The Great Public Safety Migration: Where Are We Now With 800 MHz Reconfiguration?

On June 27, 2005, new federal government rules set in motion a mandatory relocation of certain state and local government public safety networks to different channels. This alert updates our prior July 2005 alert on the subject, and identifies the types of public safety networks subject to relocation. In addition, this alert provides state and local governments with an overview of public safety network migration and opportunities to receive full reimbursement from Sprint Nextel Corporation (Sprint Nextel) for all necessary and reasonable costs (including legal and engineering fees) associated with planning as well as implementing relocation.

Public Safety Systems in the 800 MHz Band: Why the Move?

More than 35 years ago, the FCC established a spectrum allocation in the 800 MHz band to serve as a home for high-capacity, interoperable public safety networks. Today, state and local governments throughout the country use these 800 MHz band networks for critical public safety communications. Substantial public resources have been dedicated to construction, operation and maintenance of our nation’s 800 MHz public safety networks, but in recent years, reliability and performance has become increasingly compromised by other types of 800 MHz band operations.

Spectrum adjacent to that used by public safety is occupied by commercial providers of radio services, most notably, certain networks operated by Sprint Nextel. Sprint Nextel networks use digital technologies and consist of many low-powered transmitter sites that intensively reuse spectrum so that Sprint Nextel may easily expand to accommodate its growing customer base. These Sprint Nextel networks, however, may cause harmful interference to adjacent 800 MHz public safety communications networks. The FCC decided to take action to resolve the problem of interference with critical 800 MHz public safety communications systems. Petitions for reconsideration of that initial decision were just resolved, with the FCC affirming its original decisions with certain modifications. Modifications relevant to public safety licensees are highlighted below.

The FCC adopted a two-pronged strategy to provide public safety with interference relief. First, the FCC held that the licensees of 800 MHz public safety systems (i.e., state and local governments, in most cases) are entitled to protection from “unacceptable interference,” and adopted standard interference resolution procedures for reporting 800 MHz interference incidents. Sprint Nextel (and other cellular licensees) that cause or contribute to unacceptable interference are responsible for resolving the problem promptly at no cost to the public safety licensee. On reconsideration, the FCC declined to grant public safety licensees in heavily congested Wave 1 areas the higher level of interference protection during reconfiguration that will govern the post-reconfiguration environment. The FCC found that imposing the stricter interference protection criteria would significantly impair the service quality of Sprint Nextel and other affected commercial service providers. However, public safety will continue to have access to an expedited interference resolution process, and the public interest would best be served by expedited reconfiguration so that the stricter interference protection criteria come into effect faster.

Second, the FCC adopted a long-term solution for the 800 MHz interference by ordering “band reconfiguration.” Band reconfiguration addresses the interference problem by relocating public safety licensees to “comparable facilities” (i.e., other spectrum) at the lower end of the 800 MHz band. As a result of this band reconfiguration, public safety will be in an 800 MHz band segment separate from Sprint Nextel and cellular, an “interference buffer” between the band segments will be in place, and the possibility of unacceptable interference will be minimized. In addition, public safety will gain an average of 4.5 MHz of additional 800 MHz spectrum, and the 800 MHz public safety allocation will be adjacent to 700 MHz public safety operations, thereby promoting improved interoperability.

Sprint Nextel is required to provide public safety licensees with comparable facilities and fund all reasonable reconfiguration costs. In exchange, Sprint Nextel gains the right to operate paired 5 MHz channel blocks in the 1.9 GHz band, and have access to the spectrum cleared by public safety licensees in the 800 MHz band.

Reconfiguration is mandatory, not optional for all affected 800 MHz public safety licensees. The reconfiguration process is national in scope, and must be completed no later than June 26, 2008. Given these circumstances, the FCC decided to appoint a Transition Administrator (TA), an independent entity that will oversee the reconfiguration. The TA establishes a relocation schedule, notifies public safety licensees when voluntary relocation negotiations with Sprint Nextel will start, specifies replacement spectrum, approves reconfiguration costs and resolves disputes. To learn more about the TA, visit www.800ta.org.

When and How Do Public Safety Systems Negotiate With Sprint Nextel To Relocate?

With the FCC’s approval, the TA divided the country into four prioritized “relocation waves” shown on the map below:

Prioritization of relocation was established by considering a number of factors, including existing levels of unacceptable interference, reconfiguration timeline targets, presence of complex regional 800 MHz public safety networks and population distributions. Wave 1 is comprised of areas that are relocation priorities because of existing interference and spectrum congestion issues. Wave 2 is comprised of regions in Texas, the Midwest and Great Plains states, and parts of the Southeast. In each wave, the relocation of licensees at Channels 1-120 ((806-809 MHz/851-854 MHz) must be completed before the national public safety allocation (NPSPAC) licensees may be relocated (i.e., the licensees on Channels 1-120 are relocated, then the NPSPAC licensees are relocated to those channels).

For each wave, there are two negotiation “periods” within which the licensee and Sprint Nextel negotiate the reconfiguration. The first period (“voluntary” period) lasts for three months. If agreement cannot be reached during the voluntary negotiation period, a three-month mandatory negotiation period follows. During this time frame, the licensee and Sprint Nextel are to negotiate an agreement for relocation of the licenses. The dates for the voluntary and mandatory negotiation periods for Channels 1-120 for the four “waves,” the estimated dates for the start of voluntary negotiations with NPSPAC licensees and the dates when NPSPAC licensees may start to submit requests for planning funding, are as follows:

As of the date of this alert (October 20, 2005), Channels 1-120 licensees in Wave 1 are in the mandatory negotiation period, and licensees of Channels 1-120 in Wave 2 are starting the voluntary negotiation period. If your public safety system is on NPSPAC channels in Wave 1, you should be preparing to submit your request for planning funding (where necessary) by November 18, 2005.

If the parties are unable to agree on a reconfiguration agreement during the mandatory negotiation period, a TA mediator must step in. If mediation fails, the matter goes to the FCC for resolution. In addition to mediating the reconfiguration agreement, the parties may also mediate disputes over the implementation of their reconfiguration agreement or interference concerns. Costs of such mediation (the negotiation of the agreement and implementation of the agreement) are reimbursable by Sprint Nextel.

During reconfiguration negotiations, the public safety licensee and its authorized representatives are responsible for obtaining comparable facilities and ensuring that all reasonable reconfiguration costs are reimbursed by Sprint Nextel. To accomplish that, the public safety licensee must undergo a planning and negotiation phase, which includes the following:

• the TA is provided with contact information
• funding for reconfiguration planning is requested, if necessary
• all equipment and infrastructure that will need to be modified or replaced during reconfiguration is inventoried
• a notification structure is established for all agencies and other entities authorized to use the public safety network being relocated
• the proposed new channels that the TA will provide are evaluated to determine whether the facilities will be comparable to those currently used by the public safety licensee
• a detailed estimate of the costs entailed in reconfiguring the system or, where necessary, a statement of work, is prepared for submission to and approval by the TA
• a reconfiguration contract with Sprint Nextel is negotiated and executed

During the implementation stage, the public safety licensee must ensure that relocation is consistent in all respects with the reconfiguration contract.

Past experience with FCC band reconfiguration indicates that the most challenging aspect of this process will be reaching agreement on what constitutes “comparable facilities.” There are many potential ways for the TA, Sprint Nextel and the public safety entity to define “comparable” within the bounds of general FCC guidance on this issue, but it is highly unlikely that replacement spectrum offered will be identical in all key respects to spectrum currently being used.

Experience with reconfiguration to date indicates that the process is unfolding more slowly than anticipated. The time frames set by the TA are a bit more aggressive than established state and local government decision-making processes comfortably accommodate.

What Costs Are Covered by Sprint Nextel?

Under the FCC’s decision, Sprint Nextel is required to pay the licensee’s reasonable and necessary expenses for reconfiguration, including both the planning and implementation stages. Reimbursable expenses include equipment costs, legal fees, engineering fees and internal labor costs (such as time spent inventorying your system or performing reconfiguration work). Reimbursable costs also include attendance at conferences or seminars that are specific to the 800 MHz reconfiguration program. The FCC estimates that the transactional costs and expenses (i.e., legal and administrative fees) should generally not exceed 2 percent of the “hard costs” of relocation (i.e., equipment replacement).

Sprint Nextel is required to make timely payments to ensure that the reconfiguration proceeds on schedule. Direct payments to vendors which provide goods and services to licensees are preferable. Sprint Nextel also will reimburse licensees for the reasonable and necessary costs of their personnel performing reconfiguration activities.

The FCC’s decision indicates that public safety licensees could benefit from engaging technical consultants and legal counsel to assist in relocation planning and negotiation. As indicated, Sprint Nextel is required to cover all reasonable costs of reconfiguration that the public safety licensee will incur, including hard costs of equipment and infrastructure, as well as soft costs of engineering and legal services. Now is the time to consider whether your jurisdiction has public safety licenses that must be relocated and develop a plan for meeting that challenge.