FCC Says SMR System Eligible for Rebanding, Disallows Some Claimed Costs
Tuesday, May 28, 2019 | Comments

The FCC addressed an 800 MHz rebanding case referred to it for de novo review from mediation by the 800 MHz Transition Administrator (TA) involving disputes between Tom D. Phillips and Nextel of Texas, a subsidiary of Sprint. The disputes concern certain rebanding costs incurred by Phillips, his consultants and legal counsel, and Sprint’s contention that Phillips does not have an operating 800 MHz system eligible for rebanding.

The commission found that Phillips established that he has an operating 800 MHz system eligible for rebanding at Sprint’s expense, but that Sprint is not responsible for substantial portions of Phillips’ claimed costs.

Phillips is licensed to operate a five-site 800 MHz SMR system. In 2013, Phillips and Sprint entered negotiations that culminated in a frequency reconfiguration agreement (FRA) with an effective date of April 18, 2014. On November 13, 2017, Phillips submitted a change notice request to Sprint stating that the replacement frequencies assigned for his use could not be implemented without reducing the coverage from some of the system’s sites and thus would not provide “comparable facilities,” to those existing prior to rebanding.

Sprint rejected Phillips’ change notice request, contending that Phillips could attain comparable facilities if he replaced a combiner in his system. Sprint also claimed that Phillips’ system was not operational, and therefore, not eligible for rebanding at Sprint’s expense. In mediation, Phillips and Sprint failed to agree on the use of a substitute combiner, the operating status of Phillips’ system, and on various supporting costs and fees claimed by Phillips.

The commission said Phillips demonstrated he had an operating system and would receive comparable facilities using the combiner offered by Sprint. In addition, had Phillips accepted Sprint’s offer to supply a more efficient combiner, it would have obviated excess expenses and enabled his system to be retuned successfully years ago.

“We find, therefore, that Phillips is not entitled to have Sprint reimburse him for the greater part of the costs claimed …” the order said.

Specifically, Phillips claims that Sprint is responsible for paying the $11,000 fee of engineer Mehram Nazari retained by Phillips to project pre-rebanding and post-rebanding coverage. Because two of the three analyses conducted by Nazari were based on correct assumptions and yielded useful information, the FCC credited Phillips with two-thirds of the work performed by Nazari or $7,333.

Phillips asserted that the original contractor, APW Electronics, which provided the cost quotation used in the FRA, later refused to reband Phillip’s system and provided him with a statement to that effect. Phillips contends that he is thus justified in obtaining a new contractor — All Points Communications — at the higher cost of $12,917. The FCC approved the use of All Points Communications as a rebanding contractor for a fee of $17,493.

The commission also allowed Phillips’ reimbursement for on-site project management to $6,256 but did not allow an extra $4,500 request by Phillips. The FCC disallowed $11,250 in consulting services by William Morgan. The commission did allow for five hours of Morgan’s future services overseeing the FRA closing process.

Phillips claims $10,000 for Blue Wing to perform the licensing work necessary for Phillips’ rebanding. Phillips and Sprint agreed to have the licensing work performed by the Enterprise Wireless Alliance (EWA) at a cost of $3,450. The FCC disallowed $69,234 in claimed legal fees because of inadequate legal counsel billing detail. Phillips also claimed $5,940 in legal fees for nine hours of counsel’s future services for reconciliation and closing, which the FCC allowed on condition that detailed billing records are provided.

“Although we have found that Phillips unreasonably rejected the combiner offered by Sprint and then incurred significant expenses in support of an unmeritorious claim, the record is insufficient to show that this conduct rose to the level of lack of good faith, and we therefore decline such a finding,” the order said.

Overall, the FCC allowed $42,029 in rebanding expenses, versus the $141,804 requested by Phillips and the $17,289 that Sprint offered to pay. The full order is here.

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