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Released: July 26, 2012

Federal Communications Commission

DA 12-1200

Before the

Federal Communications Commission

Washington, D.C. 20554

In the matter of
)
)

Mississippi State University
)
WT Docket No. 02-55
)
and
)
Mediation No. TAM-32234
)
Nextel Communications, Inc.
)

ORDER REOPENING THE RECORD

Adopted: July 26, 2012

Released: July 26, 2012

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

I.

INTRODUCTION

1.
Before us is a case referred to us for de novo review from Wave 3 Stage 2 mediation
by the 800 MHz Transition Administrator, LLC (TA).1 This case involves a dispute between
Mississippi State University (Licensee or MSU) and Nextel Communications, Inc. (Sprint)2
(collectively the Parties) concerning the appropriate method of rebanding MSU’s system.
2.
In this Order Reopening the Record, we address, inter alia, Sprint’s proposal to reduce
the deviation of the Licensee’s 3-Site Scan radios from 5 kHz to 4 kHz to enable the radios to comply
with the Commissions technical rules for the NPSPAC band (the “radio realignment solution”).3
Based on our de novo review of the mediation record, the Recommended Resolution submitted by the
TA-appointed mediator (TA Mediator or Mediator), and the Parties’ position statements,4 we direct the
TA Mediator to reopen the record to adduce additional evidence on the feasibility of the radio
realignment solution.

II.

BACKGROUND

3.
The 800 MHz Report and Order and subsequent orders in this docket require Sprint to
negotiate a FRA with each 800 MHz licensee that is subject to rebanding.5 The FRA must provide for
retuning of the licensee’s system to its replacement channel assignments at Sprint’s expense, including


1 Recommended Resolution, TAM-32234 (filed June 11, 2012) (RR).
2 For purposes of uniformity in de novo review decisions, we refer to Nextel Communications, Inc. herein as its
parent, Sprint Nextel Corp. (Sprint).
3 Proposed Resolution Memorandum of Nextel Communications, Inc., dated May 3, 2012, at 12, Appendix A-7
(Sprint PRM).
4 Statement of Position of Nextel Communications, Inc., dated June 25, 2012 (Sprint SOP); Statement of Position
of Mississippi State University, dated June 25, 2012 (MSU SOP).
5 Improving Public Safety Communications in the 800 MHz Band, Report and Order, Fifth Report and Order,
Fourth Memorandum Opinion and Order, and Order
, 19 FCC Rcd 14969, 15075-77 ¶ 201 (2004) (800 MHz
Report and Order
); Improving Public Safety Communications in the 800 MHz Band, Supplemental Order and
Order on Reconsideration
, 19 FCC Rcd 25120 (2004) (800 MHz Supplemental Order); Improving Public Safety
Communications in the 800 MHz Band, Memorandum Opinion and Order, 20 FCC Rcd 16015 (2005).

Federal Communications Commission

DA 12-1200

the expense of retuning or replacing the licensee’s radio units as required.6 Sprint must provide the
rebanding licensee with “comparable facilities”7 on the new channel(s), and must provide for a seamless
transition to enable licensee operations to continue without interruption during the retuning process.8
4.
In the instant case, the Parties dispute the method of rebanding MSU’s system that
will best meet the Commission’s comparable facilities standard. The dispute revolves around how
adequately to provide functionality equivalent to MSU’s existing 3-Site Scan system post-rebanding.
Three-Site-Scan “allows the user to create a subscriber based ‘multisite roaming’ system without
transmitter sites [. . .] being networked together.”9 Although Harris Corporation (Harris), the
manufacturer of MSU’s radios, has long stopped manufacturing 3-Site Scan legacy radios,10 MSU
insists that it retain 3-Site Scan functionality post-rebanding, or, at least, functionality that “closely
mimic[s]” 3-Site Scan.11 To maintain 3-Site Scan functionality, the Parties have advanced three
alternative rebanding methodologies.
5.
First, Sprint proposes that the Licensee move to the Interleaved band and retain its
current system (the “interleaved solution”).12 This proposal requires Sprint to replace MSU’s existing
NPSPAC capable radios with comparable models capable of operating on the new NPSPAC channels.
It also requires users of MSU’s 3-Site Scan radios to equip themselves with two radios, one for the 3-
Site Scan system, the other for communicating with NPSPAC interoperability partners.
6.
Second, MSU proposes deploying an Integrated Multisite Controller (IMC) switch to
mimic 3-Site Scan functionality (the “IMC solution”), but which Sprint claims represents an
impermissible upgrade.13
7.
Third, Sprint proposes to reduce the deviation on MSU’s 3-Site Scan enabled radios
from 5 kHz to 4 kHz allowing them to operate on both the “new” NPSPAC and Interleaved channels,
and provide replacement radios for MSU’s remaining subscriber inventory (the “radio realignment
solution”).14 MSU and Harris claim that the Commission’s rules would require a new equipment
certification including a demonstration of compliance with the Commission’s emission mask, frequency


6 800 MHz Report and Order, 19 FCC Rcd at 14977 ¶ 11.
7 “Comparable facilities are those that will provide the same level of service as the incumbent's existing facilities,
with transition to the new facilities as transparent as possible to the end user. Specifically, (1) equivalent channel
capacity; (2) equivalent signaling capability, baud rate and access time; (3) coextensive geographic coverage;
and (4) operating costs.” Id. at 15077 ¶ 201 (footnotes omitted).
8 Id. at 14986 ¶ 26.
9 Proposed Resolution Memorandum of Mississippi State University, dated May 10, 2012, at 2 (MSU PRM).
MSU estimates that fifty percent of its radio inventory is capable of 3-Site Scan and that roughly 200 radios are
enabled to use 3-Site Scan functionality at any one time. These radios include four different models: MDX and
MDR mobile radios and PCS and 300P portable radios. See MSU PRM at 5.
10 See MSU PRM at Exhibit 3, Letter from Steve Smith, Project Manager, Harris Corp., to Ralph Nobles, P.E.,
MSU (dated May 10, 2012) (Harris Letter) (“Harris no longer manufacturers or sells any of the EDACS 3-Site
Scan legacy radios used by [MSU].”).
11 MSU PRM at 17.
12 RR at 5.
13 RR at 5-6. Sprint claims that, an “IMC solution facilitates true roaming functionality as well as wide-area call
processing that does not exist today on MSU's system.” Sprint PRM at 34.
14 RR at 7.
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Federal Communications Commission

DA 12-1200

stability and other technical rules.15
8.
Sprint disagrees. To support its claim that radio realignment will not require
recertification of the Licensee’s radios, Sprint argues that the radio realignment proposal will not alter
“the design, circuitry or construction of the radios” and merely requires “a software adjustment [. . .]
within the scope of its already existing certification.”16 Supporting its assertion, Sprint cites to a 1988
Commission Memorandum Opinion and Order on Reconsideration that “specifically authorized the
grandfathering of existing end user radio equipment if the deviation were reduced to allow operation on
the NPSPAC band.”17 Sprint also relies on a more recent statement by the Public Safety and Homeland
Security Bureau (Bureau) approving a rebanding methodology that involved reducing the deviation on
four analog FM voice channels. There, the Bureau noted that “[t]he Commission’s rules do not directly
limit the deviation of 800 MHz land mobile transmitters, but do specify an ‘emission mask’ to which
the transmitter output waveform must conform.”18 At most, Sprint submits that adjusting the radio
deviation represents a permissive change under the Commission’s certification rules.19
9.
MSU, however, claims that retuning the radios to operate in the new NPSPAC
frequency band (806-809 MHz and 851-854 MHz) and adjusting the deviation “are outside the bounds
of the existing type acceptance / certification grants for these radios.”20 At a minimum, outside counsel
to Harris suggests that radio realignment represents a Class II permissive change, requiring testing to
“[demonstrate] compliance with the [Commission’s] emission mask requirements (Section 90.210 of its
rules) and with its frequency stability requirements (Section 90.213 of its rules) [. . .].”21 Harris’s
outside counsel cautions that the Licensee’s legacy radios may not demonstrate compliance with current
Commission requirements regarding, for example, RF exposure limits.22 Moreover, without providing
specific details, Harris estimates that either recertification or the testing required under the permissive
change rules requires “multiple months and costs in the six-figure range.”23
10.
The TA Mediator recommends that the Commission find that the radio realignment
solution provides the Licensee with comparable facilities.24 The TA Mediator deems reasonable
Sprint’s assertion that recertification is unnecessary because the realignment “would not result in ‘a
change in the design, circuitry or construction’ of the radios [. . .].”25 However, the TA Mediator left
final determination of the issue of recertification to the Commission, making the following


15 MSU PRM at 37; Harris Letter at 2.
16 Sprint PRM at 6-7.
17 Sprint SOP at 7, emphasis in original, citing Development and Implementation of a Public Safety National
Plan and Amendment of Part 90 to Establish Service Rules and Technical Standards for Use of the 821–
824/866–869 MHz Bands by the Public Safety Services, Memorandum Opinion and Order on Reconsideration,
GEN Docket No. 87–112, 3 FCC Rcd 5391, 5397 ¶ 57 (1988).
18 See County of Genesee, New York and Sprint Nextel Corp., WT Docket 02-55, Memorandum Opinion and
Order
, 26 FCC Rcd 12722, 12777 ¶ 15 (PSHSB 2011).
19 Sprint PRM at 45, n. 49.
20 MSU PRM at 37.
21 Id. at Exhibit 3 Letter from George Wheeler, Holland Knight to Mr. Steve Smith, Project Manager, Harris
Corp. (dated May 9, 2012) at 2.
22 Id.
23 Harris Letter at 1-2.
24 RR at 21.
25 Id. at 22.
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DA 12-1200

recommendation:
If the Commission concludes that recertification is not required, the TA Mediator
recommends that the Commission direct the Parties to implement the radio realignment
solution. However, absent a Commission determination regarding the need for
recertification, the TA Mediator recommends that [Sprint] be required to either (1) include
in the FRA a warranty that implementation of the radio realignment solution would not
require recertification; (2) fund the reasonable costs of recertification; or (3) fund the
reasonable costs of implementing the IMC solution.26
The TA Mediator states that “neither Party has submitted adequate support- such as technical
specifications and citations to relevant Commission decisions – to enable the TA Mediator to reach a
conclusion regarding this matter.”27
11.
On June 25, 2012, Sprint filed its Statement of Position (SOP) addressing the TA’s
recommendation. Sprint continues to insist that the changes it proposes can be implemented without
requiring recertification. Sprint notes that transmitter deviation is not a parameter that the Commission
specifically certifies and again cites the Commission order establishing the NPSPAC band in which
the Commission grandfathered equipment if the deviation were reduced.28 Nonetheless, Sprint
observes that the Commission is best suited to determine whether recertification is required or whether
a limited grandfathering or waiver is a preferable approach.29

12.
In its SOP, MSU insists that Harris “believes that recertification is necessary.”30 MSU
states that “it is unaware of any engineering record filed by Nextel which provides credible support for
[the TA’s assumption that Sprint’s proposal appears reasonable]”31 MSU asserts that “[i]n the absence
of any evidence to contradict the information entered in the record by Harris, the Commission has no
credible basis to authorize use of Class I permissive change procedures or to “waive” its equipment
modification and/or certification requirements or to permit the realignment to be accomplished without
a determination of the NPSPAC interference consequences.”32 MSU notes that “Harris previously
explained in the May 9, 2012 letter that the Commission should not waive its equipment certification
rules because of the significant adverse interference risks for future harmonized uses of NPSPAC
frequencies.”33 In the event operations of the modified radios cause interference to NPSPAC
frequencies, MSU argues, “there is the additional risk that the University’s radio operations would be
disrupted or even shut down to discontinue causing such interference.”34 All but a few of these
consequences, MSU argues “cannot be adequately addressed after the fact under the terms of a
proposed Nextel ‘warranty’ in the FRA.”35


26 Id.
27 Id.
28 Sprint SOP at 6-7.
29 Id.
30 MSU SOP at 3.
31 Id. at 4.
32 Id.
33 Id. at 5.
34 Id.
35 Id. Additionally, MSU argues that “proceeding without a Commission determination puts the University, as a
licensee, at risk of being found to be operating in violation of the Commission’s Rules and the validity of its
(continued....)
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Federal Communications Commission

DA 12-1200

III.

DECISION

13.
Sprint and MSU essentially ask the Bureau to find whether MSU’s legacy radios can
be adjusted through software-based “alignment procedures” to lower the deviation to meet the
Emission Mask requirements, consistent with the radios’ existing certification. MSU argues that, at a
minimum, a new test report showing compliance with all the current rules, including compliance with
RF Exposure limits, is required.
14. The record suggests that Sprint’s proposal may be reasonable and that the radios may be
rendered rule-compliant through software changes under our Permissive Change Policies. There is,
however, insufficient record evidence to reach a final determination on the reasonableness of Sprint’s
proposal under the comparable facilities standard.
15. As specified in Section 2.90736 of the Commission’s rules, certification attaches only to
units that are identical to the sample tested and approved, except for permissive changes authorized
pursuant to Section 2.1043 of the rules.37 Section 2.1043(b) describes the classes of permissive
changes that may be made in certificated equipment without requiring a new application for, and grant
of, certification.38 A Class I permissive change includes modifications to the equipment which do not
degrade the characteristics reported by the manufacturer and accepted by the Commission,39 whereas a
Class II permissive change includes those modifications which degrade the performance characteristics
as reported to the Commission at the time of initial certification.”40 A Class II permissive change
requires a filing to the Commission reporting complete information and the results of tests of the
characteristics affected by such change.41
16.
The Commission’s Permissive Change Policies describe the software modifications
that can be made to non-software defined radio (SDR) already-approved devices.42 Under those
policies, if the frequency band capability of a device is decreased, the change is permitted under a
Class I change procedure, provided there are no other changes to the device’s parameters.43 Additional
frequencies may be added to an approved device subject to certain conditions (e.g., no hardware
changes), however, under a Class II permissive change, a new test report must be submitted for the


(...continued from previous page)
licenses for these radios would be jeopardized.” Id. Further, MSU claims that “this would create regulatory
compliance risks for the entity performing the radio realignment, i.e. regulatory fines or other penalties for
failure to comply with Section 2.1043(a) or (b) of the Commission’s Rules (in the case of the original grantee),
or with Section 2.929(b) of the Commission's Rules (in the case of any entity other than the original grantee).”
Id. citing 47 C.F.R. §§ 2.1403(a-b) and 2.929(b).
36 47 C.F.R. § 2.907.
37 47 C.F.R. § 2.1403.
38 47 C.F.R. § 2.1043(b).
39 47 C.F.R. § 2.1043(b)(1).
40 47 C.F.R. § 2.1043(b)(2).
41 Id.
42 Federal Communications Commission, Office of Engineering and Technology, Laboratory Division,
Permissive Change Policies dated Jan. 5, 2012 at 5, available at
https://apps.fcc.gov/kdb/GetAttachment.html?id=1vrx5RroKWkZWugrWrFihg%3D%3D (last visited July 24,
2012).
43 Id.
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new frequencies.44
17.
Based on the record before us, we find that reducing the deviation of an otherwise
rule-compliant radio is a software adjustment that does not constitute a change in the physical circuitry
of the radio. Therefore, the radio does not require recertification.45 MSU’s 3-Site Scan radios are
certified to operate across the 800 MHz band (806-824 MHz/851-869 MHz). Sprint states that the
radios at issue separate the 800 MHz band into three sub-band segments (1) 806-813 MHz, (2) 813-
821 MHz, and (3) 821-824 MHz.46 Sprint proposes reduction of deviation only in the 806-813 MHz
segment, such that all frequencies in this segment are aligned to the same level, i.e. 4 kHz.47 This
segment includes the new NPSPAC band and a portion of the interleaved band.48
18.
We cannot determine, however, whether the radio realignment solution satisfies the
minimum requirements of the technical rules applicable to the NPSPAC band. Under the Permissive
Change rules, modified devices “must still meet the minimum requirements of the applicable rules”
and “the grantee shall supply the Commission with complete information and the results of tests of the
characteristics affected by such change.”49 Although Sprint suggests that the radio realignment
solution could be performed under the permissive change rules using the manufacturer’s published
procedures, we are not persuaded that just reducing the deviation to 4 kHz would render the radios
compliant with the current rules applicable to the NPSPAC band.50 That said, however, we are limited
to the record in deciding this matter and the record contains nothing that allows us to look behind
Sprint’s assertions. In particular, there is no record evidence that, if the deviation is reduced to 4 kHz
that the radios will comply with the emission mask limits in Section 90.21051 of the Commission’s
rules or the frequency stability requirements of Section 90.21352 of the rules. Both of these parameters


44 Id. These conditions include (1) no hardware changes have been made; (2) no increase in the output power
rating on new frequencies; (3) the equipment class remains the same; (4) RF exposure changes must be
addressed; (5) only the original equipment manufacturer may implement the new frequencies; and (6) there are
no other changes to the device that indicate a need for a new FCC ID. Id.
45 Section 2.1403(a) provides that “changes to the basic frequency determining and stabilizing circuitry
(including clock and data rates), frequency multiplication stages, basic modulator circuit or maximum power or
field strength ratings shall not be performed without application for and authorization for a new grant of
certification.”
46 Sprint PRM at note 41.
47 Id.
48 Id.
49 47 C.F.R. § 2.1403(b)(2).
50 “NPSPAC channels operate with a 12.5 KHz separation between channel centers, whereas the rest of the 800
MHz band operates with 25 KHz channel spacing. As a consequence, there is a greater potential for adjacent
channel interference between NPSPAC stations unless the stations’ emissions in the adjacent channel are
attenuated. The emission masks specified in Section 90.210 of the Commission’s rules contain the allowable
amount of signal in the adjacent channel and beyond. In order to meet the emission mask requirements, the
transmitter deviation must be reduced, typically from 5 KHz to 4 KHz.” County of Genesee, New York and
Sprint Nextel, Corp., WT Docket No. 02-55, Order on Reconsideration, 27 FCC Rcd 4158, 4160 n. 15 (PSHSB
2012).
51 47 C.F.R. § 90.210.
52 47 C.F.R. § 90.213.
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affect the potential of the radios to cause adjacent channel interference. 53
19.
We also acknowledge Harris’s statement that, because the original certification of
MSU’s legacy radios’ predates the Commission’s current rules governing RF exposure, the adjusted
radios may not comply with current RF Exposure standards.54 Accordingly, in order to reach an
informed decision about the feasibility of the radio realignment solution and its satisfaction of the
comparable facilities standard, we require supplementation of the record with objective evidence that
the realigned 3-Site Scan radios will comply with all technical rules applicable to the NPSPAC band,
and with current RF Exposure standards.55
20. We are therefore remanding this matter to the TA Mediator for the limited purpose of
determining whether the radio realignment solution would satisfy the technical requirements
applicable to the NPSPAC band and the Commission’s RF Exposure standards. The TA Mediator
shall reopen the record to collect information on the radio realignment solution in the following
fashion: 1) MSU shall select four radios in good working condition corresponding to the four 3-Site
Scan radio models and submit those radios to Sprint within five business days of the release date of
this Order Reopening the Record; 2) Sprint, at its expense, shall submit the sample radios to a
Commission-approved laboratory of its choice within five business days of the receipt of the radios
from MSU, to assess the effects of reduced deviation; 3) the deviation of each radio shall be reduced to
4 kHz in the band segment 806-813 MHz and then tested to determine compliance with the rules
applicable to the NPSPAC band and the Commission’s RF Exposure standards; 4) the laboratory shall
then submit the test results to the TA Mediator for entry into the record; and 5) within ten business
days of receipt of the test report from the laboratory, the TA Mediator shall file a supplementary
Recommended Resolution, attaching the laboratory report.
21.
Sprint, at its option, may elect not to implement the testing protocol described above.
If it so elects, it shall notify the TA Mediator within 5 business days of the release date of this Order
Reopening the Record,
whereupon the record shall be closed and the radio realignment option will be
determined not to provide MSU with comparable facilities. The Bureau then will issue an order on de
novo
review consistent with that determination.

IV.

CONCLUSION

22.
Considering the stage of these proceedings and the record currently before the Bureau,
we find that Sprint’s realignment proposal likely could be implemented under the Commission’s
Permissive Change Policies, but that the deficient record precludes us from making factual findings
with respect to MSU’s interference concerns. Accordingly, an informed decision on this matter
dictates that we reopen the record for the limited purpose of assessing MSU’s realigned equipment for
compliance with the Commission’s technical rules for the NPSPAC band and its RF Exposure
standards.

V.

ORDERING CLAUSES

23.
Accordingly, pursuant to the authority of Sections 0.131 and 0.331 of the
Commission’s rules, 47 C.F.R. §§ 0.131, 0.331; Section 4(i) of the Communications Act of 1934, as
amended, 47 U.S.C. § 154(i), and Section 90.677, of the Commission’s Rules, 47 C.F.R. § 90.677, IT


53 We recognize Harris’s concern that MSU’s 3-Site Scan radios may not demonstrate post-rebanding
compliance with the applicable rules, including the frequency stability requirements and the stringent NPSPAC
emissions mask requirements. See Harris Letter at 2.
54 Id.
55 47 C.F.R. § 2.1093.
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IS ORDERED that the issues submitted by the Transition Administrator are resolved as discussed
supra.
24.
IT IS FURTHER ORDERED, that this matter IS REMANDED to the Transition
Administrator Mediator to reopen the record consistent with the directions outlined in paragraph 20
supra.
25.
IT IS FURTHER ORDERED, that, within five business days of the TA Mediator’s
filing a supplementary Recommended Resolution, the parties may file supplementary Statements of
Position with the Bureau. No further pleadings shall be filed unless specifically authorized.
26.
This action is taken under delegated authority pursuant to Sections 0.191(f) and 0.392
of the Commission’s rules, 47 C.F.R. §§ 0.191(f) and 0.392.
FEDERAL COMMUNICATIONS COMMISSION
Michael J. Wilhelm
Deputy Chief
Policy and Licensing Division
Public Safety and Homeland Security Bureau
8

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