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Improving Public Safety Communications in the 800 MHz Band

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Released: June 27, 2011

Federal Communications Commission

DA 11-1112

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of
)
)
Improving Public Safety Communications in the
)
WT Docket No. 02-55
800 MHz Band
)

ORDER

Adopted: June 27, 2011

Released: June 27, 2011

By the Deputy Chief, Public Safety and Homeland Security Bureau:

I.

INTRODUCTION AND BACKGROUND

1. In this Order, we dismiss a petition for partial reconsideration (Petition) filed by Lukas, Nace,
Gutierrez & Sachs, LLP and Shulman, Rogers, Gandal, Pordy & Ecker, P.A. (collectively, Petitioners) on
April 22, 2010.1 Petitioners seek reconsideration of an Order released by the Public Safety and
Homeland Security Bureau (Bureau) on March 31, 2010. 2 Specifically, Petitioners seek reconsideration
of the Bureau’s decisions governing (a) costs associated with the preparation of reports regarding the
status of licensees’ 800 MHz rebanding progress and (b) licensees’ eligibility to apply for vacated 800
MHz spectrum.
2. In the August 2004, 800 MHz Report and Order, the Commission ordered Sprint Nextel
Corp. (Sprint) and certain 800 MHz licensees, to reconfigure their systems to new frequencies within
thirty-six months3 A substantial number of licensees failed to meet that rebanding deadline and were
granted multiple extension waivers by the Bureau. The March 2010 Waiver Order granted these licensees
a further extension of time in which to complete rebanding. In the Waiver Order – as an incentive for
licensees to timely complete rebanding – the Bureau stated that: (a) until a licensee executes a Frequency
Reconfiguration Agreement (FRA)4 with Sprint, it is not eligible to apply for channels vacated by Sprint
as part of rebanding (Sprint-vacated channels), and (b) that Sprint is presumptively not responsible for
payment of costs incurred by a licensee in filing rebanding progress reports5


1 Petition for Partial Reconsideration filed, April 22, 2010 by Lukas, Nace, Gutierrez & Sachs, LLP and Shulman,
Rogers, Gandal, Pordy & Ecker, P.A. (Petition).
2 Improving Public Safety Communications in the 800 MHz Band Supplemental Requests for Waiver of June 26,
2008 Rebanding Deadline, WT Docket No. 02-55, Order, 25 FCC Rcd 3246 (PSHSB 2010) (Waiver Order).
3 Improving Public Safety Communications in the 800 MHz Band, WT Docket No. 02-55, Report and Order, Fifth
Report and Order, Fourth Memorandum Opinion and Order, and Order
, 19 FCC Rcd 14969, 14975 (2004).
4 The Frequency Reconfiguration Agreement is a contract between the licensee and Sprint for the reconfiguration of
the licensee’s system at Sprint’s expense.
5 The Waiver Order required licensees to file progress reports with the TA every 30 days, or until the TA directed
otherwise. Waiver Order, 25 FCC Rcd at 3747-3248.

Federal Communications Commission

DA 11-1112

3. Petitioners argue (a) that restricting licensees from applying for Sprint-vacated channels
penalizes licensees for matters outside their control, and will not advance rebanding,6 and (b) that the
presumption that progress report costs are non-reimbursable is not supported by Commission rule or
policy.7

II.

DISCUSSION

4. We dismiss the Petition for lack of standing. When evaluating standing, the Commission
applies “the same test that courts employ in determining whether a person has standing under Article III
to appeal a court order: the person must show (a) a personal injury ‘in fact’; (b) that the injury is fairly
traceable to the challenged action; and (c) that it is likely, not merely speculative, that the requested relief
will redress the injury.”8 Moreover, Courts have consistently held that “the mere precedential effect of an
adjudicatory order within an agency is not enough to confer standing.”9
5. As an initial matter we note that Petitioners are not licensees in their own right, do not claim
to be representing specific Commission licensees, and are filing on their own behalf. They are, therefore,
not parties to the proceeding. Pursuant to Section 1.106 of the Commission’s rules, if a petition for
reconsideration is filed by a person who is not a party to a proceeding, “it shall state with particularity the
manner in which the person’s interest is adversely affected by the action taken.”10 Here, however,
Petitioners allege no specific injury in fact to their law firms.11 Rather, they attempt to show that the
interests of third parties – unnamed licensees – could be adversely affected by the actions taken in the
Waiver Order. Moreover, even as to the third parties, Petitioners fail to meet the “injury in fact” test, i.e.,
they posit injuries to third party licensees that may wish to apply for Sprint-vacated spectrum, or who
may seek compensation from Sprint if they are required to file progress reports. These “injuries” are too
conditional, remote and speculative to establish that the third party licensees would undergo a direct
“injury in fact.”12
6. We are therefore dismissing the Petition for Petitioners’ lack of standing. In so doing, we
adhere to procedural rules that conserve Commission resources by limiting reconsideration petitions to
parties, and matters, that properly are before the Commission.


6 Petition at 7. The Petition does not note that the waiver provisions of 47 C.F.R. § 1.925 are available to licensees
that desire to acquire replacement spectrum but have been delayed in rebanding by factors beyond their control.
7 Id. at 2. Petitioners fail to note that the condition respecting Sprint’s payment of status report costs is only
presumptive. Licensees can overcome the presumption by demonstrating that rebanding delays have occurred due
to factors beyond their control.
8 AT&T Corp. v. Business Telecom, Inc., Order on Reconsideration, 16 FCC Rcd 21750, 21751-52 ¶ 5 (2001).
9 Id. citing, inter alia, Airtouch Paging v. FCC, 234 F.3d 815, 818 (2d Cir. 2000); Sea-Land Service, Inc. v.
Department of Transportation
, 137 F.3d 640, 648 (D.C. Cir. 1998); Shell Oil Co. v. FERC, 47 F.3d 1186, 1202
(D.C. Cir. 1995); Crowley Caribbean Transport, Inc. v. Pena, 37 F.3d 671, 674 (D.C. Cir. 1994);
Telecommunications Research and Action Center v. FCC, 917 F.2d 585, 588 (D.C. Cir. 1990).
10 47 C.F.R. § 1.106(b)(1) (emphasis supplied).
11 Had Petitioners alleged harm to their financial interests in representing rebanding clients, we would have found
that injury not cognizable inasmuch as it related to Petitioners’ private interests, not the public interest.
12 See Martin-Trigona v. FCC, 432 F.2d 682 (D.C. Cir.1970) (claims amounting to a remote or speculative injury
are insufficient to confer standing).
2

Federal Communications Commission

DA 11-1112

III.

ORDERING CLAUSE

7. Accordingly, pursuant to the authority of Section 4(i) of the Communications Act of 1934, as
amended, 47 U.S.C. § 154(i); and Sections 1.2 and 1.106 of the Commission’s rules, 47 C.F.R. §§ 1.2,
1.106, the Petition for Partial Reconsideration filed by Lukas, Nace, Gutierrez & Sachs, LLP and
Shulman, Rogers, Gandal, Pordy & Ecker, P.A. is DISMISSED.
8. This action is taken under delegated authority pursuant to Sections 0.191 and 0.392 of the
Commission’s rules, 47 C.F.R. §§ 0.191, 0.392.
FEDERAL COMMUNICATIONS COMMISSION
David L. Furth
Deputy Chief
Public Safety and Homeland Security Bureau
3

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