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Released: August 2, 2013

Federal Communications Commission

DA 13-1703

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.
)

MEMORANDUM OPINION AND ORDER

Adopted: August 2, 2013

Released: August 2, 2013

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

TABLE OF CONTENTS

Heading
Paragraph #
I.
INTRODUCTION .................................................................................................................................. 1
II. EXECUTIVE SUMMARY .................................................................................................................... 2
III. BACKGROUND .................................................................................................................................... 8
IV. DISCUSSION......................................................................................................................................... 9
A. The Comparable Facilities Dispute.................................................................................................. 9
1. MSU Position .......................................................................................................................... 13
2. Sprint Position ......................................................................................................................... 14
3. TA Mediator Recommendation............................................................................................... 15
4. Statements of Position ............................................................................................................. 17
5. First Remand ........................................................................................................................... 19
6. Second Remand ....................................................................................................................... 32
7. Supplemental Statements of Position ...................................................................................... 33
a. Sprint Position................................................................................................................... 34
b. MSU Position.................................................................................................................... 35
8. Findings ................................................................................................................................... 36
a. The Radio Reconfiguration Solution ................................................................................ 36
(i) Compliance With the Commission's Environmental Rules ....................................... 36
(ii) Comparable Emission Mask Performance ................................................................. 40
(iii) The Need to Measure Face SAR ................................................................................ 45
(iv) Expression of SAR Values - Peak vs. Average. ......................................................... 46
(v) Radio Certification ..................................................................................................... 47
(vi) Conclusion: The Radio Realignment Solution Provides MSU With
Comparable Facilities................................................................................................. 49
b. The Interleaved Solution................................................................................................... 50
c. The IMC Switch Solution ................................................................................................. 51
B. Minimum Necessary Costs ............................................................................................................ 52

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DA 13-1703

1. Radio Realignment Incremental Costs. ................................................................................... 56
a. Mitigation of Reduced Signal to Noise Ratio at Fill-In Sites. .......................................... 56
(i) Maben Site.................................................................................................................. 59
(ii) Sturgis Site. ................................................................................................................ 63
(iii) Services and Equipment Common to Maben and Sturgis .......................................... 68
2. Mobile and Portable Radios .................................................................................................... 70
a. 3-Site Scan Radios ............................................................................................................ 70
b. Replacement Radios Associated With the Interleaved Solution....................................... 72
3. Coverage Testing..................................................................................................................... 73
a. Drive Testing Harris Oversight...................................................................................... 73
b. Drive Testing .................................................................................................................... 73
4. Travel and Per Diem Costs Harris........................................................................................ 75
5. Harris System Engineering and Tusa Consulting Costs.......................................................... 77
a. Harris System Engineering ............................................................................................... 77
b. Tusa Consulting Services.................................................................................................. 78
(i) On-site Tusa Project Manager .................................................................................... 78
(ii) Principal Oversight Engineer ..................................................................................... 81
(iii) Other Project Management Services .......................................................................... 82
c. Negotiation Costs Incurred Between October 18, 2011 and March 9, 2012 .................... 86
d. Negotiation Costs Charged by Harris After March 9, 2012.............................................. 89
C. Sprint's Allegations of Bad Faith................................................................................................... 91
D. MSU's Allegations of Bad Faith.................................................................................................... 95
V. SUMMARY ......................................................................................................................................... 96
VI. ORDERING CLAUSES..................................................................................................................... 100

I.

INTRODUCTION

1.
This is a case referred for de novo review, after remand1, from Wave 3 Stage 2 mediation
by the 800 MHz Transition Administrator, LLC (TA). 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. For the reasons set out below, we
approve the Radio Realignment rebanding solution advanced by Sprint and disapprove certain of MSU's
claimed costs as excessive.

II.

EXECUTIVE SUMMARY

2.
The 800 MHz Report and Order and subsequent orders in this docket require Sprint to
negotiate a contract (known as a Frequency Reconfiguration Agreement or FRA) with each 800 MHz
licensee that is subject to rebanding.3 The FRA must provide for retuning of the licensee's system to its


1 Mississippi State Univ. and Nextel Communications, Inc., Order Reopening the Record, 27 FCC Rcd 8351
(PSHSB 2012)(First Remand Order); Mississippi State Univ. and Nextel Communications, Inc., Second Order
Reopening the Record,
28 FCC Rcd 61 (PSHSB 2013)(Second Remand Order).
2 For purposes of uniformity in 800 MHz rebanding orders, we refer herein to Nextel Communications, Inc. as its
parent company, Sprint Nextel Corp. (Sprint).
3 See 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 (2004)(800 MHz Report and
Order
); Improving Public Safety Communications in the 800 MHz Band, Supplemental Order and Order on
(continued....)
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replacement channel assignments at Sprint's expense, including the expense of retuning or replacing the
licensee's radio units as required.4 Sprint must provide the rebanding licensee with "comparable
facilities"5 on the new channel(s), and must provide for a seamless transition to enable licensee operations
to continue without interruption during the retuning process.6
3.
Although this case presents a complex fact pattern and procedural history, it ultimately
turns on two basic tenets of rebanding: the Minimum Cost Standard and the abovementioned Comparable
Facilities Standard. The Minimum Cost Standard assigns MSU the burden of proving that the rebanding
solution it has proposed is reasonable, prudent, and the "minimum necessary to provide facilities
comparable to those presently in use."7 The Minimum Cost Standard takes into account not only cost, but
all of the objectives of the proceeding, including completing the rebanding process in a timely and
efficient manner and a seamless transition that preserves public safety licensees' ability to operate during
the transition.8 The Comparable Facilities Standard dictates that, after the licensee's system is rebanded,
the licensee has facilities comparable but not necessarily identical to its pre-rebanding facilities.9
4.
Here, the Parties dispute which of three methods10 of rebanding MSU's system will best
meet the Commission's Comparable Facilities Standard, i.e., provide functionality equivalent to MSU's
existing 3-Site Scan11 system post-rebanding. Although Harris Corporation (Harris), the manufacturer of


(...continued from previous page)
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).
4 800 MHz Report and Order, 19 FCC Rcd at 14977.
5 Id. at 15077. ("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." (Footnotes omitted)). The comparable facilities definition for the
800 MHz band was adopted in 1997 when the Commission provided for relocation of site-based licensees in the
"Upper 200" channels by Economic Area (EA) licensees. Amendment of Part 90 of the Commission's Rules to
Facilitate Future Development of SMR Systems in the 800 MHz Frequency Band, Second Report and Order, PR
Docket 93-144, 12 FCC Rcd 19079, 19111-19115 (1997). See 47 CFR 90.699(d). The Commission expressly
adopted the same definition of comparable facilities for purposes of 800 MHz rebanding. 800 MHz Report and
Order,
19 FCC Rcd at 15077 n.526.
6 800 MHz Report and Order, 19 FCC Rcd at 14986.
7 Id. at 15074; 800 MHz Supplemental Order, 19 FCC Rcd at 25152 (2004).
8 Improving Public Safety Communications in the 800 MHz Band, Memorandum Opinion and Order, 22 FCC Rcd
9818, 9820 (2007)(Rebanding Cost Clarification Order). The Commission clarified that the term "minimum
necessary cost" does not mean the absolute lowest cost under any circumstances, but the "minimum cost necessary
to accomplish rebanding in a reasonable, prudent, and timely manner." Id.
9 Illinois Public Safety Agency Network and Nextel Communications, Inc., Memorandum Opinion and Order, 26
FCC Rcd 4061, 4069 (PSHSB 2011)("[W]when establishing a standard for licensees' entitlement to post-rebanding
facilities the Commission advisedly used the term `comparable,' not `identical,' thus allowing for, e.g., de minimis
differences between pre- and post- rebanding facilities [. . .].")
10 MSU had proposed a fourth method replacement of its system with ANSI 102 "Project 25" technology but
withdrew the proposal, supposedly "in a show of good faith." Mississippi State University Proposed Resolution
Memorandum (MSU PRM) at 17.
11
Three-Site-Scan, "allows the user to create a subscriber based `multisite roaming' system without transmitter
sites [. . .] being networked together." Id. at 2. MSU estimates that fifty percent of its radio inventory is capable of
(continued....)
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DA 13-1703

MSU's radios, has long stopped manufacturing 3-Site Scan legacy radios,12 MSU claims that it must
retain 3-Site Scan functionality post-rebanding, or, at least, functionality that "closely mimic[s]" 3-Site
Scan.
5.
Evaluating the three rebanding methodologies proposed by the Parties under the
Minimum Cost Standard, we first reject, as unreasonable and imprudent, Sprint's solution that would
require MSU staff to carry two radios. To determine which of the remaining two proposed solutions
provides MSU with comparable facilities at the minimum cost, we then compare MSU's proposal to
deploy a custom switch to mimic a legacy functionality with Sprint's proposal to maintain that legacy
functionality, post-rebanding, by using MSU's existing radios with reduced maximum frequency
deviation.13 Because reducing radio frequency deviation is less expensive than deploying a custom
switch, we then determine whether Sprint's proposal provides MSU with comparable facilities within the
meaning of that term in the Commission's lexicon. The Commission generally limits its examination of
comparability to four factors (1) equivalent channel capacity; (2) equivalent signaling capability, baud
rate and access time; (3) coextensive geographic coverage; and (4) operating costs.14
6.
MSU raises several arguments in support of its claim that reducing the frequency
deviation of its radios will render them non-comparable. However, as we explain in detail below, in
examining these claims we find that the shortcomings MSU complains of do not invoke any of the four
factors of comparability, supra. Moreover, the complained of shortcomings already exist in the radios
and are not exacerbated when the frequency deviation is reduced and the operating frequency changed.
Thus, we conclude that reducing frequency deviation will provide MSU with comparable facilities,
making Sprint's "Radio Realignment" proposal the solution that best meets the Minimum Cost Standard.
7.
We then address individual cost disputes between the parties in light of both the
Minimum Cost Standard and the realities of what implementing the Sprint proposal will entail. Our
analysis demonstrates that MSU has overstated its costs in several respects and we therefore disapprove
several such overstated costs.

III.

BACKGROUND

8.
The TA Mediator issued a Recommended Resolution15 in this case on June 11, 2012 and
the Parties submitted Statements of Position on June 25, 2012.16 On July 26, 2012, the Public Safety and
Homeland Security Bureau (Bureau), after de novo review of the mediation record, issued its First
Remand Order
, finding that the then-existing record was insufficient for the Bureau to decide the


(...continued from previous page)
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.
12 See id. 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 manufactures or sells any of the EDACS 3-Site Scan legacy radios
used by [MSU].")
13 Frequency deviation is "the extent to which an FM carrier moves from its center frequency during modulation."
Newton's Telecom Dictionary, p.351, 20th Ed. CMP Books, San Francisco, Calif.
14 See supra n.5.
15 TA Recommended Resolution, Mediation No. TAM-32234, filed June 11, 2012 (RR).
16 Statement of Position of Nextel Communications, Inc., June 25, 2012 (Sprint SOP); Statement of Position of
Mississippi State University, June 25, 2012 (MSU SOP).
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feasibility of the Radio Realignment Solution advanced by Sprint.17 More specifically, the record as it
existed at the time did not contain information sufficient for the Bureau to determine whether Sprint's
proposal to reduce the frequency deviation of the Licensee's 3-Site Scan radios from 5 kHz to 4 kHz
would provide MSU with comparable facilities.18 To effect that determination, the Bureau remanded this
case to the TA Mediator with directions to have Sprint submit a representative sample of each MSU radio
for testing by a Commission-certified laboratory.19 The Bureau's review of the laboratory results and the
pleadings of the parties20 led the Bureau to conclude that the results were still insufficient to determine
that reducing the maximum frequency deviation of MSU's radios would provide MSU with comparable
facilities relative to the Commission's emission mask21 and environmental rules.22 Accordingly, in the
Second Remand Order, the Bureau again remanded the case to the TA Mediator with instructions to have
the laboratory test MSU's radios for compliance with emission masks G and H in both the old and new
NPSPAC bands,23 and to determine whether the radios met Commission standards24 for face Specific
Absorption Rate (SAR)25 in both the old and new NPSPAC band.

IV.

DISCUSSION

A.

The Comparable Facilities Dispute

9.
Below we discuss in greater detail the three rebanding solutions proffered by the Parties:
10.
Interleaved Solution. Sprint proposes that the Licensee move to the Interleaved Band
and retain its current system.26 This proposal requires Sprint to replace MSU's existing radios capable of
operating on the former NPSPAC channels (821-824 MHz and 866-869 MHz) with comparable models
capable of operating on the new NPSPAC channels (806-809 MHz and 851-854 MHz). It also requires
users of MSU's 3-Site Scan radios to keep those radios and carry an additional radio for communicating


17 See Sprint Proposed Resolution Memorandum (Sprint PRM) at 38-44. See also First Remand Order, 27 FCC Rcd
at 8351.
18 See First Remand Order, 27 FCC Rcd at 8355.
19 PC TEST Engineering Laboratory, Inc., of Columbia, Maryland performed the testing.
20 Comments of Mississippi State University, Nov. 21, 2012 (MSU Comments); Comments of Nextel
Communications, Inc., Nov. 21, 2012 (Sprint Comments); Reply of Nextel Communications, Inc. to the Comments
of Mississippi State University, Dec. 11, 2012 (Sprint Reply Comments); Motion for Leave to File of Mississippi
State University, Dec. 13, 2012; Sur-reply of Mississippi State University, Dec. 24, 2012 (MSU Surreply).
21 See 47 C.F.R. 90.210. The emission mask is the technical specification that limits the distribution of power of a
radio transmitter as a function of frequency. Development of Operational, Technical and Spectrum Requirements
for Meeting Federal, State and Local Public Safety Agency Communication Requirements Through the Year 2010,
First Report and Order and Third Notice of Proposed Rulemaking, 14 FCC Rcd 152, 213 n.337 (1998). The
emission mask is an important technical parameter that affects the efficient use of a frequency band by limiting
emissions from one channel into adjacent channels. See 1998 Biennial Regulatory Review - 47 C.F.R. Part 90 -
Private Land Mobile Radio Services, Report and Order and Further Notice of Proposed Rule Making, 15 FCC Rcd
16673, 16689 (2000).
22 47 C.F.R. 2.1091 et seq.
23 Second Remand Order, 28 FCC Rcd at 61.
24 47 C.F.R. 1.1310.
25 The original laboratory results assumed that body SAR represented the worst case SAR and the laboratory
therefore did not include face SAR. See Second Remand Order, 28 FCC Rcd at 61.
26 RR at 5.
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with NPSPAC interoperability partners. MSU objects to this proposal, inter alia, because it believes it is
unreasonable to expect officers to carry two radios, either on their equipment belts or in their vehicles.27
11.
Radio Realignment Solution. In the alternative, Sprint proposes to reduce the maximum
frequency deviation on MSU's 3-Site Scan enabled radios from 5 kHz to 4 kHz, thus allowing them to be
retuned to the new NPSPAC band and also to operate on the interleaved channels.28 MSU opposes the
Sprint proposal, alleging that, in order to effectuate this solution, its radios would have to undergo a new
equipment certification and a demonstration of compliance with the Commission's emission mask,
frequency stability, and other technical rules.29
12.
Integrated Multisite Controller Solution. MSU proposes an Integrated Multisite
Controller (IMC) switch to mimic 3-Site Scan functionality.30 Sprint claims this solution represents an
impermissible upgrade to MSU's system because it would provide MSU with networking capability its
system currently lacks.31
1.

MSU Position

13.
MSU claims that retuning its radios to operate in the new NPSPAC band and reducing
the frequency deviation "are outside the bounds of the existing type acceptance/certification grants for
these radios."32 MSU's vendor, Harris, suggests that radio realignment represents a Class II permissive
change,33 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) [. . .]."34 Harris's outside counsel cautions that the Licensee's legacy radios might not conform
to current Commission requirements regarding, e.g., radio frequency (RF) exposure limits.35 Moreover,
without providing specific details, Harris estimates that either recertification or the testing required under
the permissive change rules would require "multiple months and costs in the six-figure range."36
2.

Sprint Position

14.
Sprint disputes MSU's claim that the Radio Realignment Solution would require
recertification of the Licensee's radios. It argues that reducing the maximum frequency deviation of
MSU's radios would not alter "the design, circuitry or construction of the radios" and merely requires "a
software adjustment [. . .] within the scope of [their] already existing certification."37 In support of this


27 MSU PRM at 31-32.
28 RR at 7.
29 MSU PRM at 37; Harris Letter at 2.
30 MSU claims that "the TA Mediator never permitted the parties to negotiate MSU's IMC proposal," and alleges
that this supposed lack of permission "represents a serious flaw in the mediation process in this case." MSU PRM at
17.
31 RR at 5-6. (Sprint claims that, with the IMC switch, MSU would gain certain network functions it currently
lacks, thus representing an impermissible upgrade to the system.)
32 MSU PRM at 37.
33 Id. at 15 n.7.
34 Id. at Exhibit 3.
35 See id.; MSU SOP at 4.
36 MSU SOP at 3.
37 Sprint PRM at 6-7.
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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."38 Sprint also relies on a more recent statement by the
Bureau approving a rebanding methodology that involved reducing the maximum frequency 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."39 At most, Sprint submits, adjusting the radio frequency
deviation represents a permissive change under the Commission's certification rules.40

3.

TA Mediator Recommendation

15.
The TA Mediator recommends, with a qualification, that the Bureau find that Sprint's
Radio Realignment Solution provides the Licensee with comparable facilities.41 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 [. . .]."42 However, the TA Mediator
defers to the Bureau for a final determination of the recertification issue as follows:
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.43
16.
The TA Mediator also states that the extant record is inadequate to make a concrete
recommendation to the Commission, i.e., that "neither Party has submitted adequate support such as


38 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 821824/866869
MHz Bands by the Public Safety Services, Memorandum Opinion and Order on Reconsideration, 3 FCC Rcd 5391,
5397 (1988). There, the Commission "grandfathered" existing radios, stating that a reduction in maximum
frequency deviation "is a reasonable approach as it will allow the equipment to be used in the new band without
significant effect on frequency use by others [...]." Id.
39 See Genesee County, New York and Sprint Nextel Corp., Memorandum Opinion and Order, 26 FCC Rcd 12772,
12777 (PSHSB 2012). The Commission's rules once contained a maximum deviation limit for FM systems,
however the Commission's adoption of emission masks rendered "the need for a frequency deviation limit
superfluous for FM equipment and irrelevant for non-FM equipment." Replacement of Part 90 by Part 88 to Revise
the Private Land Mobile Radio Services and Modify the Policies Governing Them and Examination of Exclusivity
and Frequency Assignment Policies of the Private Land Mobile Radio Services, Report and Order and Further
Notice of Proposed Rule Making
, 10 FCC Rcd 10076, 10124 (1995).
40 Sprint PRM at 45, n.49.
41 See RR at 21.
42 Id. at 22.
43 Id.
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technical specifications and citations to relevant Commission decisions to enable the TA Mediator to
reach a conclusion regarding this matter."44
4.

Statements of Position

17.
On June 25, 2012, Sprint filed a Statement of Position (SOP), addressing the TA
Mediator's qualified recommendation. Sprint reiterated that MSU can implement the Radio Realignment
Solution without recertifying its radios. It notes that transmitter frequency deviation is not a parameter
that the Commission specifically certifies and, as noted supra, cites the 1988 Commission order
establishing the NPSPAC band in which the Commission grandfathered equipment if the frequency
deviation were reduced.45 Nonetheless, Sprint observes that the Commission is best suited to determine
whether recertification is required or whether a limited grandfathering or waiver is preferable.46

18.
In its SOP, MSU observes that Harris the manufacturer of MSU's radios "believes that
recertification is necessary." MSU states that "it is unaware of any engineering record filed by [Sprint]
which provides credible support for [the TA's assumption that Sprint's proposal appears reasonable]."47
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."48 MSU notes that
"Harris previously explained in [a] 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."49 Should operation 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."50 MSU claims the vast majority of
potential interference consequences "cannot be adequately addressed after the fact under the terms of a
proposed Nextel `warranty' in the FRA."51
5.

First Remand

19.
Following its consideration of the Parties' SOPs and its analysis of the record transmitted
by the TA Mediator, the Bureau found that "Sprint's [Radio Realignment] proposal may be reasonable
and that the radios may be rendered rule-compliant through software changes, which our Permissive


44 Id.
45 Sprint SOP at 6-7. See also supra n.38.
46 Sprint SOP at 7.
47 MSU SOP at 4.
48 Id.
49 Id. at 5.
50 Id.
51 Id. MSU also 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 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).
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Change Policies treat as Class II Permissive Changes."52 It concluded, however, that a final determination
of the reasonableness of Sprint's Radio Realignment Solution would have to await evidence that MSU
could operate its existing 3-Site Scan radios in the new NPSPAC band with performance comparable to
that in the old NPSPAC band, with respect to emission mask conformity, frequency stability, and non-
ionizing radiation limits.
20.
Accordingly, the Bureau reopened the record and remanded this case to the TA Mediator
with instructions to have representative samples of the Licensee's radios submitted for testing by a
Commission-certified laboratory.53 MSU furnished Sprint with sample radios and, after first aligning the
radios to the manufacturer's published performance specifications, Sprint submitted the radios to PC
TEST Engineering Laboratory for testing of (a) frequency stability, (b) emission mask B conformity and
(c) non-ionizing radiation.
21.
The laboratory concluded that the sample radios met all three tests in both the old
NPSPAC band and the new NPSPAC band. The TA Mediator then afforded the Parties the opportunity
to comment on the laboratory's results. In comments filed November 21, 2012, MSU characterized the
laboratory's results as "faulty and incomplete."54 MSU claimed that the measurement report for two of
the radios contained the same value for conducted power, whereas the radios, because of differences in
their output power, would be expected to have different values. MSU attributed the error to the results for
one radio being inadvertently copied into the report for another radio.55
22.
MSU further claimed that the emission mask testing for the radios was incomplete
because the laboratory only tested for the radios' compliance with emission mask B the mask applicable
to radios that employ an audio low pass filter. MSU pointed out that, when its radios operate on their
control channel in the trunking mode, they transmit a high speed digital signal and that the circuitry used
to generate the digital data does not include an audio low pass filter. Accordingly, MSU argues, the
laboratory should have tested the radios for compliance with emission masks G and H, the emission
masks applicable, respectively, to the interleaved band and the NPSPAC band, for radios transmitting
without an audio low pass filter.56
23.
MSU also claimed that the laboratory's power density calculations for the Model MDX
radios were incomplete because "the higher gain antenna was not considered in the Power Density
calculations for the MDX radio."57 MSU claims this oversight affected the Maximum Permissible
Exposure (MPE) limits for that radio.58
24.
In conducting the exposure measurements, the laboratory conducted only "body testing"
of Specific Absorption Rates (SAR) because it assumed, based on a report from another laboratory, that


52 First Remand Order, 27 FCC Rcd at 8355.
53 Id. at 8357.
54 Comments of Mississippi State University, Nov. 21, 2012 at 2. (MSU Comments).
55 Id.
56 Id. at 3, citing 47 C.F.R. 90.210.
57 MSU Comments at 5. (MSU had furnished two antennas with the radio, one with higher gain than the other. The
initial laboratory calculations for the MDX radio assumed use of the antenna with the lower gain.)
58 Id.
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the SAR for the face would be significantly lower than the SAR for the body.59 MSU submitted that the
laboratory should have conducted face testing of SAR as well.60
25.
Sprint also filed comments on November 21, 2012.61 It claimed that the test results
confirmed that MSU would receive comparable facilities if the maximum frequency deviation of its
radios were reduced and the radios were retuned to operate in the new NPSPAC band.62 It argued that the
laboratory's statement of compliance63 should be dispositive of whether MSU would receive comparable
facilities.
26.
In light of MSU's claims that the laboratory results were faulty and incomplete, the TA
Mediator required Sprint to file a reply to MSU's comments.64 In reply comments filed December 11,
2012,65 Sprint conceded that the test results for one of the radios had inadvertently been copied into the
test results form for another radio, and provided a corrected page. Sprint also argued that it was
unreasonable to require MSU's radios to comply with emission mask G or H because the laboratory saw
no such need for testing and because "only mask B testing was required for the original equipment
authorization for the 300P model, and because all the units were intended for voice operation."66 Sprint
also argued that, because a radio's emission mask conformance is a function of the radio's frequency
deviation, not its center frequency, there was no indication that additional testing would reveal any
differences in emissions when the radios were retuned to the new NPSPAC band.67
27.
In response to MSU's claim that the power density of one of the radios was understated
because it was not calculated based on the gain of a higher gain antenna, Sprint provided results of
calculations, using the higher gain antenna, showing that the radio did not exceed the MPE limit (for
occupational/controlled exposure) at a distance of 25.4 cm (10 inches).68 Sprint also questioned the need
for MPE calculations in the first instance, arguing that power density calculations do not consider the
frequency deviation of a radio, i.e., that there is no frequency deviation term in the equation Pd= (Pout *


59 Id. at 6.
60 Id.
61 Comments of Nextel Communications, Inc., Nov. 21, 2012 (Sprint Comments).
62 Id. at 5.
63 Sprint points out that the laboratory report for each radio states "[t]his equipment has been shown to be capable of
compliance with the applicable technical standards as indicated in the measurement report and was tested in
compliance with the measurement procedures specified in 2.1091 and 90[sic]."
64 Order to Submit Reply Comments, Nov. 27, 2012.
65 Reply of Nextel Communications, Inc. to the Comments of Mississippi State University, Dec. 11, 2012. (Sprint
Reply).
66 Id. at 4-5. The other 3 radios in the samples provided by MSU were manufactured before the Emission Mask
rules were adopted in 1995. Id. at 5, citing Replacement of Part 90 by Part 88 to Revise the Private Land Mobile
Radio Services and Modify the Policies Governing Them, Report and Order and Further Notice of Proposed
Rulemaking,
10 FCC Rcd 10076 (1995).
67 Sprint Reply at 5.
68 Id. at 6.
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G)/(4r2).69 Therefore, Sprint argued, reduction of the frequency deviation of MSU's radios would have
no effect on RF exposure.70
28.
Addressing MSU's claim that the laboratory should have tested MSU's portable radios
for face SAR in addition to body SAR, Sprint pointed out that one of MSU's radios, the model 300P, had
previously undergone testing and "those results showed that body-SAR results were considerably higher
than face-SAR."71 Thus, Sprint reasoned, "the laboratory had no reason to test face-SAR as it was not the
worst case exposure situation."72 Sprint also argued that there was no need for face SAR testing of the
other MSU radio the model PCS because the laboratory, in its engineering judgment, decided that the
model 300P and model PCS radios were sufficiently similar that it could safely assume that the body SAR
measurements would represent the worst case.73 In response to MSU's question as to whether the lab
performed the exposure testing with the speaker-microphones attached to the radios, Sprint provided an
updated test report from the laboratory confirming that they were.
29.
Following Sprint's submission of reply comments, MSU moved, on December 13, 2012,
for permission to submit a surreply, arguing that Sprint's reply comments differed from information
obtained from MSU's radios' manufacturer, Harris. The TA Mediator granted the motion, directing MSU
to submit its surreply by December 24, 2012.74
30.
In a timely-filed surreply, MSU restated its argument that the laboratory should have
tested the radios for compliance with emission masks G and H.75 It faulted the laboratory and Sprint for
not reporting, for the model MDX mobile radio, "the Power Density at the standard 20 cm separation
requirement prescribed by FCC Rule 2.1091" and claimed that such a calculation "would show that the
MPE limit would be exceeded for the frequencies in use."76 MSU submitted that "the Commission must
review the lack of calculated power density at the 20 cm benchmark for compliance with the
Commission's Order and the Commission's current rules."77
31.
With respect to the laboratory's decision not to test the model PCS radio for face SAR
because the model 300P showed that body SAR was the worst case, MSU deemed it "inappropriate for
PCTEST [the laboratory] to conclude that any test documentation for the [model] 300P radio should also
apply to [model] PCS." It claimed that the two radios are not built on the same "technical platform," and,
therefore, that the model PCS radio should be "evaluated in its own right" for both face and body SAR.78


69 Id. at 7. In the Friis Calculation of power density, P is output power to the antenna (in milliwatts), G is antenna
gain, is a constant and r is the distance from the antenna's radiation center (in cm). See H.T.Friis, Proc. IRE, vol.
34, p.254. 1946.
70 Sprint Reply at 7.
71 Id. at 9.
72 Id. at 10.
73 Id.
74 Email from Jonathan J. Nadler, Esq., TA Mediator, to Alan Tilles, Esq. and Lauren Janosko, Dec. 14, 2012.
75 Sur-Reply of Mississippi State University at 3-4.
76 Id. at 4.
77 Id. at 5.
78 Id. at 6.
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6.

Second Remand

32.
On conclusion of the pleading cycle authorized by the TA Mediator, the Bureau directed
the TA Mediator to forward the record without proposed resolution memoranda or a recommended
resolution of the case. On inspection of the record, the Bureau determined that it did not address MSU's
contentions that the laboratory failed to make a finding of comparability with reference to emission masks
G and H, or test the model PCS radio for both face and body SAR. Accordingly, the Bureau issued a
Second Order Reopening the Record on January 13, 2013, remanding the case "to the TA mediator for the
limited purpose of adducing evidence on the radios' conformity to emission masks G and H, when
operated in the digital mode without an audio low-pass filter; and the radios' conformity to the SAR
limits in Sections 2.1091 and 2.1093 of the Commission's rules."79 The Bureau's order provided that the
Parties could submit supplementary statements of position once additional testing was completed and the
TA Mediator transmitted the record to the Bureau.80
7.

Supplemental Statements of Position

33.
On March 7, 2013, the TA Mediator forwarded the record, consisting of the laboratory's
supplementary findings, and notified the Parties that he had done so.81 On March 12, 2013, MSU and
Sprint timely filed their supplementary statements of position.
a.

Sprint Position

34.
Sprint's position is essentially that MSU will receive comparable facilities if its radios
exhibit the same performance characteristics in the new NPSPAC band as they did in the old NPSPAC
band.82 Sprint contends that, if the performance of MSU's radios is deficient in both the old and new
NPSPAC bands, then MSU, not Sprint, is responsible for rendering the radios rule-compliant.83 Sprint
also cited two cases one originating in the Bureau, the other in the Wireless Telecommunications
Bureau in which the bureaus waived compliance with emission mask H because the waiver proponent
required high-speed data transfer with an emission waveform that exceeded the Mask H limits.84
b.

MSU Position

35.
MSU claims the IMC Solution is the only solution that fully complies with the
Commission's rules because, under the Radio Realignment Solution, two models of its radios do not meet


79 Second Remand Order, 28 FCC Rcd at 61.
80 Id. at 63. The supplementary statements of position were due five days following transmittal of the record and
were limited to 5 pages exclusive of appendices. Id.
81 On review of the second supplemental report from the laboratory, Bureau staff noted that the emission mask
exhibits for the Model 300P radio lacked a depiction of the unmodulated carrier and that the body SAR evaluations
were referenced to the 8W/kg spatial peak SAR instead of the spatial average SAR standard of 0.4 W/kg. Staff
directed the TA Mediator to have the laboratory supply a corrected emission mask exhibit and to explain why it
referenced its measurements to the spatial peak SAR. The laboratory complied on Mar. 22, 2013. See Measurement
Report OY1210181524-R2.OWD.
82 Statement of Position of Nextel Communications, Inc., Mar. 12, 2013 (Sprint Supplemental SOP) at 1. ("The
additional testing establishes that MSU's 3-Site Scan radios will be comparable pre- and post-realignment as to face
SAR and G and H mask emissions.")
83 Id. at 2-3, citing City of Parma, Ohio and Sprint Nextel Corp., Memorandum Opinion and Order, 25 FCC Rcd
13485, 13490-13491 (PSHSB 2010)(Parma).
84 Sprint Supplemental SOP, citing City of Emeryville, California, Order on Reconsideration, 22 FCC Rcd 1778,
1780 (PSHSB 2007); County of York, South Carolina, Order, 21 FCC Rcd 9526, 9527 (WTB 2006).
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the Commission's emission mask H requirements in the old NPSPAC band when modulated with a 9600
baud digital control channel signal and would continue not to meet those requirements when retuned to
the new NPSPAC band.85 MSU also faults the laboratory for evaluating spatial peak SAR (at 8 W/kg),
instead of spatial average SAR (at 0.4 W/kg) because MSU believes that spatial average is the
"measurement methodology implied by the ANSI/IEEE limits."86 MSU also notes that the laboratory
only subjected one of each model of radio to testing and that the Commission should be concerned about
"samples of one."87
8.

Findings

a.

The Radio Reconfiguration Solution

(i)

Compliance With the Commission's Environmental Rules

36.
As an initial matter, we address a matter not referred to the TA Mediator in the Second
Order Reopening the Record, i.e., MSU's faulting the laboratory for failure to calculate "Power Density
at the standard 20 cm separation requirement prescribed by FCC Rule 2.1091"88 for MSU's model MDX
mobile radios operating with high gain antennas. We conclude that the laboratory was not required to
provide the power density at 20 cm but agree that, had it done so, the value so obtained would exceed
Commission standards for operation of radios unless the licensee provided warning labels and
information to users "concerning minimum separation distances [. . .]."89
37.
Instead of calculating the power density at 20 cm, the laboratory calculated a more
meaningful figure the distance that a person would have to maintain from the antenna to restrict
exposure to at or below the regulatory limit. The resultant value was 25.4 cm (10 inches).90 MSU,
however, claims that the laboratory's calculation "deprived [the Commission] of the actual value of MPE
at its 20 cm (8 inches) benchmark which, if calculated, would show that the MPE limit would be
exceeded for the frequencies in use."91 MSU's claim is disingenuous. Calculating the power density at
20 cm does not require laboratory testing. Rather, simply inputting the operating parameters of the MDX
radio into the Friis equation described supra, returns a power density value of 4.38 mW/cm2 at a distance


85 Supplemental Statement of Position of Mississippi State University (MSU Supplemental Statement) at 2. MSU
notes that the Models 300P and MDR radios do not meet the emission mask H requirements in the new NPSPAC
band and that the Model MDX radio does not meet the emission mask H requirements in the old NPSPAC band, but,
when retuned to the new NPSPAC band, does meet emission mask H requirements. Id. MSU also claims that the
model 300P radio's emissions, as shown in the laboratory results, are "overstated," but even if properly depicted
would still show non-compliance with Emission Mask H. Id. at 3. MSU also claims that Emission Mask H was
improperly depicted for the model MDX radio, and, if properly depicted, would "likely" show that the radio's
emissions fall outside the H Mask. Id. Given our decision, infra, MSU's criticism of the laboratory results is not
material.
86 MSU Supplemental Statement at 4.
87 Id.
88 MSU Surreply at 5.
89 47 C.F.R. 2.1091(d)(3). "If appropriate, compliance with exposure guidelines for devices in this section can be
accomplished by the use of warning labels and by providing users with information concerning minimum separation
distances from transmitting structures and proper installation of antennas."
90 Sprint Reply Comments, Appendix A at 47.
91 Id.
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of 20 cm (8 inches).92 The fact that the power density at 20 cm exceeds the value in Section 1.1310 of the
Commission's rules does not mean that a retuned MDX radio with a high gain antenna would not provide
MSU with comparable facilities, because as MSU concedes "any continued use of the MDX radio and
higher gain antenna can be characterized to its users pursuant to FCC Rule 2.1091(d)(3), where
compliance with exposure guidelines can be accomplished by use of warning labels and providing users
with information concerning minimum separation distances and proper installation of the mobile antennas
as appropriate."93
38.
In fact, all that MSU has proven is that use of the model MDX radio with a high gain
antenna requires a warning label and informing its users not to get closer than 10 inches to the antenna.
MSU has been subject to this restriction ever since it began using high gain antennas with its model MDX
mobile radios. Therefore, the laboratory made no mistake when it reported the minimum separation
distance required for compliance with the Commission's exposure rules. Moreover, we agree with Sprint
that the power density of MSU's radios is irrelevant to a determination of whether the radios comply with
the Commission's environmental rules inasmuch as Maximum Permitted Exposure (MPE) is a function of
the power of the radio and its frequency of operation not its frequency deviation.94 Therefore, retuning
MSU's radios to the NPSPAC band and reducing their maximum frequency deviation has no effect on the
power density of the radio at any given distance. Finally, we note Sprint's observation that MSU
proposed to employ replacement radios with higher power (35 watts) than its existing radios and these
radios would have a higher power density at 20 cm than MSU's existing radios.95
39.
In sum, MSU knew, or should have known, that the modifications to be made to the
MDX radios retuning them to the NPSPAC band and reducing their frequency deviation would have
no effect on the radios' compliance with the Commission's rules governing MPE. Its implication to the
contrary, in an attempt to undercut the Radio Realignment Solution, is unavailing.96
(ii)

Comparable Emission Mask Performance

40.
The laboratory results following the second remand, transmitted March 7, 2013 by the
TA Chief Mediator, show that two models of MSU's radios do not comply with emission mask H in
either the old or new NPSPAC bands.97 We note that the laboratory tested the Model 300P radio, with a


92 The maximum power density prescribed by 47 C.F.R. 1.1310 is equal to F/300 where F is the frequency in
megahertz. For the approximate middle of the NPSPAC band, 808.75 MHz, the maximum power density at 20 cm
is 808.75/300=2.7 mW/cm. The power output of the model MDX radio is 21993 mW. The Source Based Time
Average (SBTA) for 50% duty cycle is -3 dB (factor of 1/2). The gain of the antenna is 3 dB (factor of 2), hence the
SBTA and antenna gain cancel. Therefore, the maximum power density, Pd, at 20 cm is given by Pd=21993/(4*202)
= 4.38 mW/cm2.
93 MSU Surreply at 5 (emphasis supplied).
94 See supra n.107. See also Sprint Reply Comments at 6-7 ("Not one of these Friss [sic] formula variables is
affected by or related to the deviation of the radio. Therefore, the adjustment of the radio deviation for
reconfiguration purposes has no effect on RF exposure and thus cannot be relevant in the context of the discussion.")
95 Sprint Reply Comments at 8.
96 800 MHz Report and Order, 19 FCC Rcd at 15076-15077. (Parties are obligated to demonstrate utmost good faith
in dealing with each other and the Commission.)
97 See Measurement Report, Test Report Serial No. 0Y1210181522-R1.AXA, at 23-25; Measurement Report, Test
Report Serial No. 0Y1210181524-R2.OWD, at 23, 25. Each model radio was tested using 9600 baud data
modulation on three frequencies: 808.7500 MHz in the "new" NPSPAC Band (806-809 MHz), 815.9625 MHz in the
Expansion Band (815-816 MHz), and 822.2250 MHz in the "old" NPSPAC Band (821-824 MHz). The 807.7500
MHz frequency corresponds to a rebanded channel at the Sessums site; the 822.2250 MHz frequency corresponds to
(continued....)
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different procedure than it used with MSU's other radios.98 In all four models of MSU's radios, the
emission mask performance in the old and new NPSPAC bands showed no significant difference,
although two of the radios (Models 300P and MDR) exceeded the emission mask in both band segments
and one radio (Model MDX) exceeded the emission mask in the old NPSPAC band but fell within the
emission mask in the new NPSPAC band.
41.
MSU argues that it cannot retune its Models 300P and MDR radios to the new NPSPAC
band because if it did so "MSU would be operating in non-compliance with the Commission's Rules."99
It adds that "post realignment, MSU's radios will not be in compliance with the Commission's Rules,
rules designed to prevent licensees from interfering with each other . . . the Commission clearly cannot
compel MSU to violate the Commission's Rules and perhaps put personnel at risk."100 In the alternative,
MSU claims that, if its radios are rebanded, that Sprint is obligated to pay for "preparation and re-
alignment" of each radio, in the same manner as the sample radios were prepared and realigned for
laboratory testing.101
42.
MSU's statement that "post realignment, MSU's radios will not be in compliance with
the Commission's Rules . . ."102 is misleading. "Realignment" does not render MSU's radios non-
compliant with the Commission's rules. The laboratory measurements show that, from a rule compliance
standpoint, there is no significant difference in MSU's radios pre- and post-rebanding. The radios'
interference potential will be no greater in the new NPSPAC band than in the old. Personnel will be at no
greater or lesser risk when the radios are retuned to the new NPSPAC band. In short, the retuned radios
will be "comparable" within the meaning of that term in the Commission's definition of comparable
facilities.103 In finding that MSU's radios are comparable, we are not "compel[ling] MSU to violate the
Commission's Rules,"104 we are merely holding that Sprint is not responsible for paying the cost of


(...continued from previous page)
an original channel at the Sessums site; the 815.9625 MHz frequency corresponds to a "[m]id sub-band" channel.
See, MSU Radio Data Testing Procedure, Feb. 5, 2013 at 1. (The radios were also tested with 2500 Hz sine wave
modulation and conformed to the applicable emission mask.)
98 The Model 300P, unlike the other radios, cannot generate an internal pseudo random data signal. Accordingly,
the radio was tested with a base station simulator. The control channel signal was captured using a real-time
spectrum analyzer. Measurement Report, Test Report Serial No. 0Y1210181524-R1.OWD at 22.
99 MSU Supplemental SOP at 2.
100 Id. at 5.
101 Id. at 4.
102 Id. at 5.
103 800 MHz Report and Order, 19 FCC Rcd at 15077. ("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." (Footnotes omitted.)) The comparable facilities
definition for the 800 MHz band was adopted in 1997 when the Commission provided for relocation of site-based
licensees in the "Upper 200" channels by Economic Area (EA) licensees. Amendment of Part 90 of the
Commission's Rules to Facilitate Future Development of SMR Systems in the 800 MHz Frequency Band, Second
Report and Order
, 12 FCC Rcd 19079, 19111-19115 (1997). See 47 CFR 90.699(d). The Commission expressly
adopted the same definition of comparable facilities for purposes of 800 MHz rebanding. 800 MHz Report and
Order
, 19 FCC Rcd at 15077 n.526.
104 MSU Supplemental SOP at 5.
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rendering MSU's radios rule-compliant when there is no evidence that it is the retuning of the radios that
renders them out of compliance with the Commission's rules.
43.
We also reject MSU's claim that, if its radios are retuned, Sprint must pay for
"preparation and realignment" of each radio.105 When Sprint discovered that the radios selected for testing
were not in alignment it corrected the misalignment to ensure a valid test against the manufacturer's
published specifications. If the remainder of MSU's radios are similarly misaligned, the responsibility for
realignment of the radios lies, as a maintenance matter, with MSU, not Sprint whose only obligation is to
pay for retuning the radios to the NPSPAC band and reducing their maximum frequency deviation to 4
kHz. Sprint is not responsible for correcting pre-existing deficiencies in rebanding licensees' equipment.
44.
Finally, we note Sprint's observation that while MSU's radios do not conform to
emission mask H on the control channel, the radios only use the control channel for "sporadic
transmissions of approximately 30 milliseconds."106 Accordingly, we cannot foresee an instance in which
interference if it were to occur would affect the intelligibility of the communications of another party.
Our opinion in that regard is bolstered by the fact that MSU has operated these radios for decades in the
old NPSPAC band apparently without causing interference to other users of the band. Therefore, we
would regard any such "interference" as de minimis. For that reason, and on our own motion, we waive
Section 90.210(h) of the Commission's rules and will not require MSU to comply with emission mask H
when models 300P and MDR operate on the control channel.
(iii)

The Need to Measure Face SAR

45.
MSU faulted the original laboratory report for assuming that body Specific Absorption
Rate (SAR) would be greater than face SAR, and, therefore, reporting only body SAR.107 MSU also
claimed that the laboratory unreasonably extrapolated the SAR levels of the Model 300P radio to the
model PCS radio.108 The supplementary laboratory reports contain SAR measurements of both the head
and face for both models of radio. The supplementary laboratory reports confirm the laboratory's original
conclusion that, while the body SAR levels are dominant, both the face and body SAR levels fall well
below the human exposure limits for a controlled environment.109 Accordingly we reject MSU's claim
that the laboratory erred in its initial findings concerning SAR.
(iv)

Expression of SAR Values - Peak vs. Average.

46.
MSU also faulted the laboratory for reporting the body peak SAR whereas the
ANSI/IEEE standard implies in MSU's view that the SAR limit should be expressed in terms of
"Spatial Average SAR (Whole Body)."110 It states that "MSU desires an explanation" of why the


105 Id. at 4.
106 Sprint [Supplementary] Statement of Position at 5.
107 MSU Surreply at 6.
108 Id.
109 The face human exposure limit for a controlled occupational environment is 8 Watts per kilogram; the whole
body limit is 0.4 Watts per kilogram. The highest measured face value for the Model PCS radio is 1.93 W/kg; the
highest measured face value for the Model 300P radio is 3.38 W/kg. The highest measured whole body value for
the Model PCS radio is 3.56 W/kg; the highest measured whole body value for the Model 300P radio is 2.52 W/kg.
Both radios are, therefore, well within the SAR human exposure limits for both the face and body. See SAR
Engineering Evaluation Report, Document Serial Nos. 0Y1210181523-R3.AXA and 0Y1210181525-R3.OWD.
110 MSU Supplemental SOP at 4, citing ANSI/IEEE C95.1-1992 and Canadian Health Code 6.
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laboratory used the peak instead of average values in its report.111 The laboratory provided the following
explanation:
The highest (peak) spatial average SAR was measured for the device and
not the Whole Body Average SAR. According to 47 C.F.R.
2.1093(d)(1), the limits to be used for the RF exposure evaluation of
portable devices (used within 20 cm of the body of the user for
occupational/controlled exposure) is 0.4 W/kg "as averaged over the
whole body not exceeding 8 W/kg as average over 1 gram of tissue."
This is because the RF exposure due to the near-field effect from devices
used near the user's body may cause high localized SAR peaks and
therefore must be evaluated. SAR limits are based on peak spatial-
average limits based on dosimetry considerations as described in IEEE
C95.1:1992. SAR was measured for the subject device comparisons over
the highest 1 gram of tissue, as recommended by the FCC.112
Most significant here is that the laboratory found no meaningful difference in body SAR values as
between the old and new NPSPAC bands. For example, the measurement data for the Harris EDACS-
300P show that the SAR was very slightly but insignificantly higher when the radio transmitted in the
old NPSPAC band than in the new NPSPAC band.113 Consequently, we find no merit in MSU's
implication that retuning its radios to the new NPSPAC band will pose a non-ionizing radiation hazard to
the radios' users.
(v)

Radio Certification

47.
MSU asserts that reducing the maximum frequency deviation of its 3-site scan radios
would void their certification and require a new equipment certification.114 It cites Section 2.932(a) of the
Commission's rules115 for the proposition that a new equipment authorization is required "whenever there
is a change in the design, circuitry or construction of an equipment or device for which an equipment
authorization has been issued."116 MSU also includes an opinion letter from Harris' counsel citing
unnamed Commission staff and unidentified "FCC policy documents" for the proposition that adjusting a
radio's frequency deviation "may be reasonably considered by the FCC staff to be changes to `basic
modulator circuit' requiring an application for new grant of certification [...]."117


111 MSU Supplemental SOP at 4.
112 Email from Gregory Snyder, PCTEST laboratory to Jonathan J. Nadler, Esq., TA Mediator, Mar. 22, 2013.
113 The body SAR measurements for the model 300P radio show that the SAR(1g) (W/kg) in the old NPSPAC band
is 1.809 (mobile transmit at 822.2250 MHz), whereas the comparable value in the new NPSPAC band is 1.739
(mobile transmit at 808.7500 MHz), i.e. the measured value in the old NPSPAC band is 0.07 W/kg higher than the
measured value in the new NPSPAC band. The difference is negligible but shows that there is no material increase
in SAR when the radio is retuned to the new NPSPAC band. See SAR Engineering Evaluation Report, S/N
0Y1210181525-R3.OWD, at 7, Table 6-2.
114 MSU PRM at 39.
115 47 C.F.R. 2.932(a).
116 Id.
117 Letter from George Wheeler, Esq. to Steve Smith, Project Manager, Harris Corp., May 9, 2012, Exhibit 3 to the
MSU PRM. See also, MSU SOP at 2.
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48.
Sprint, however, points out that adjusting the frequency deviation of a radio does not
change its design, circuitry or construction, and, therefore does not require a new authorization.118 The
TA Mediator concurs with Sprint, observing that deviation "is not a parameter that the Commission
specially certifies as to each radio".119 The TA mediator is correct. We discount the equivocal opinion
letter from Harris' counsel, inter alia, because it relies on unattributed hearsay.120 We also note that in
1988, at the inception of the NPSPAC band, the Commission authorized licensees to reduce the frequency
deviation of their existing radios without requiring the licensees to obtain a new equipment authorization
for the re-adjusted radios.121 Moreover, Sprint correctly notes,122 we recently approved a reduction of
radio deviation in the Genesee County case123 without requiring the radios to have a new equipment
certification. While MSU attempts to distinguish the Genesee County case by noting that it involved
"different manufacturer radios and different type certifications,"124 that is a distinction without a
decisional difference. The fact is that the Bureau approved reduction of the frequency deviation of the
Genesee radios without requiring that they be re-certified. Adjusting the frequency deviation of MSU's
radios is a routine maintenance procedure that does not change "the design, circuitry or construction" of
the radio and, therefore, does not require re-certification of the radio. Therefore, we find no merit to
MSU's claim that it cannot operate its 3-site scan radios in the NPSPAC band with maximum 4 kHz
frequency deviation without a new equipment authorization.
(vi)

Conclusion: The Radio Realignment Solution Provides MSU
With Comparable Facilities.

49.
Based on the laboratory results125 responsive to the Order Reopening the Record and the
Second Order Reopening the Record and the Parties' Statements of Position,126 we conclude that MSU
will receive comparable facilities if its radios are retuned to the new NPSPAC band with their maximum
frequency deviation reduced. The laboratory results show that there is no significant change in the radios'
operating parameters as between the old and new NPSPAC bands. Frequency stability is within limits in
both the old and new NPSPAC bands for all MSU radios tested. Although two models of MSU's
radios127 do not conform to emission mask H in either the old or new NPSPAC band, the radios' non-


118 Sprint Reply PRM at 29. See also Sprint SOP at 6-7.
119 RR at 20 quoting Sprint PRM at 45.
120 MSU argues, however, that we should give "compelling weight" to Harris' arguments that reducing the
maximum frequency deviation on its radios necessitates a new equipment authorization. MSU SOP at 4.
121 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, 3 FCC Rcd 5391 (1988).
122 Sprint PRM at 19.
123 County of Genesee, New York and Sprint Nextel Corp., Memorandum Opinion and Order,
26 FCC Rcd 12772 (PSHSB 2012).
124 MSU PRM at 42 n.41.
125 The laboratory submitted its initial results on Nov. 9, 2012. The laboratory report contained errors in the
production of certain material. The laboratory submitted a corrected report on Dec. 11, 2012. See Sprint Reply
Comments, Appendix A.
126 Herein, we consider both the Parties' Statements of Position filed June 25, 2012 and the Parties' post-remand
Statements of Position filed Mar. 12, 2013.
127 Models 300 P and MDR. The non-conformity occurs on the radios' control channel when modulated with a
9600 baud signal.
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conformity is inherent in the radios, not a result of retuning the radios to the new NPSPAC band and
reducing their frequency deviation. Under the Commission's rules and precedent, Sprint is only
responsible for providing rebanding licensees with comparable facilities. To the extent that a licensee's
facilities are deficient, ab initio, Sprint is not obliged to correct those deficiencies.
b.

The Interleaved Solution

50.
We agree with MSU that Sprint's Interleaved Solution would not provide MSU with
comparable facilities. Requiring users to carry two radios on their person or installing two radios in their
vehicles is impractical, unreasonable and would not result in MSU receiving comparable facilities. In
particular, encumbering an officer with an additional radio would limit his or her mobility and create
confusion over which radio to use in an emergency. Moreover, implementing the Interleaved Solution
would double the licensee's maintenance and repair costs for the duplicate radios.128
c.

The IMC Switch Solution

51.
We reject MSU's IMC Switch solution because it does not meet the minimum necessary
cost standard,129 i.e., it is substantially more expensive than the Radio Realignment Solution which, we
have determined, will provide MSU with comparable facilities.

B.

Minimum Necessary Costs

52.
The Parties disputed the costs associated with all of the options under consideration here
the IMC Switch Solution, the Interleaved Solution, and the Radio Realignment Solution. We now
address the disputes over the costs of the Radio Realignment Solution which, we have determined, will
provide MSU with comparable facilities.
53.
Specifically we will resolve the disagreements between the Parties about the costs of
equipment and services reasonably necessary to effect the Radio Realignment Solution so that MSU
receives facilities comparable to its existing system. In resolving these disagreements we reiterate that
under the Minimum Cost Standard, MSU has the burden of proving that the costs it seeks are reasonable,
prudent, and the "minimum necessary to provide facilities comparable to those presently in use."130
54.
We also note that the TA Metrics are instructive to our analysis. The TA Metrics are data
derived from the rebanding costs documented in approved FRAs and amendments between NPSPAC
licensees and Sprint.131 The Bureau has stated that, although the cost ranges presented in the TA Metrics
give rise to a presumption of reasonableness, they are not binding or dispositive of individual cases. In
particular, any party to negotiation or mediation may demonstrate that there are aspects of a
reconfiguration that differentiate it from the reconfigurations on which the TA Metrics are based,
therefore justifying higher or lower rebanding costs. Because rebanding licensees bear the burden of


128 We note that comparable operating cost is a factor in determining whether a licensee receives comparable
facilities. 800 MHz Report and Order, 19 FCC Rcd at 15077.
129 Improving Public Safety Communications in the 800 MHz Band, Memorandum Opinion and Order, 22 FCC Rcd
9818, 9821 (2007)("Sprint should not propose to pay and the TA should not approve payment of higher costs when
a lower-cost alternative is clearly available that would provide the licensee with comparable facilities as defined by
the Commission's orders in this proceeding and would effectuate a smooth and timely transition.") See also, Illinois
Public Safety Agency Network and Nextel Communications, Inc., Memorandum Opinion and Order, 26 FCC Rcd
10668, 10675 n.63 (PSHSB 2011); State of Indiana and Sprint Nextel Corp., Memorandum Opinion and Order, 26
FCC Rcd 5067, 5071 (PSHSB 2011).
130 800 MHz Report and Order, 19 FCC Rcd at 15074; 800 MHz Supplemental Order, 19 FCC Rcd at 25152 (2004).
131 See Public Safety and Homeland Security Bureau Announces Enhancements To The Metric Data Used In 800
MHz Rebanding Negotiations And Mediations, Public Notice, 25 FCC Rcd 8151 (PSHSB 2010).
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demonstrating that their proposed costs meet the Minimum Cost Standard, a licensee whose costs are
significantly higher than the costs incurred by licensees with similarly sized reconfigurations must
conclusively demonstrate by record evidence that its reconfiguration is, in fact, materially different from
the reconfigurations on which the TA Metrics are based. Costs that deviate greatly from the TA Metrics
will be given close scrutiny by the TA Mediators and by the Bureau in cases that are submitted for de
novo
review.132
55.
MSU argues that the TA Metrics ought not to be applied to its system which it
characterizes as an "outlier."133 For the reasons set out infra we disagree: the majority of the contested
tasks have parallels in other rebandings and the only things distinguishing MSU's proposals are the
excessive hours devoted to those tasks and the associated high cost. The fact that MSU's requests exceed
the median cost for rebanding systems of comparable size, in some instances by over 100 percent,
heightens MSU's burden of proof134 and mandates careful scrutiny of MSU's claimed costs.135 We
therefore discuss, below, those costs which are disputed by the parties, organized in the order in which the
TA Mediator addresses them in the RR.
1.

Radio Realignment Incremental Costs.

a.

Mitigation of Reduced Signal to Noise Ratio at Fill-In Sites.

56.
MSU's claimed costs for compensating for degradation in performance, if any, at 2 of its
sites the Sturgis and Maben sites are significantly high. The associated engineering cost falls in the
85th percentile and is 190 percent greater than the median; the infrastructure reconfiguration cost falls in
the 93rd percentile and is 221 percent greater than the median.136 Sprint contends that "no mitigation
measures or costs are necessary" because any performance degradation occasioned by reducing the
deviation of MSU's system from 5 kHz to 4 kHz is de minimis. Sprint also intimates that the Sturgis and
Maben sites may not be licensed or, if properly licensed, do not provide a meaningful amount of
service.137
57.
As MSU points out, and, as confirmed by the Commission's Universal Licensing System
records, the Sturgis and Maben sites are licensed under call sign WNPH677,138 under the licensee name
Mississippi State University Physical Plant. Sprint concedes that it does not know the location of these
two "fill-in" sites, but then goes on to speculate that their coverage may not be within the 22 dBu contour


132 Id.
133 MSU PRM at 18-19. MSU contends that, because Sprint furnished New York Communications Co. "the only
other 3-Site Scan system in the country that needed to be rebanded . . ." with an IMC switch, Sprint is obliged to do
the same for MSU. Id. at 28-29. As we have noted before, "[w]hile resolution of similar issues reached in other
mediations may be instructive, we note that none of these cases were referred to the Bureau, and we ultimately are
not bound by them because the facts and circumstances of other mediations vary and are not part of the record in this
case." City of High Point, North Carolina and Sprint Nextel Corp., Memorandum Opinion and Order, 24 FCC Rcd
3918, 3924 (PSHSB 2009).
134 County of Charles, Maryland and Sprint Nextel Corp., Memorandum Opinion and Order, 27 FCC Rcd 11476
(2012)(Charles County).
135 City of Manassas, Virginia and Sprint Nextel Corp., Memorandum Opinion and Order, 22 FCC Rcd 8526, 8527
(PSHSB 2007).
136 Sprint PRM at 56.
137 Sprint SOP at 13.
138 MSU PRM at 1 and n.2.
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of MSU's Sessums site, or that the facilities may be operating at less than maximum power.139 Sprint also
alleges that the sites were not properly registered pursuant to Section 90.693(c) of the Commission's
rules,140 and, therefore, may require "follow up licensing and cost recovery waivers."141
58.
There is no question that the Sturgis and Maben sites are operational. Indeed, they are
the subject of most of Sprint's arguments herein. If they were not timely registered with the
Commission, MSU may correct that oversight.142 We will not, as does Sprint, speculate about the
coverage of these sites, either absolutely or relative to the Sessums site's 22 dBu contour. Thus we find
Sprint's licensing arguments do not excuse it from providing comparable facilities at the Sturgis and
Maben sites.
(i)

Maben Site

(a)

Antenna and TTA Installation

59.
At the Maben site, MSU requests $25,560 for Harris' participation in installation of a
receiving antenna, the fabrication of an antenna mount and installation of a Tower Top Amplifier (TTA)
to offset the claimed degradation of signal to noise ratio in the signal presented to the base station
receivers by the mobile/portable transmitters.143 Sprint although claiming that the degradation is de
minimis
offers $8000 for adjustment of the existing TTA, an amount which it contends is adequate for
the services of a 3-person crew for 3-days.144 MSU claims that $25,560 is "reasonable" based on similar
work performed by Harris, but does not describe where Harris performed that work or what the work
entailed.145 The TA Mediator, however, notes that the cost claimed for the Maben site is six times that
claimed for the Sturgis site and that MSU has not shown that the effort at the Maben site relative to the
Sturgis site is unduly complex. Therefore, the TA Mediator recommends that the amount offered by
Sprint be accepted.146 We agree, but for different reasons. Although MSU has claimed that rebanding the
Maben site is fraught with "complexities"147 it does not explain what those complexities might be.
Additionally, MSU does not break out the discrete elements of the project, such that one can determine,
for example, which element is reasonable and which excessive. In short, MSU has not met its evidentiary
burden of showing that $25,560 is the minimum necessary cost for Harris' participation in fabricating an
antenna mounting bracket, re-adjusting or replacing a TTA and installing an antenna. We therefore
approve the $8,000 offered by Sprint for Harris' participation in this aspect of the Maben reconfiguration.
(b)

Structural Analysis

60.
MSU also requests $17,040 for structural analysis of the Maben site tower to determine
whether it will safely support a new antenna and TTA. MSU claims that the requested cost also includes


139 Sprint SOP at 4-5.
140 47 C.F.R. 90.693(c).
141 Sprint SOP at 5.
142 MSU, however, may be subject to enforcement action if it failed to timely register the sites.
143 RR at 23.
144 Id.
145 MSU PRM at 60.
146 Id. at 24.
147 Id. at 60.
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"structural design" of a new antenna mount.148 Sprint offers $2,500 for the structural design effort,
asserting that tower analysis for installation of a new receive antenna typically costs less than the $2,500
it has offered.149 MSU's asserted justification for the $17,040 amount is that it comports with "similar"
but unspecified other projects.150 Sprint's only justification for its figure is that it is "very common" for
tower analysis to cost less than $2,500.151 The TA Mediator notes that MSU "has not provided a detailed
breakdown of the tasks and requested hours or any support for its assertion that the amount requested is
consistent with other agreements."152 Nonetheless, The TA Mediator submits that the ratio of installation
services at the Maben and Sturgis sites should be applied here, i.e., that because the installation services at
the Maben site are twice those at Sturgis, that the structural design cost at Maben should also be
approximately twice that at Sturgis. The TA Mediator thus recommends that MSU receive $17,040 for
tower structural analysis at Maben. We disagree with the TA Mediator's reasoning. MSU has the burden
of proof here, and, as the TA Mediator has noted, has failed to break out the tasks and the requested hours
or substantiate its claim that "similar" other projects have cost an equivalent amount.153 Accordingly, for
MSU's failure to meet its burden of proof, we approve MSU receiving $2,500 the amount offered by
Sprint for tower structural analysis at the Maben site.
(c)

System Engineering

61.
MSU requests an additional $7,000 for 40 hours of Harris' system engineering services
for the Maben site to prepare a statement of work for analysis of the tower, evaluate responses, retain a
structural engineer, evaluate the engineer's work, prepare a statement of work for the tower contractor,
retain a tower contractor, and select equipment.154 It neither documents its requested costs, nor breaks out
the hours associated with each task. Sprint, however, breaks the tasks down by the number of hours it
estimates would be required for each, and concludes that each task, other than equipment selection,
should take three hours and that equipment selection should require no more than six hours. Sprint offers
no basis for its breakdown of costs other than that the tasks "should easily be able to be completed in two
to four hours each."155 The TA Mediator credits Sprint's estimates, but notes that Sprint omitted two
tasks in arriving at its estimates, and recommends that the "Commission award 28 hours . . . at a cost of
$4,900.156 We disagree with the TA mediator on this point. MSU's and Sprint's claims are equally
unconvincing, but MSU, as the TA Mediator concedes, "has not met its burden of proof."157 Accordingly,


148 Id. at 57.
149 Sprint PRM at 55.
150 MSU PRM at 60.
151 Sprint alleges that the TA Mediator "elevates an exercise in splitting the difference to a pseudo-science" in
comparing the costs associated with the Maben and Sturgis sites. Sprint SOP at 10.
152 RR at 24. See Sprint SOP at 11.
153 MSU could have presented an estimate from a structural engineer for the work, or obtained documentation from
Harris of charges for structural engineering that it has encountered in other rebanding cases.
154 MSU PRM at 57-58.
155 Sprint PRM at 39.
156 RR at 25.
157 Id.
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we approve MSU receiving $3,850158 the amount offered by Sprint for Harris' system engineering
services at the Maben site.
(d)

Infrastructure Retuning

62.
MSU seeks $3,621 for Harris to retune the Maben base station; Sprint offers $2,414. The
record is insufficient to distinguish between the two amounts which, as noted by the TA Mediator, result
in a de minimis $1,207 difference.159 Accordingly, as recommended by the TA Mediator, we approve
MSU receiving its requested amount $3,621 for Harris' retuning services.
(ii)

Sturgis Site.

(a)

TTA Adjustment/Replacement

63.
At the Sturgis site, MSU requests $4,260 for Harris to participate in the installation of a
new TTA; whereas Sprint offers $1,200 for adjustment of the existing TTA.160 MSU argues that it
requires a new TTA because there are no set procedures for adjusting the gain of the TTA, removing
attenuators, or replacing jumper cables. Accordingly, MSU submits, it must replace the existing TTA
with one having a lower noise figure.161 Sprint contends, however, that MSU can adjust the existing TTA
for $1,200 because that amount is consistent with the amount charged by Harris to participate in the
adjustment of a TTA in Lake County, Illinois.162
64.
We are not persuaded by MSU's argument that lack of "procedures" for adjusting the
gain of the TTA, removing attenuators, or replacing jumper cables, justifies furnishing and installing a
new TTA. Those tasks are well within the competence of an installation technician relying on the
manufacturer's installation/maintenance manual. However, we are even less persuaded by Sprint's
argument that adjustment of the existing TTA, the removal of attenuators, etc. would be sufficient to
make up for the loss of inbound signal- to-noise ratio occasioned by reducing the deviation of mobile and
portable units from 5 kHz to 4 kHz.163 Sprint's argument is speculative because it assumes, e.g., that it is


158 Calculated on the basis of 5 tasks at 3 hours per task, plus one task (equipment selection) at 6 hours, for a total of
21 hours at $175/hour.
159 RR at 26.
160 Id.
161 MSU PRM at 58-59.
162 Sprint PRM at 57.
163 The claimed reduction of signal-to-noise ratio rests on a report from engineer Jay Jacobsmeyer, P.E., a principal
of Pericle Comunications Co. Mr. Jacobsmeyer opines that a reduction of deviation in MSU's radios "might
degrade coverage" based on a study of MSU's radios in which he measured signal-to-noise ratio as a function of
reduced deviation. His measurements showed a reduction in signal-to-noise ratio of from -0.8 dB to -1.6 dB using
20 dB SINAD (Signal to Interference Noise and Distortion) as a benchmark and a change in signal-to-noise ratio
ranging from + 0.6 dB to -1.4 dB using 12 dB SINAD as a benchmark, depending on the radio being tested. Mr.
Jacobsmeyer then translated his findings to estimates of the coverage deficits that would be encountered with
reduced deviation, concluding that coverage could be reduced from 6.8% to 17.1% depending, inter alia, on the
location and type of the radio (mobile or portable). Conspicuously absent from Mr. Jacobsmeyer's study, however,
is documentation of where these coverage deficits might occur, i.e. whether the reduced coverage falls inside or
outside MSU's jurisdictional area the area in which MSU's radio users operate. Sprint conducted similar
measurements, finding that the change in signal-to-noise radio ranged from -0.1 dB to +1.1 dB, using 12 dB SINAD
as a benchmark. Sprint did not express its measurements in terms of coverage change. Jacobsmeyer's and Sprint's
measurements thus are generally consistent. Notable in both measurements is the fact that signal-to-noise ratio
improved in some radios when the deviation was reduced. This is contrary to theory and strongly suggests that the
differences in signal-to-noise ratio are so small as to be influenced by measurement and observational error and,
(continued....)
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possible to increase the gain of the existing TTA,164 that there are attenuators in the path between the TTA
and the base station receiver and that existing jumper cables have excessive loss. Moreover, we do not
credit Sprint's argument that its $1,200 offer is valid because Harris adjusted a TTA in Lake County,
Illinois for that amount. Sprint has not provided the particulars of that adjustment and has not
demonstrated that MSU can adjust its current TTA to overcome the signal-to-noise ratio shortfall.
Accordingly, because it is far from certain that MSU can accommodate the signal-to- noise ratio shortfall
merely by adjustment of the existing TTA, replacement of jumper cables and removal of attenuators, and
because a new TTA may, in fact, be necessary to compensate for the shortfall in signal-to-noise ratio we
approve the $4,260 requested by MSU for Harris' participation in the installation of a new TTA.
(b)

Structural Analysis

65.
MSU states, with respect to the Sturgis site, that its "only choice to make up the
deficiency in performance from Radio Realignment is to replace the existing TTA with one of more
modern design offering improved noise figure."165 It then goes on to say that "Harris intends to engineer
and modify the Sturgis site in a manner similar to Maben, requiring tower structural analysis and potential
modification and installation services."166 The "manner similar to Maben" analogy fails because, at
Maben, MSU contemplates installation of an additional antenna and mounting bracket which would
increase tower loading whereas at Sturgis, the only modification if the existing TTA cannot be
adequately adjusted is the substitution of one TTA for another. MSU requests $8,520 for a structural
study to demonstrate that the replacement of one TTA with another will not overload the tower. While
we are skeptical that such replacement requires a structural study, we are aware that certain leases167 for
space on existing towers can be interpreted to require such a study when equipment is replaced.
Accordingly, we approve MSU's requested structural study, conditioned, however, on MSU providing the
TA Mediator with a copy of its lease for the Sturgis site, which lease contains provisions requiring that
the lessee conduct a structural study when equipment on the tower is replaced, If the lease so provides,
we approve the $8,520 requested by MSU. If not, we disapprove the requested $8,520.
(c)

System Engineering

66.
We question why the requirement to "engineer and replace the existing TTA at Sturgis"
justifies the "Harris System Engineer cost estimate of 24 hours."168 The System Engineer's only task is to
select a "TTA . . . of more modern design offering improved noise figure."169 Once that is done, all that
remains is for a technician to install the TTA according to the instructions provided by the device's
manufacturer. Therefore, we conclude that the 4 hours of System Engineering time at $700, offered by


(...continued from previous page)
thus, are de minimis. In any event, the Parties agree that the signal-to-noise ratio at the Maben and Sturgis sites can
be improved by such measures as replacement of the TTAs with TTAs that have a lower noise figure, replacement
of jumper cables with lower loss cables and the use of a higher gain antenna.
164 MSU claims that the TTA currently is operating at its maximum gain. MSU PRM at 58.
165 Id. at 59.
166 Id.
167 Our use of the term "lease" is not intended to exclude any other relevant document showing such a requirement.
168 Id at 59.
169 Id.
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Sprint, is adequate for the System Engineer to choose a suitable TTA and address any questions that
might arise during the TTA's installation.
(d)

Infrastructure Retuning

67.
MSU requests $2,414 for two days of technician time to retune the Sturgis infrastructure.
Sprint offers one-half day at a cost of $603.50. MSU's request includes one day of travel time for the
technician; Sprint's offer does not. The difference between the MSU request and the Sprint offer is
$1,810.50, a de minimis amount considering the overall cost of this project. Accordingly, and because
Sprint's offer does not include travel time, we approve $2,414 for the retuning of the Sturgis
infrastructure.
(iii)

Services and Equipment Common to Maben and Sturgis

(a)

Systems Engineering Installation Support

68.
In addition to the $7,000 in system engineering services MSU requested for the Maben
site and the $4,200 in system engineering services MSU requested for the Sturgis site, MSU seeks an
additional $4,200 in system engineering services associated with equipment installation support at both
sites.170 MSU submits the additional $4,200 in system engineering is warranted because of
"complexities" at the Maben site and the need to replace the TTA at Sturgis.171 Sprint offers $1,400 for
this work. MSU has neither established that equipment installation at the Maben site is unduly complex
nor that the installation of the TTA at the Sturgis site--work conducted by a tower rigger--requires
extensive systems engineering. Accordingly we approve the $1,400 offered by Sprint.172
(b)

Replacement TTAs

69.
MSU seeks two new TTAs, one each for the Maben and Sturgis sites. Sprint has agreed
that MSU may need a new TTA at the Maben site, but contends that MSU can adjust the existing TTA at
the Sturgis site and therefore does not need a new TTA at that site.173 MSU, however, contends that it
needs new TTAs at both sites because that is what Harris recommends.174 The TA Mediator recommends
that Sprint be responsible for providing TTAs at both sites, but notes that in light of Sprint's claim that it
can provide the TTAs for less than MSU's claimed $10,000 each, it be allowed to do so in lieu of paying
MSU $20,000 for the two TTAs. We agree with the TA Mediator's recommendation. Sprint has
conceded the need for a TTA at the Maben site and its claim that a TTA is not needed at the Sturgis site
is, as noted above, speculative. Accordingly, if Sprint can furnish suitable TTAs it may do so as part of
the "Schedule D" equipment in the FRA, and need not pay the $20,000 requested by MSU.
2.

Mobile and Portable Radios

a.
3-Site Scan Radios
70.
MSU requests $28,000 for Harris system engineering services in connection with the
retuning of MSU's mobile and portable radios. It contends that this amount for Harris' services is
required because certain "testing" is necessary to make the 3-site scan radios ready for laboratory


170 See RR at 29.
171 MSU PRM at 59-60.
172 Sprint shall supply the replacement TTAs to MSU no later than 30 days after execution of an FRA by the parties.
173 See Sprint PRM at 57.
174 MSU PRM at 62-63.
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recertification and to derive a procedure for adjusting the modulation tracking of the radios.175 Sprint
offers $2,800 for Harris' services in connection with the 3-site scan radios. It points out that the
procedure for adjusting modulation tracking is already contained in the radios' maintenance manuals, and
asserts that recertification of the radios is unnecessary.176 The TA Mediator agrees with Sprint and
concludes that either the Commission will determine that recertification is unnecessary or that Sprint will
warrant that recertification is unnecessary. Therefore, the TA Mediator recommends that MSU receive
$2,800 the amount offered by Sprint.177
71.
As discussed supra, the Bureau has found that MSU need not recertify its radios. Given
that finding, there is no need for Harris to prepare the radios for recertification. Moreover, we agree with
Sprint that Harris does not need to develop new procedures for adjustment of modulation tracking
because the radio manufacturer's maintenance manual already contains those procedures.178 Although
Harris participated in the alignment and retuning of the sample radios to prepare them for evaluation by
the laboratory, supra, and Harris participated in the development of the laboratory's testing procedures,
MSU represents that "the cost for FCC laboratory certification testing is outside the scope of this System
Engineering task and will be borne in full by [Sprint]."179 We infer, without corroboration from Sprint,
that the "cost for FCC laboratory certification testing" includes Harris' participation in preparing the
radios for testing and devising a test procedure, and that such tasks were part of a "side arrangement"
between MSU and Sprint. If that is the case, we disallow both the $28,000 claimed by MSU and the
$2,800 offered by Sprint. If that is not the case, however, i.e. if there is not an agreement between MSU
and Sprint whereby Sprint is covering the costs associated with testing of the radios, then we approve
$2,800, the amount offered by Sprint, for Harris' participation in that task.
b.

Replacement Radios Associated With the Interleaved Solution

72.
Sprint represents that, had MSU elected the Interleaved Solution (which involves 3-site
scan users carrying two radios), Sprint would pay for retuning 200 radios180 at a labor cost of $79,865.29
for first touch, second touch, personality development and travel costs.181 The parties included this
$79,865.29 in the "common costs" category and Sprint urges that it be deleted from that category if the
Bureau approves the Radio Realignment Solution which does not involve radio replacement. MSU,
however, claims it is entitled to 200 replacement radios so that it can maintain "wideband," i.e. no
reduced frequency deviation, operation for communication with its interoperable partners.182 It claims
that reducing the deviation of a radio makes it suitable for local operation but not for operations outside
MSU's service area. Sprint disputes the claim and contends that radios remain "comparable" even with


175 Id. at 63-64.
176 Sprint PRM at 59.
177 RR at 31.
178 Sprint PRM at 59.
179 MSU PRM at 64.
180 The TA Mediator correctly notes that "[t]he 200 radio figure represents an estimate of the number of radios that
have activated 3-Site Scan capability. During rebanding, the Licensee will need to demonstrate the exact number of
radios that have the 3-Site Scan capability activated. As a consequence, these costs . . . may increase or decrease."
RR at 32 n.170.
181 RR at 31.
182 MSU PRM at 64-65.
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their frequency deviation reduced.183 The TA Mediator, having found that Sprint's Radio Realignment
Solution (which involves reduced frequency deviation) provides MSU with comparable facilities, rejects
MSU's claim for Harris' labor costs associated with replacement radios and recommends that the
Commission find that the $79,865.29 should be deleted from the common costs.184 We find that MSU has
merely asserted, without supporting analysis, that its radios would not be "comparable" when used on
other licensees' systems. Although reduced deviation may result in a theoretical reduction in signal-to-
noise ratio,185 MSU has failed to show that the reduction is other than de minimis. Accordingly, we agree
with Sprint that $79,865.29 should be deducted from the common costs.
3.

Coverage Testing

a.

Drive Testing Harris Oversight

73.
There is a $700 difference between the amount requested by MSU for Harris' oversight
of coverage testing and the amount offered by Sprint. We agree with the TA Mediator that the difference
is de minimis and approve the $2800 requested by MSU.186
b.

Drive Testing

74.
MSU requests $7,242 for 6 days of drive testing;187 Sprint offers $4,828 for 4 days of
testing, asserting that travel costs, included in MSU's requests, have already been accounted for in the
equipment reconfiguration category and, therefore, have been "double counted" here.188 Sprint also
claims that the Maben and Sturgis sites are "rural sites without much around them in terms of population
or a network of roads" and, therefore, that extensive drive testing is neither necessary nor possible.189 The
TA mediator recommends the Commission approve 5 days of testing at a cost of $6,305,190 noting that
Sprint has not accounted for MSU's additional one person-day for test equipment calibration and a "dry
run" to verify test equipment performance. We agree that the additional person-day is reasonable and
approve 5 days of testing at $6,305.
4.

Travel and Per Diem Costs Harris

75.
The RR states that "[t]he Licensee requests 18 days and one system engineer trip at a cost
of $5,248.80."191 Inconsistently, however, in the following paragraph, the RR states that MSU seeks "six
person-days for the installation technicians and six person-days for the testing technicians at a cost of
$262.70 per day; six vehicle-days at a cost of $99.40 per day; and $1,500 for the system engineer trip,"
for a total of $5,248.80192 We conclude, therefore, that the TA Mediator intended to state that MSU
requests 12 not 18 person-days for the technicians, plus the vehicle cost and the cost of the system


183 Sprint PRM at 59-60.
184 RR at 31.
185 See supra n.163.
186 RR at 32.
187 MSU PRM at 66.
188 Sprint Reply at 43.
189 Sprint PRM at 60.
190 RR at 32.
191 Id. at 33.
192 Id.
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engineer's trip. The TA Mediator also reports that Sprint allots two person-days for the installation
technicians, four person-days for the drive test technicians, and $1,500 for the system engineer and states
that "[i]n addition, Sprint Nextel offers two days of drive testing for two testers per day, resulting in four
person-days of travel and two vehicle days" and that "Sprint Nextel offers ten days and one system
engineer trip at a total cost of $3,473.80."193 Again, there appears to be an inconsistency in the TA
Mediator's report inasmuch as the TA Mediator has recited two person-days for "drive test technicians"
and two-person days for two "testers" whom we believe to be the same individuals. This is borne out by
the fact that $3473.80, less the $1,500 system engineer cost, less the vehicle cost ($99.40 * 4 = $397.60)
is equal to $1,846.20 which, when divided by the technician travel cost of $262.70 per technician, yields a
total of 6 not 10 person-days. The 6 day figure is also consistent with the TA Mediator's final
recommendation: "the TA Mediator recommends that the Commission award six person-days of travel,
as well as three vehicle days, in connection with this task."194
76.
Sprint's reasoning for allotting fewer person-days for the Harris technicians is that most
of the site work e.g., tower analysis, antenna and line installation would be performed by outside
contractors.195 Sprint's reasoning may be correct with respect to the tower analysis, but the site work is
likely to require the participation of the Harris technicians, e.g., in verifying the return loss of the antenna
once installed, adjusting the gain of the TTA, etc. Accordingly, we approve the same amounts as in the
TA Mediator's final recommendation: six person-days, four vehicle days and $1,500 in system engineer
travel, for a total of $3,473.80.
5.

Harris System Engineering and Tusa Consulting Costs

a.

Harris System Engineering

77.
MSU requests $31,500 in Harris system engineering costs associated with infrastructure
rebanding; 196 Sprint offers $15,400. MSU claims that its infrastructure rebanding costs are higher than
normal because they involve (a) modification of RIC/LIX equipment197 and (b) removal of "G-MARC"
equipment.198 As Sprint points out, however, a technician will modify the RIC/LIX equipment according
to a manufacturer-provided procedure.199 Similarly, a technician will remove the G-MARC equipment.
We therefore conclude that the system engineer's involvement in these two processes, if any, will be
minimal. Accordingly, we find that MSU's claim that its infrastructure rebanding systems engineering
costs would be higher than normal lacks foundation. The TA Mediator, however, concludes that MSU
has met its burden of proof because it "provided comparisons to other rebanding projects."200 We
disagree because MSU has not referenced any specific rebanding projects as the basis for its claims and,


193 Id.
194 Id. at 34.
195 Sprint PRM at 56.
196 MSU PRM at 23.
197 RIC/LIX equipment is used to connect MSU's system to the Public Switched Telephone Network.
198 RR at 34. The role of the G-MARC equipment is unclear from the Parties' filings, however the Parties apparently
agree that the G-MARC equipment will not be used in MSU's system post-rebanding, and, therefore, must be
removed.
199 Sprint SOP at 15. We have previously approved modification of a RIC/LIX unit for use with a MASTR III
repeater the model of repeater that will be used by MSU. City of Parma, Ohio and Sprint Nextel Corp.,
Memorandum Opinion and Order, 25 FCC Rcd 13485, 13489-13490 (PSHSB 2010).
200 RR at 35.
28

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instead, has stated, for example, only that a given task "historically varies between 8 and 40 hours
depending on quantity and complexity of required equipment."201 Sprint's argument that $15,400 is
sufficient because "other projects of various sizes . . . had a Harris System Engineer compensated at 88
hours"202 at $175 per hour is supported by reference to three rebanding projects and the basic details
thereof which Sprint contends were more complex than MSU's project.203 As between MSU's claimed
amount and Sprint's offered amount and bearing in mind that MSU has the burden of proof here we
find that Sprint's offer more accurately reflects the cost of system engineering for rebanding MSU's
relatively small system204 and therefore approve $15,400, the amount offered by Sprint, for infrastructure
system engineering.
b.

Tusa Consulting Services

(i)

On-site Tusa Project Manager

78.
MSU requests $93,000 for 744 hours of services by a Tusa on-site project manager;
Sprint offers $45,000 for 360 hours.205 MSU requests $10,044 for 74.4 hours of Tusa's "principal
oversight;" Sprint offers 8 hours at a cost of $1,080.206 MSU seeks $65,138 for 492.6 hours of Tusa's
"other project management" services.207 Sprint offers 308 hours at $40,280.
79.
MSU justifies the "on-site project manager" time by claiming that the Tusa project
manager would not duplicate the services of the Harris project manager because the Harris on-site project
manager's duties would be confined to supplying equipment and providing "stewardship" of Harris
resources, whereas the Tusa on-site project manager would limit schedule changes, validate radio
programming and resolve "unexpected obstacles."208
80.
Sprint claims that having "a full time on site project manager for all active project days . .
. is neither necessary nor standard for rebanding,"209 and submits that the services of the Tusa on-site
project manager would duplicate those of Harris' full-time "Quality Assurance Manager." The TA
Mediator agrees with Sprint that MSU has failed to meet its burden of showing the necessity for a full-
time project manager from Tusa for all active project days.210 He points out that MSU has a relatively
small system and that Sprint has already allocated significant sums for management of the project.
Accordingly, the TA Mediator recommends that the Bureau approve 360 hours of on-site management
services by Tusa for $45,000 the amount offered by Sprint.211 Given the relatively few tasks assigned to


201 MSU PRM at 20.
202 Sprint PRM at 26.
203 Id. at 26-27. (Sprint cites rebanding projects for the State of Alabama, the City of Jackson, Mississippi and the
City of Hartselle, Alabama.)
204 As Sprint points out, rebanding of MSU's facilities involves only "a five channel site, a 10 channel site with a
collocated mutual aid channel and an off-the-air 5 channel backup system." Sprint PRM at 26. The MSU sites are
not interconnected, and simulcast operation is not employed. Id. at 27.
205 Sprint Reply PRM at 12.
206 Id.
207 RR at 35; Sprint Reply PRM at 13.
208 MSU PRM at 23-24.
209 Sprint PRM at 28.
210 RR at 38.
211 Id.
29

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the Tusa on-site manger scheduling, programming validation and the resolution of unforeseen obstacles
we find that the amount recommended by the TA Mediator is ample, and approve $45,000 for on-site
manager services.
(ii)

Principal Oversight Engineer

81.
MSU envisions "principal oversight" as the services of a degreed engineer who will
support the on-site project manager to resolve such issues as frequency management, antenna propagation
and licensing. It claims that Sprint typically has agreed to "principal oversight" calculated on the basis of
20% of on-site managers' time but that, here, MSU is requesting "principal oversight" at a rate of only
10% of the on-site manager's time.212 Sprint does not address MSU's claim for "principal oversight,"
indicating that it will accept the amount claimed for this service so long as, in combination with other
services, it does not exceed the total amount offered by Sprint.213 The TA Mediator, noting that MSU
requests "principal oversight" at 10% of on-site manager's time, and that he has recommended $45,000
for on-site manager services, recommends that the Commission find that 36 hours of "principal
oversight" at a rate of $135 per hour, for a total of $4,860 is reasonable.214 We disagree. MSU is
proposing that a principal overseer oversee the work of an on-site manager, who, in turn, oversees a
Harris "Quality Assurance Manager" who, one presumes, oversees the work of Harris technicians
performing the actual rebanding tasks. We have before disapproved this kind of "layering" of project
management services.215 We do so again here and totally disallow MSU's claim for "principal oversight."
(iii)

Other Project Management Services

82.
MSU asserts that its requested "other project management services" include those "in
addition to . . . and unrelated to the tasks associated with either the on-site PM [Project Manager] or the
Principal Advisor" and that are to be performed by other Tusa employees.216 It claims that it developed
the estimated number of hours for each such task based on FRAs concluded with several other licensees,
but "adjusted" by MSU because of the asserted relatively higher complexity of its rebanding project. It
also submits that the amount claimed is justified because MSU lacks staff to perform the services
proposed for the Tusa employees.217
83.
Sprint characterizes Tusa's costs as "exceptionally high," i.e., that Tusa is charging 0.82
hours of project management time for each subscriber unit whereas, in other rebanding projects, Tusa has
accepted approximately 0.42 hours per subscriber unit.218 Sprint also contends that Tusa's proposed
project management costs here are greater than 40% of the overall project costs whereas Sprint's offer
"comes in at about 20% which is far more consistent with the TA guidelines."219 Additionally, Sprint
counters MSU's contention that the claimed amount is reasonable because of MSU's limited resources,
by pointing out that the projects Sprint used to compare with MSU's "contain very little if any internal


212 MSU PRM at 24.
213 Sprint PRM at 29.
214 RR at 38.
215 Charles County, 27 FCC Rcd at 11481 (2012)(Commission affirmation of a Bureau Memorandum Opinion and
Order
, 26 FCC Rcd 12749 (PSHSB 2009), denying licensee's claim for duplicative services).
216 MSU PRM at 25.
217 Id. at 24-25.
218 Sprint PRM at 30.
219Id.
30

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DA 13-1703

project management time."220 Finally, Sprint argues that MSU's system is significantly less complex than
the systems which MSU used as a basis for comparison.
84.
The TA Mediator concurs with Sprint that MSU has not demonstrated that its project
management costs are greater than suggested by the TA Metrics or shown why Tusa's costs here are
higher than the company has charged in other rebanding projects. The TA Mediator thus recommends
that the Bureau approve only the amount offered by Sprint for other project management services -
$40,280.221
85.
We agree with the TA Mediator that MSU has failed to meet its burden of proof to show
that its requested project management services are the minimum necessary to successfully reband its
system. Although MSU claims to have based its cost on those from other FRAs "adjusted" to reflect the
alleged complexity of MSU's system relative to others, MSU has neither identified the other FRAs nor
stated the amount of its "adjustment." Moreover, we note that MSU has not contested Sprint's
observation that the cost per subscriber unit requested by MSU is nearly twice that charged by Tusa in
other rebanding projects. As the Commission affirmed in its Charles County Order, a licensee's burden
of proof increases as a function of the degree to which its costs deviate from the norm.222 Costs nearly
double that of the norm deserve especially close scrutiny. Applying that scrutiny here, we find the need
for "other" project management services is poorly documented and otherwise unsupported. Accordingly,
we limit MSU's compensation for other project management services provided by Tusa to $40,280.
c.

Negotiation Costs Incurred Between October 18, 2011 and March 9,
2012

86.
MSU seeks $2,800 for its internal costs in participating in negotiation during the period
October 18, 2011 to March 9, 2012. It also seeks $51,187.50 for Harris' services in participating in
negotiation; $12,306 for Tusa's participation, and $25,534.50 for participation of its outside counsel,
Schulman Rogers.223 Sprint contends that MSU is entitled to no payment for negotiation costs incurred
during the October 18, 2011 and March 9, 2012 period. Sprint's theory is that MSU is not entitled to
payment because it breached its obligation of good faith by (a) intentionally delaying submission of a cost
estimate; (b) failing to provide information requested by Sprint during mediation; and (c) exhibiting
unreasonable conduct during mediation.224
87.
MSU denies Sprint's accusation that it breached the good faith obligation. It contends
that it did not withhold information from Sprint because such information existed only in draft form for
internal discussions, and, therefore, was not a final document to which Sprint was entitled.225 It also
asserts that it encountered delay because, during the planning for the IMC Solution, supra, it discovered
that the IMC switch would not be available from the vendor and that a telephone interconnect product
was not available for MASTR III base stations.226 This information, MSU contends, caused it to look into
alternative options including a new Project 25 system. MSU claims its failure to provide certain other


220 Id. at 29-30.
221 RR at 38.
222 Supra n.134.
223 RR at 38.
224 Sprint PRM at 32.
225 MSU PRM at 26.
226 Id.
31

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information requested by Sprint during mediation was due to the fact that its system is operated on a
decentralized basis and, therefore, that the information was not readily available from a central source.227
88.
The TA Mediator concludes that Sprint has alleged the equivalent of a conspiracy among
MSU, its vendors and consultant to delay rebanding negotiations until the IMC Solution was no longer
viable and MSU could then claim entitlement to a new Project 25 system.228 The TA Mediator faults
Sprint for its failure to provide "direct evidence" of its claim, and finds that MSU has provided a
"plausible explanation" for the delayed negotiations.229 He also concludes, however, that MSU could
have advanced its IMC proposal in 2009 and, instead, devoted almost three years to developing a Project
25 proposal. This, the TA Mediator suggests, represents a "serious lack of diligence" on MSU's part.230
We agree with the TA Mediator that Sprint's quasi-conspiracy theory as to MSU's motives is entirely
speculative. We disagree, however, that the record supports a "serious lack of diligence" by MSU. Its
explanation of why it did not present the "draft" IMC solution in 2009 is at least plausible. Thus, lack of
diligence in this case does not support denying MSU its negotiation and mediation expenses incurred
from October 18, 2011 to March 9, 2012. We therefore approve $91,828 in negotiation and mediation
costs.
d.

Negotiation Costs Charged by Harris After March 9, 2012

89.
MSU requests $28,612.50 for 163.5 hours of additional negotiation support provided by
Harris after March 9, 2012 and claims that it is entitled to that amount because that was the "actual cost"
incurred and that the cost is "reasonable."231 Sprint offers $14,000 for 80 hours of Harris negotiation
support, alleging that it has been "standard practice" to pay Harris for 80 hours of negotiation support
regardless of the complexity of the rebanding project or the number of Harris employees involved.232
90.
The TA Mediator concludes that MSU has satisfied its burden of proof on the negotiation
support issue and recommends that the Bureau approve the $28,612.50 requested by MSU because of the
TA Mediator's personal knowledge of the extent to which Harris participated in negotiations.233 We
concur in the TA Mediator's recommendation. Sprint has failed to support its "standard practice"
argument with citation to any particular rebanding or rebandings to which Harris was a party or otherwise
shown that MSU's expenses for Harris negotiation support are unreasonable. We therefore approve
MSU's requested $28,612.50 for negotiation costs incurred after March 9, 2012.

C.

Sprint's Allegations of Bad Faith

91.
Sprint claims that:
MSU has breached the duty imposed by the Federal Communications
Commission to negotiate in good faith with Nextel because it has failed to
timely provide accurate information, has failed to be prepared for most


227 Id.
228 RR at 42.
229 Id.
230 Id.
231 MSU PRM at 28.
232 Sprint PRM at 33.
233 RR at 44.
32

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DA 13-1703

exchanges of information in the negotiation and mediation process and has
lacked candor in its dealings with the Commission, the TA and Nextel.234
Sprint accuses MSU of "withholding . . . an IMC switch configuration plan for years" and advancing "a
P25 network replacement cost estimate in bad faith, as it plainly had the ability to have rebanded its
system in 2008 or 2009, and instead, withheld that plan until it could attempt to justify a P25 system
replacement."235 Sprint claims that MSU misled the Commission concerning the status of its rebanding
project, missed scheduling deadlines imposed by the TA Mediator, failed to respond to information
requests and withheld information on how its network could be optimized.236 As recompense for MSU's
alleged lack of good faith, Sprint argues that MSU should be disallowed costs associated with its attempt
to advance a Project 25 network proposal.237 In the alternative, Sprint argues, some of MSU's negotiation
and mediation costs should be disallowed because they were not the minimum necessary and prudent
costs to effect reconfiguration of MSU's system.238
92.
For its part, MSU contends that its efforts to obtain a Project 25 system rested on a "good
faith belief by MSU . . . that such a system would be comparable and was necessary given the
unavailability of critical IMC components."239 MSU also denies "withholding rebanding plans" because
such plans as existed were only "drafts for discussion and comments."240
93.
The TA Mediator recommends that the Bureau find that MSU did not breach its good
faith obligation. Although the TA Mediator finds that MSU was not diligent in certain instances in
providing necessary information, he finds that MSU did not engage in a "scheme to impermissibly obtain
a P25 system," that MSU had presented a plausible reason for its delay in going forward with rebanding,
and that there was no record evidence of intentional delay on MSU's part.241
94.
We agree with the TA Mediator, who had first-hand knowledge of events during
mediation. A finding of lack of good faith requires more than Sprint's conjectural accusations.

D.

MSU's Allegations of Bad Faith

95.
MSU contends that Sprint has acted in bad faith by first proposing replacement radios for
MSU's system and then withdrawing the offer; by refusing to negotiate MSU's IMC Switch solution; and
refusing to replace MSU's obsolete 3-site scan radios when, in other rebanding negotiations, it has agreed
to replace such radios.242 MSU also claims that "it is arguable that Nextel acted in bad faith here" and
that Sprint "sucked MSU and its vendors into incurring costs which Nextel did not intend to pay."243 As a
remedy for Sprint's alleged bad faith, MSU submits that Sprint should pay all costs necessary to
implement the IMC Switch solution. We disagree and find that Sprint's actions represent no more than


234 Sprint PRM at 61.
235 Id.
236 Id. at 62-63.
237 Id. at 65, Sprint SOP at 16-19.
238 Sprint SOP at 16-17.
239 MSU PRM at 26.
240 Id. at 69.
241 RR at 42.
242 MSU PRM at 74-75.
243 Id.
33

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DA 13-1703

the usual give-and-take of the negotiation process. We also remind both Parties that, as provided in the
800 MHz Report and Order, the Commission disapproves of instances "in which a party frivolously or
without substantiation, charges another party with failure to negotiate in good faith."244

V.

SUMMARY

96.
The Bureau has gone to extraordinary lengths to ensure that the record accurately
reflected whether rebanding of MSU's radios would result in MSU's receiving comparable facilities when
retuned to the new NPSPAC band. The record shows that it is an inherent performance deficiency in the
radios not their being retuned to the new NPSPAC band that is the cause of two radio models
exceeding the emission mask H limits when operated in the new NPSPAC band.
97.
This is not the first instance in which the Bureau has held that Sprint is not liable for
correcting pre-existing deficiencies in a licensee's radios. In the City of Parma, Ohio case245 the licensee
claimed that it was entitled to replacement radios because its existing radios did not meet the
Commission's frequency stability rules in either the old or new NPSPAC band. The Bureau held that the
Comparable Facilities Standard did not mandate that Sprint correct the deficiencies or provide the
licensee with replacement radios.246
98.
In evaluating the validity of MSU's claimed expenses we have been guided by two
bedrock principles of 800 MHz rebanding: (1) Sprint bears the evidentiary burden of showing that
licensees will have comparable facilities, post-rebanding, and (2) licensees bear the evidentiary burden of
showing that their claimed costs are the minimum necessary to provide comparable facilities. 247 The
following chart summarizes the categories of expenses that the parties have contested, the TA Mediator's
recommendations and our disposition of the contested items.

Task

MSU Request

Sprint Offer

TA Mediator

FCC Approval

Recommendation

Maben TTA
$25,560
$8,000
$8,000
$8,000
engr.
Maben Structural $17,040
$2,500
$17,040
$2,500
Analysis
Maben System
$7,000
$3,850
$4,900
$3,850
engineering in
support of tower
analysis


244 800 MHz Report and Order, 19 FCC Rcd at 15077.
245 City of Parma, Ohio and Sprint Nextel Corp., Memorandum Opinion and Order, 25 FCC Rcd 13485 (PSHSB
2010)(Parma).
246 The Bureau also held that, absent a waiver, the City of Parma could not operate its radios in the new NPSPAC
band.
247 See, e.g., Charles County, 27 FCC Rcd at 11479; Illinois Public Safety Agency Network and Nextel
Communications, Inc., Memorandum Opinion and Order, 27 FCC Rcd 11459, 11465- 11466 (PSHSB 2012); State
of Indiana and Nextel Communications, Inc., Memorandum Opinion and Order, 27 FCC Rcd 11469, 11470 n.11
(PSHSB 2012), citing 800 MHz Report and Order, 19 FCC Rcd at 15074 and Improving Public Safety
Communications in the 800 MHz Band, Memorandum Opinion and Order, 20 FCC Rcd 16015 (2005);
Commonwealth of Massachusetts and Sprint Nextel Corp., Memorandum Opinion and Order, 27 FCC Rcd 11493,
11494 n.12 (PSHSB 2012); Port Authority of New York and New Jersey and Sprint Nextel Corp., Memorandum
Opinion and Order,
27 FCC Rcd 1888, 1889 (PSHSB 2012); County of Genesee, New York and Sprint Nextel
Corp., Memorandum Opinion and Order, 26 FCC Rcd 12772, 12774 (PSHSB 2011).
34

Federal Communications Commission

DA 13-1703

Task

MSU Request

Sprint Offer

TA Mediator

FCC Approval

Recommendation

Maben Retune
$3,621
$2,414
$3,621
$3,621
Sturgis TTA
$4,260
$1,200
$4,260
$4,260
engr.
Sturgis Structural
$8,520
$0
$8,520
$8,520248
Engineering
Sturgis System
$4,200
$700
$2,975
$700
Engineering in
support of TTA
replacement
Sturgis Retune
$2,414
$603.50
$2,414
$2,414
System
$4,200
$1,400
$1,400
$1,400
Engineering in
support of
equipment
installation
TTA Equipment
$20,000
See n.249 infra.249
See n.250 infra.250
See n.251 infra.251
Retuning 200
$79,865.29
$0
$0
$0
Radios
Harris Oversight
$2,800
$2,100
$2,800
$2,800
Method 1 Testing
Drive testing travel $7,242
$4,828
$6,305
$6,305
and per diem
Harris technicians
$5,248
$3,473.80
$3,473.80
$3,473.80
and engineer travel
and per diem
Harris System
$31,500
$15,400
$31,500
$15,400
Engineering
Tusa on-site
$93,000
$45,000
$45,000
$45,000
manager.
Tusa "principal
$10,044
$1,080
$4,860
$0
oversight"
Tusa other
$65,138
$40,280
$40,280
$40,280
management
services
Negotiation costs $91,828
$0
$91,828
$91,828
10/18/11-3/9/12


248 Approval is conditioned on MSU providing the TA Mediator with a copy of the Sturgis lease showing that a
structural study is required when equipment on the tower is replaced. See 65 supra.
249 Sprint proposes to supply two TTAs for less than $20,000 as part of "Schedule D" equipment.
250 The TA Mediator concurs that Sprint may supply the TTAs.
251 The Bureau supports the Sprint proposal to provide the TTAs for less than $20,000 as part of the Schedule D
equipment.
35

Federal Communications Commission

DA 13-1703

Task

MSU Request

Sprint Offer

TA Mediator

FCC Approval

Recommendation

Harris negotiation
$28,612.50
$14,000
$28,612.50
$28,612.50
cost post 3/9/12
99.
In sum, applying our case precedent and the 800 MHz Report and Order and subsequent
orders, we find that MSU will receive comparable facilities if its existing 3-site scan radios are retuned to
the new NPSPAC band. To the extent that the retuned radios do not meet emission mask H requirements
in the new NPSPAC band when operated on the control channel, their failure to meet those requirements
is not a consequence of retuning the radios. The radios' performance before and after retuning is
comparable, albeit deficient, with respect to emission mask conformity. Therefore, the responsibility for
remedying such deficient performance rests with MSU, not Sprint. We have, however, relieved MSU of
that responsibility by waiving conformity with emission mask H for the non-compliant radios when they
are operated on the control channel because the non-compliance is so transient as not to pose an actual
interference hazard. Finally, we have reviewed each component of MSU's claimed costs and, where
appropriate, have disapproved some of those costs as excessive.

VI.

ORDERING CLAUSES

100.
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 IS ORDERED that the
issues submitted by the Transition Administrator are resolved as discussed above.
101.
IT IS FURTHER ORDERED, that Section 90.210 of the Commission's rules, 47 C.F.R.
90.210, IS WAIVED to the extent indicated herein.
102.
IT IS FURTHER ORDERED, that representatives of Sprint Nextel Corporation and the
Mississippi State University, each with the authority to bind its principal, SHALL MEET under the
auspices of the Transition Administrator Mediator, within ten business days of the release date of this
Memorandum Opinion and Order to conclude a Frequency Reconfiguration Agreement consistent
herewith and that such meeting shall continue from business day to business day until the parties reach
agreement in principle.
103.
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
36

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