Why an 800 MHz enforcement action won't work

Several readers have written over the past few weeks to ask why the Federal Communications Commission doesn't simply institute an enforcement action against Nextel Communications and any other commercial wireless carrier that is disrupting public safety communications in the 800 MHz band nationwide. Their rationale is simple: Generally speaking, no licensee can generate interference that is harmful to another licensee.

It seemed a reasonable question. So I called the FCC to find out. What I learned is that there are several reasons--some technical, some legal and some practical--that render an enforcement proceeding unfeasible.

To begin, Nextel currently is operating within the scope of its licenses, in terms of power and emission limits, "all of the technical stuff," according to the FCC source with whom I spoke. The problem isn't how Nextel is operating but that its spectrum is interleaved, and that's a function of a previous spectrum-management philosophy that lacked sufficient foresight, the source said.

According to the source, the spectrum currently held by Nextel originally was licensed to a company called Fleet Call, which used the airwaves to communicate with truckers. Later, Fleet Call--and its spectrum--was acquired by the company that eventually became Nextel, which saw such acquisitions as the way to build its network. At the time, it was common for the FCC to interleave spectrum allocated for industrial business use.

"It was just a different philosophy. You have to remember at that time we had much more restricted services and technologies--there wasn't even digital when this was done," the FCC source said. "Part of what the commission has been doing [more recently] is to make its allocations more flexible so we don't have issues like this. But back then it was very constrained as to what you could do with each band."

Unfortunately, no one at the FCC envisioned that a behemoth like Nextel would grow out of those licenses. "As the technology grew--even though people were operating in compliance with their authorization--the technology has outgrown the allocations," the FCC source said.

Another factor that makes an enforcement proceeding unfeasible is that it requires a formal complaint, something that no public safety entity has filed to date, according to the source. "We have incidents on file that people have told us about, but to my knowledge, no one has ever made a formal complaint."

I found that assertion somewhat startling, given public safety's agitation over the current situation, so I placed a call to the Association of Public-Safety Communications Officials International. Bob Gurss, APCO's director of legal and public affairs, said he too was unaware of any formal complaint having been filed by a public safety agency. Gurss speculated that the reason behind this seeming incongruity is that any enforcement action filed by a public-safety agency would address one incident in one location, an unwieldy piecemeal approach compared to the Consensus Plan, which would reband 800 MHz airwaves nationwide.

"[An enforcement action] would have the force of the FCC behind it, but it wouldn't be a comprehensive solution. All it would do is fix a particular problem at a particular site," Gurss said. "And the reality is that when you fix a problem in one place you sometimes create a new problem somewhere else, because you've shifted the frequencies around."

There's another advantage to the Consensus Plan compared to a spate of enforcement proceedings: Public safety stands to receive additional spectrum it sorely needs.

"Remember that part of the Consensus Plan calls for Nextel to give up spectrum and give it to public safety. That's something we couldn't do [in an enforcement proceeding]," the FCC source said. "That's a big part of a plan, because there are a lot of congested areas, especially in metropolitan areas, where additional spectrum will promote interoperability and provide greater service to public safety."

Not only that, but should the FCC execute an enforcement proceeding against Nextel, it almost surely would be forced to defend itself in court, a lengthy and expensive prospect.

"There is a mixed view on this, but to be quite honest, the FCC probably could order Nextel to reband. A lot of people here think we have that authority. But whether we do or not would be tested in court," the source said. "Everyone would prefer a [negotiated] approach that everyone is comfortable with. At the end of the day, that would make this much easier."

Glenn Bischoff is editor of Mobile Radio Technology and a contributing editor for Telephony.

Glenn Bischoff is the editor of Mobile Radio Technology and a contributing editor for Telephony. He can be reached at gbischoff@primediabusiness.com.