04-25806. The 800 MHz Public Safety Interference Proceeding; Extension of Deadlines

AGENCY:

Federal Communications Commission.

ACTION:

Final rule; extension of compliance deadlines.

SUMMARY:

The Federal Communications Commission extends certain deadlines set out in the Commission's initial 800 MHz Report and Order (Order) released on August 6, 2004. The summary of the order and the rules issued pursuant to the order are published in the Rules and Regulations section in this issue. The Commission extended the deadlines in order to afford interested parties to the proceeding additional time to comply with certain deadlines that are set forth in the full text version of the Order, released August 6, 2004.

DATES:

The deadlines, as described in SUPPLEMENTARY INFORMATION, are extended an additional forty-five (45) days. For example, actions that previously were required within thirty (30) or sixty (60) days of Federal Register publication of the Order are now required by February 7, 2005, or March 7, 2005, respectively. The Commission is not deferring the effective date of the rules in this proceeding published elsewhere in this issue.

ADDRESSES:

All filings must be addressed to the Commission's Secretary, Marlene H. Dortch, Office of the Secretary, Federal Communications Commission, 445 12th Street, SW., Suite TW-A325, Washington, DC 20554. One (1) courtesy copy must be delivered to Roberto Mussenden, Esq. at the Federal Communications Commission, Wireless Telecommunications Bureau, Public Safety and Critical Infrastructure Division, 445 12th Street, SW., Suite 5-C140, Washington, DC 20554, or via e-mail, [e-mail], and one (1) copy must be sent to Best Copy and Printing, Inc., Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20554, telephone [phone], or via e-mail, http://www.bcpiweb.com.

FOR FURTHER INFORMATION CONTACT:

John Evanoff, Esq. or Roberto Mussenden, Esq., Public Safety and Critical Infrastructure Division, Wireless Telecommunications Bureau at [phone].

SUPPLEMENTARY INFORMATION:

This is a summary of a Public Notice released by the Federal Communications Commission on October 22, 2004, extending certain deadlines set forth in the Order.

1. The extension of deadlines was prompted in order to avoid uncertainty for Nextel Communications, Inc. (Nextel) and certain other 800 MHz licensees, while the Commission seeks expedited comment on issues raised in certain ex parte presentations. The request for comments is designed to develop a full and complete record and to further the effective implementation of the 800 MHz band reconfiguration process. These issues are published in the Proposed Rules section of this issue. Therefore, the Commission believes it is appropriate to provide affected parties additional time in which to comply with certain deadlines set forth in the Order, released on August 6, 2004, a summary of which is published in the Rules and Regulations section of this issue. For this reason, with the exception of the statutory deadlines for filing petitions for reconsideration and for seeking judicial review of the Order, the Commission extends these deadlines by 45 days. For example, actions that previously were required within thirty (30) or sixty (60) days of Federal Register publication of the 800 MHz Report and Order are now required by February 7, 2005, or March 7, 2005, respectively. The Commission is not deferring the effective date of the rules in this proceeding published elsewhere in this issue. Specifically, the Commission extends the following deadlines an additional 45 days:

2. The Commission extends the deadlines contained in paragraph 342 of the Order. Paragraph 342 of the Order provides that:

“pursuant to Section 309 and 316 of the Communications Act of 1934, as amended, 47 U.S.C. §§ 309, and 316, the licenses of all 800 MHz band licensees (including, but not limited to, Nextel Communications, Inc.), are hereby modified as specified in this Report and Order; provided, however, that in the event Nextel rejects any of the conditions for modification required in this Report and Order, all the modifications of all the 800 MHz licenses specified in this Report and Order are suspended unless and until the Commission orders otherwise. Nextel will be deemed to have rejected such conditions (a) unless it files with the Commission a written acceptance of all such conditions within thirty days of the publication of this Report and Order in the Federal Register, or (b) if it files a judicial appeal of this Report and Order within thirty days of the publication of this Report and Order in the Federal Register. Pursuant to Section 316(a)(1) of the Communications Act of 1934, as amended, 47 U.S.C. § 316(a)(1), publication of this Report and Order in the Federal Register shall constitute notification in writing of our Order modifying Nextel's 800 MHz licenses and those of all other 800 MHz licenses, and of the grounds and reasons therefore, and Nextel and these other 800 MHz licensees shall have thirty days from the date of such publication to protest such Order.”

3. The Commission extends the deadlines contained and referenced in paragraph 344 of the Order (as amended by the Second Erratum in this docket released October 6, 2004). Paragraph 344, as amended, provides that:

“within sixty days of the publication of this Report and Order in the Federal Register, Nextel shall comply with the following conditions precedent to its operations on the 1.9 GHz band:

• Nextel shall certify that it has obtained an irrevocable letter of credit, in all material respects identical to that contained in Appendix E hereto, which provides assurances that $2.5 billion will be available for band reconfiguration, notwithstanding the financial condition of Nextel, or its successor(s).
• Nextel shall specify on the initial letter of credit and any subsequent letters of credit, a Trustee, acceptable to the Commission, which shall draw upon and disburse funds in accordance with the terms thereof and the Transition Administrator's instructions. Further, on the occasion of a material breach by Nextel of its obligations hereunder, as declared by the Commission, said trustee shall receive the remaining balance of the letter(s) of credit to hold in trust and disburse in accordance with the terms of this Report and Order. Said funds shall be devoted exclusively to reconfiguration of the 800 MHz band except as otherwise provided in this Report and Order.
• Nextel shall deliver an opinion letter from counsel clearly stating, subject only to customary assumptions, limitations and qualifications, that in a proceeding under Title 11 of the United States Code, 11 U.S.C. Section 101 et seq. (the “Bankruptcy Code”), in which Nextel is the debtor, the bankruptcy court would not treat the Letter of Credit or proceeds of the Letter of Credit as property of Nextel's bankruptcy estate under Section 541 of the Bankruptcy Code. The scope of the opinion letter must also cover such other opinions as the Commission shall request. The opinion letter must contain detailed legal analysis of the basis of counsel's opinion. A draft opinion letter must be submitted for review and approval by the Commission's Office of General Counsel prior to issuance of the letter. Bankruptcy counsel, and, if applicable, counsel's firm, must have a Martindale-Hubbell rating of “A/V” and must satisfy the Commission in all other respects.
• Nextel shall provide a letter or letters, in content satisfactory to the Commission, from any and all parties having a financial or equitable interest in any existing or proposed 800 MHz system, whether in the United States, Mexico or Canada, and connected in any way to Nextel by way of being a subsidiary, partner, or otherwise; to the effect that such parties are bound to perform the obligations imposed on Nextel herein to the extent such obligations are necessary or desirable in the completion of reconfiguration of the 800 MHz band.
• Nextel shall obtain the Commission's approval of all documents it submits pursuant to this paragraph.
• Nextel shall file with the Commission an acknowledgement that meets the requirements of paragraph 87 supra.”

4. The Commission extends the deadline contained in paragraph 345 of the Order (as numbered in the Second Erratum released October 6, 2004). Paragraph 345, as numbered, provides that that “within thirty days of the publication of this Report and Order in the Federal Register, Nextel and Southern LINC shall deliver to the Commission an agreement for the channel distribution for all 800 MHz licensees in the areas shown in Appendix G.”

5. The Commission extends the Broadcast Auxiliary Service (BAS) relocation deadlines set out in paragraph 346 of the Order (as numbered in the Second Erratum released October 6, 2004). Paragraph 346 provides that, Nextel's modified licenses authorizing operations within the 1.9 GHz band are conditioned on several requirements, including:

“Nextel shall certify to the Commission that all BAS facilities have been relocated within thirty months after the effective date of this Report and Order. If Nextel fails to meet this benchmark, for reasons that Nextel could reasonably have avoided, the Commission will determine whether forfeitures should be imposed and/or whether Nextel licenses, including, but not limited to, its 1.9 GHz licenses, should be revoked.”

6. The Commission extends the BAS relocation deadlines set forth in Paragraph 352 of the Order (as numbered in the Second Erratum released on October 6, 2004). Paragraph 352 provides that, “as a condition on Nextel's 1.9 GHz licenses, Nextel shall, as described herein, relocate all BAS licensees in the 1990-2025 MHz band within thirty months after the effective date of this Report and Order.” In this connection, Section 352 provides that Nextel shall comply with certain requirements, which include, but are not limited to:

• “Nextel shall file with the Commission and copy the MSS licensees within thirty days after the effective date of this Report and Order its plan for the relocation of BAS operations in the markets that will be relocated during stage one (i.e., relocations made within eighteen months after the effective date of this Report and Order).”
• “Nextel shall follow a negotiation period for stage one relocations that ends May 31, 2005 and that ends March 31, 2006 for stage two relocations (i.e., relocations made within thirty months after the effective date of this Report and Order).”
• “Nextel shall file progress reports within twelve months and twenty-four months after the effective date of this Report and Order on the status of the transition, including identifying the markets that will be relocated during stage one, and all remaining markets that will be relocated during stage two.”
• “Nextel shall certify to the Commission that all BAS facilities have been relocated within thirty months after the effective date of this Report and Order. If Nextel fails to meet this benchmark, for reasons that Nextel could reasonably have avoided, the Commission will determine whether forfeitures should be imposed and/or whether Nextel licenses, including, but not limited to, its 1.9 GHz licenses, should be revoked.”
• “Nextel shall be entitled to seek reimbursement from MSS licensees that have entered the band for the MSS licensee's pro rata share of Nextel's costs to clear the top thirty markets and relocate all fixed BAS facilities, regardless of market size, incurred during the thirty-six month reconfiguration process. Nextel shall be required to inform the Commission and MSS licensees on whether it will or will not seek reimbursement from MSS licensees within twelve months after the effective date of this Report and Order.”

7. This extension does not apply to the statutory deadlines for filing petitions for reconsideration and for seeking judicial review of the Order. Also, the Commission is not deferring the effective date of the rules set forth in Appendix C of the initial Order and published elsewhere in the Rules and Regulations section of this issue, including the effective dates of technical standards and procedural mechanisms adopted in the Order to abate unacceptable interference.

Federal Communications Commission.

Michael J. Wilhelm,

Chief, Public Safety and Critical Infrastructure Division, Wireless Telecommunications Bureau, Federal Communications Commission.