**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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| State of Maryland                | ** |                              |
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| and Sprint Nextel                | *  |                              |
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| Mediation No. TAM-11128          | ** |                              |
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**MEMORANDUM OPINION AND ORDER**

**Adopted: October 24, 2006 Released: October 24, 2006**

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 1 mediation by the 800
    MHz Transition Administrator (TA) and involving issues in dispute
    between the State of Maryland (Maryland) and Sprint Nextel
    Corporation (Sprint). The sole issue in dispute is whether it is
    necessary for Maryland to conduct drive testing under the TSB 88
    standard as the basis for determining whether it has received
    comparable facilities following band reconfiguration. Based on our
    *de novo* review of the mediation record, the recommended resolution
    submitted by the TA-appointed mediator in this case, and the
    parties' position statements, we find that Sprint should not be
    required to underwrite TSB 88 drive testing by Maryland, and that
    Sprint should not be bound by the results of such testing if
    Maryland elects to use TSB 88 procedures.

# background

2.  The *800 MHz R&O* and subsequent orders in this docket require
    Sprint to negotiate a frequency relocation agreement (FRA) with each
    800 MHz licensee that is subject to rebanding.[^1] The FRA must
    provide for relocation of the licensee's system to its new channel
    assignment at Sprint's expense, including the expense of retuning or
    replacing the licensee's equipment as required.[^2] Sprint must
    provide the relocating licensee with "comparable facilities" on the
    new channel(s), and must provide for a seamless transition to enable
    licensee operations to continue without interruption during the
    retuning process.

3.  To facilitate FRA negotiations, the Commission established a
    three-month voluntary negotiation period and a three-month mandatory
    negotiation period for Sprint to negotiate with each relocating
    licensee.[^3] If a licensee and Sprint are unable to negotiate a FRA
    at the end of the mandatory negotiation period, they must enter into
    a thirty-day mediation period under the auspices of a TA-appointed
    mediator. If the parties do not reach agreement by the end of the
    mediation period, the mediator forwards the mediation record and a
    recommended resolution to the Commission's Public Safety and
    Homeland Security Bureau (PSHSB).[^4] Within ten business days of
    the mediator's submission of the record and recommended resolution,
    the parties may file position statements. Position statements may
    not, however, raise issues not presented during mediation.[^5]
    Thereafter, PSHSB conducts a *de novo* review of the mediation
    record, evaluates the parties' position statements and the
    mediator's recommended resolution, and issues an order disposing of
    all disputed issues.[^6]

4.  In the instant case, Maryland's 800 MHz system (licenses WNRM957 and
    WNHW417) involves two agencies: (1) Baltimore Washington
    International -- Thurgood Marshall Airport (BWI) and (2) the
    Maryland Port Authority (Port Authority).[^7] The BWI system
    consists of 33 radios and a single repeater. The Port Authority
    system is a 5-channel trunked system with approximately 300 radios
    and five repeater base stations.[^8] The TA's Regional
    Prioritization Plan calls for Maryland to relocate its system during
    Wave I of the multi-phased reconfiguration process.[^9] In
    negotiations, the parties could not reach agreement on what type of
    testing is required to ensure that Maryland has received "comparable
    facilities," who should pay for the testing, and what happens if the
    testing demonstrates that Maryland has not received "comparable
    facilities."[^10] As a result, Maryland and Sprint did not conclude
    a FRA during either the voluntary mediation period, which began on
    June 27, 2005, and ended on September 26, 2005, or during the
    mandatory negotiation period, which began on September 28, 2005 and
    ended on December 26, 2005.[^11] Because the parties had not
    negotiated a FRA by that date, they entered into mediation on
    December 26, 2005. The mediation period ended on February 8, 2006,
    but was extended to March 3, 2006.[^12] The issue regarding the
    appropriate level of testing to determine whether Maryland has
    received comparable facilities remained unresolved.[^13] On March
    13, 2006, the mediator forwarded the mediation record and his
    Recommended Resolution to PSCID.[^14] Maryland and Sprint filed
    their position statements on March 27, 2006.

5.  Under the Commission's orders in this proceeding, Sprint bears the
    burden of proving that Maryland's relocated facilities are
    "comparable" on their new channel assignment within the meaning of
    the *800 MHz R&O.*[^15] Maryland bears the burden of proving that
    the funding it has requested for relocation is reasonable, prudent,
    and the "minimum necessary to provide facilities comparable to those
    presently in use."[^16]

## The TSB 88 Standard 

6.  This matter involves TSB 88, a technical standard published by the
    Telecommunications Industry Association (TIA). It is a technical
    bulletin describing a methodology for predicting coverage and
    interference in the narrowband spectrum environment that the
    Commission created for Private Land Mobile Radio Services (PLMRS)
    stations operating below 512 MHz.[^17] In general, the TSB 88
    methodology is used by frequency coordinators and others to
    determine channel availability in the PLMRS bands below 512 MHz
    based on predicted contours, *i.e.*, TSB 88 is used to ensure that
    the predicted interference contour of a proposed station does not
    impinge on the service contours of co-channel and adjacent channel
    stations.

## Parties' Positions

7.  Maryland asserts that TSB 88 testing is necessary in this case to
    ensure that it receives comparable 800 MHz facilities in the
    retuning process.[^18] Maryland proposes to conduct drive tests
    using TSB 88 standards that would measure the quality of the
    system's signal at various locations.[^19] Maryland then proposes to
    conduct the same drive tests after rebanding to determine whether
    the interference environment has changed as a result of the
    proximity of other co-channel systems on the new channel to which
    Maryland has relocated, or as a result of adjacent channel
    systems.[^20] Maryland proposes that it would pay the initial cost
    of testing, but that Sprint must agree to accept and be bound by the
    TSB 88 test results. Maryland further seeks to include language in
    the FRA that if TSB 88 testing demonstrates that Maryland has not
    received comparable facilities; Sprint will fix the problem promptly
    at its own expense and reimburse the Maryland for its costs,
    including the costs of the TSB 88 tests.[^21] Maryland argues that
    such comparative drive testing is necessary because public safety is
    at stake and no other type of testing will adequately demonstrate
    whether it has received comparable facilities.[^22]

8.  Sprint contends that the BWI and Port Authority systems are not
    sufficiently complex to require such drive testing. Sprint expresses
    the view that the TA would reject the costs of such testing at BWI
    and the Port as "unnecessary and imprudent."[^23] Sprint notes that
    in the *800 MHz Report & Order*, the Commission declined to use TSB
    88 as the basis for defining public safety interference protection
    rights in the 800 MHz band.[^24] Sprint further notes that in
    guidance provided at the request of the mediator, the TA questioned
    the need for TSB 88 testing in this case: the TA found that "the
    context of TSB-88A was for spectrum refarming (not reconfiguration)
    and the potential for interference from mixing digital and analog
    modulation and means to provide prior coordination. In this case the
    licensee is looking to do some sort of TSB-88A study after the fact,
    in a case where the situation is not predictive but reactive."[^25]
    Sprint concludes that the only testing necessary for the Maryland
    systems at issue herein is repeater-site measurements of transmitter
    power, receiver sensitivity, insertion loss, and duplexer frequency
    response and antenna/feedline return loss sweep.[^26]

9.  The TA mediator found no compelling reason to require Sprint to
    accept TSB 88 testing, much less require Sprint to pay for it.[^27]
    The mediator found that the systems in question are relatively
    simple and can be adequately tested using simpler and less costly
    methods, and that the Commission in the *800 MHz R&O* clearly
    concluded that TSB 88 testing is generally not applicable to the 800
    MHz reconfiguration process.[^28]

# discussion

10. For the reasons set forth below, we do not believe that drive
    testing is necessary to ensure that Maryland will receive comparable
    facilities. Comparable facilities are those that will provide the
    same level of service as the incumbent's existing facilities, with
    transition to the new facilities as transparent as possible to the
    end user.[^29] In this case, the record indicates that the BWI and
    Port Authority systems are not complex and that relocation of the
    systems will involve retuning rather than replacement of equipment.
    In a non-complex returning case such as this, the comparable
    facilities standard is typically satisfied where the licensee is
    using the same equipment and is operating at the same effective
    radiated power and antenna height on the replacement channel that it
    used on its original channel.

11. The guidelines established by the TA also support the conclusion
    that drive testing is not necessary because the Maryland systems can
    be adequately tested using simpler and less costly methods.[^30] The
    TA has issued guidelines stating that as a general matter, "(i)n the
    case of testing simpler systems or smaller changes to large systems,
    repeater-site measurements of transmitter power, receiver
    sensitivity, insertion loss, duplexer frequency response, and
    antenna/feedline return loss should be adequate to verify comparable
    coverage."[^31] The TA has identified drive testing is appropriate
    only (1) where significant changes are made to the antenna and
    transmissions subsystems, or (2) for larger, more complex systems
    such as simulcast systems. [^32] Neither of these circumstances
    applies in this case.

12. Moreover, TSB 88 is generally not used to test 800 MHz band systems
    because the 800 MHz channel assignments are based on minimum fixed
    distance separation rather than on predicted contours. The
    applicable rules provide that 800 MHz co-channel systems (both
    pre-rebanding and post-rebanding) are to be spaced at least seventy
    miles apart.[^33] Thus, the Maryland systems will receive this same
    level of protection on their new channels that they received on
    their old channels. Even if TSB 88 testing were to reveal
    differences in the Maryland systems' pre- and post-rebanding
    environment with respect to signals generated by co-channel and
    adjacent channel systems, such differences are not germane to the
    issue of comparability because licensing and interference protection
    are distance-based rather than contour-based. So long as a
    licensee's replacement channel has no co-channel stations within
    seventy miles, and so long as adjacent channel operations comply
    with the applicable rules limiting out of band emissions, the
    replacement channel is presumptively comparable to the licensee's
    original channel even if the original channel did not have the same
    configuration of co-channel and adjacent channel systems. The two
    channels are comparable because even if rebanding had not occurred,
    the licensee would have had to accept the presence of such
    operations under the rules had they been licensed on or adjacent to
    its original channel.[^34] Comparable facilities does not entitle a
    licensee to the exact same interference environment that it had
    prior to rebanding, provided that the licensee's retuned system is
    protected by the same interference rules that applied prior to
    rebanding.

13. In the *800 MHz R&O*, the Commission rejected a proposal to apply
    TSB 88 standards in defining the interference protection rights of
    public safety licensees in the 800 MHz band.[^35] Measuring coverage
    and interference on a given channel by drive test measurements is
    complex, time-consuming, and expensive. Measurements of relatively
    weak signals must be taken at a large number of points in order to
    be statistically significant and the distant, potentially
    interfering, transmitters must be active when the measurements are
    made.[^36] Even then, as the TSB 88 bulletin notes, "the entire
    concept of conformance testing relies on statistics" and the results
    of the measurements will not necessarily determine whether reliable
    interference-free service is available other than at the point and
    during the time the measurement was made. Moreover, differences in
    TSB 88 measurements may be the result of environmental factors that
    have nothing to do with rebanding.[^37]

14. Finally, we note that the purpose of reconfiguration of the 800 MHz
    band is to eliminate the interference-prone interleaving of ESMR and
    public safety systems in the 800 MHz band.[^38] The reconfigured 800
    MHz band will permit future public safety radios to be more
    interference resistant.[^39] This is particularly true with respect
    to low-site ESMR and cellular telephone signals.[^40] After
    reconfiguration, a public safety licensee will be entitled to avail
    itself of the unique interference protection standards and
    interference abatement rules and procedures that are valuable
    components of the re-channelization process.[^41] As a result, the
    Maryland systems will also receive enhanced post-rebanding
    protection against interference caused by low-site systems without
    the need for the type of testing proposed by Maryland.

15. Accordingly, we conclude that Sprint should not be required to
    underwrite TSB 88 drive testing by Maryland, and that Sprint should
    not be bound by the results of such testing if Maryland elects to
    use TSB 88 procedures. Thus, the testing proposed by Maryland is
    inconsistent with the TA's guidelines, and is not necessary or
    germane to ensuring that Maryland receives comparable facilities as
    provided by the *800 MHz R&O*.

# Ordering Clause

16. Accordingly, pursuant to the authority of Sections 0.131 and 0.331
    of the Commission's rules, 47 C.F.R. §§ 0.131, 0.331; 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.

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

[^1]: *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, 15021-45, 15069 ¶¶ 88-141,
    189 (2004) as amended by Erratum, 19 FCC Rcd 19651 (2004)*,* and
    Erratum, 19 FCC Rcd 21818 (2004) (*800 MHz R&O*); Improving Public
    Safety Communications in the 800 MHz Band, *Supplemental Order and
    Order on Reconsideration*, 19 FCC Rcd 25120 (2004) (*800 MHz
    Supplemental Order*)*;* and Improving Public Safety Communications
    in the 800 MHz Band, *Memorandum Opinion and Order*, 20 FCC Rcd
    16015 (2005) as amended by Erratum, DA 05-3061 rel. Nov. 25, 2005
    (*800 MHz MO&O*)*.*

[^2]: The channel change(s) are commonly referred to as a "retuning" of
    the system. In some instances, however, a channel change requires
    that equipment must be replaced rather than retuned. For
    convenience, unless the context requires otherwise, "retuning" as
    used herein also encompasses equipment replacement if existing
    equipment cannot be retuned.

[^3]: 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 (2005).

[^4]: The *800 MHz R&O o*riginally provided for referral and *de novo*
    review of unresolved mediation issues by the Public Safety and
    Critical Infrastructure Division of the Commission's Wireless
    Telecommunications Bureau (PSCID). *800 MHz R&O*, 19 FCC Rcd at
    15075 ¶ 201. 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,* FCC 06-35, rel. Sep. 25, 2006.

[^5]: 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*). ¶ 4.

[^6]: *Id.* at 758-59 ¶¶ 4, 10.

[^7]: TA Mediator Recommended Resolution (RR) at 3.

[^8]: *Id*.

[^9]: *Id*. at 1.

[^10]: *Id*. at 2-3.

[^11]: *Id*. at 2.

[^12]: *Id*.

[^13]: *Id*. at 2-3.

[^14]: Transmittal of Record and Request for Confidential Treatment
    (March 13, 2006).

[^15]: *800 MHz R&O*, 19 FCC Rcd at 15064 ¶ 178.  

[^16]: *Id*. at 15074 ¶ 198; *800 MHZ Supplemental Order*, 19 FCC Rcd at
    25152 ¶ 71; *De Novo Procedures PN,* 21 FCC Rcd at 259 ¶ 9.

[^17]: TSB-88-B-1, Wireless Communications Systems -- Performance in
    Noise and Interference -- Limited Situations -- Recommended Methods
    for Technology-Independent Modeling, Simulation, and Verification
    (May 2005). This iteration of TSB 88 supersedes other earlier
    versions, including TSB 88 (January 1998), TSB-88-1 (December 1998),
    TSB-88-A (June 1999), TSB-88-A-1 (January 2002), and TSB-88-B
    (September 2004).

[^18]: *See generally* Supplemental Comments and Proposed Resolution
    Memorandum of the State of Maryland (February 6, 2006).

[^19]: *Id.* at 11.

[^20]: Maryland's Proposed FRA Language (February 21, 2006).

[^21]: *Id. at 11*

[^22]: Supplemental Comments and Proposed Resolution Memorandum of the
    State of Maryland (February 6, 2006) at 3.

[^23]: Reply of Nextel Communications, Inc. to the Supplemental Comments
    and Proposed Resolution Memorandum of the State of Maryland
    (February 10, 2006) at 2.

[^24]: *Id*. at 3-4, *citing 800 MHz R&O*, 19 FCC Rcd at 15038 ¶ 125.

[^25]: *Id*. at note 6, Appendix B.

[^26]: Statement of Position of Nextel Communications, Inc. (March 27,
    2006) at 8.

[^27]: RR at 8.

[^28]: *Id. citing* *800 MHz R&O*, 19 FCC Rcd 15038 ¶ 125.

[^29]: The standards for comparable facilities are: (1) equivalent
    channel capacity; (2) equivalent signaling capability, baud rate and
    access time; (3) coextensive geographic coverage; and (4) operating
    costs. *800 MHz R&O*, 19 FCC Rcd at 15077 ¶ 201.

[^30]: These systems are not simulcast systems, and there is nothing in
    the record to indicate that significant alterations will be made to
    the antennas or any transmission subsystems.

[^31]: TA Reconfiguration Handbook, 2.0, at 92. This version of the
    Handbook was released toward the latter stages of the mediation in
    this matter, but is consistent with informal guidance provided by
    the TA at the request of the parties. *See* Nextel Supp. Reply,
    Appendix B.

[^32]: *Id*. "Simulcast" systems use two or more base stations operating
    on the same channel with overlapping coverage. In a simulcast
    system, a channel change can require certain adjustments to the
    relative phase of the signal from respective transmitters so that a
    dead spot does not develop because the two signals cancel one
    another in the overlap area. The TA's guidelines provide that signal
    strength measurements in the overlap area may be necessary to
    validate the adjustments. Thus, the TA Handbook provides: "For
    larger systems, primarily simulcast systems, coverage drive testing
    may also be part of the acceptance test."

[^33]: See 47 CFR § 90.621(b). Co-channel spacing may be less than 70
    miles if stations use reduced antenna height and lower power in
    accordance with the Commission's short-spacing table.

[^34]: The Commission rejected requests that "comparable facilities"
    should guarantee exact post-reconfiguration replication of a
    relocating licensee's service area and spectrum capacity, in large
    part because of the dynamic licensing environment in the private
    land mobile radio services and in public safety radio spectrum. *See
    800 MHz MO&O,* 20 FCC Rcd 16031-33 ¶¶ 36-40.

[^35]: *800 MHz R&O*, 19 FCC Rcd at 15038 ¶ 125. Although the Commission
    found that some parts of TSB 88 might be useful in 800 MHz
    interference analysis, it concluded that "we do not think it wholly
    applicable to the environment in which 800 MHz public safety systems
    operate."

[^36]: "Using \[TSB 88\] methodology, the State has determined that 678
    test locations are required to test the CPC \[Channel Performance
    Criterion\] reliability at the Port and BWI Airport." Supplemental
    Comments Proposed Resolution Memorandum of the State of Maryland
    (February 6, 2006) at 11.

[^37]: For example, the strength of an 800 MHz signal at a given
    location before and after a channel has been changed may be affected
    by factors independent of the operating parameters of the station,
    such as foliage whose density varies as a function of the time of
    year.

[^38]: *800 MHz R&O*, 19 FCC Rcd at 15047-15048 ¶ 147.

[^39]: *Id*. at 15046 ¶ 145.

[^40]: *Id*. note 389.

[^41]: *Id*. at 15021-15045 ¶¶ 88-141.