, 21 FCC Rcd at 760 ¶ 11 n.12

[^19]: *See* 47 C.F.R. § 1.254.