Skip Navigation

Federal Communications Commission

English Display Options

Commission Document

Commonwealth of Massachusetts Memorandum Opinion and Order

Download Options

Released: September 20, 2012

Federal Communications Commission

FCC 12-104

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of
Commonwealth of Massachusetts
WT Docket No. 02-55
Sprint Nextel Corporation


Adopted: September 7, 2012

Released: September 20, 2012

By the Commission:



1. On March 4, 2011, the Commonwealth of Massachusetts (the Commonwealth) filed an
Application for Review1 of a February 3, 2011 Memorandum Opinion and Order (Massachusetts Order)
issued by the Commission’s Public Safety and Homeland Security Bureau (PSHSB or Bureau).2 For the
reasons set forth below, we deny the application for review and affirm the Bureau’s decision.



2. The 800 MHz Report and Order and subsequent orders in this docket require Sprint to
negotiate a Frequency Reconfiguration Agreement (FRA) with each 800 MHz licensee that is subject to
rebanding.3 The FRA must provide for relocation of the licensee’s system to its new channel
assignment(s) at Sprint’s expense, including the expense of retuning or replacing the licensee’s
equipment, as required. If a licensee and Sprint are unable to negotiate a FRA, they enter mediation
under the auspices of a Transition Administrator (TA) appointed mediator. If the parties do not reach
agreement in mediation, the mediator forwards the mediation record and a recommended resolution to the
PSHSB for de novo review.4
3. The Massachusetts Order addressed a dispute between the Commonwealth and Sprint over

1 Application for Review, filed March 4, 2011 by the Commonwealth of Massachusetts (Massachusetts AFR).
2 Commonwealth of Massachusetts and Sprint Nextel, Memorandum Opinion and Order, 26 FCC Rcd 1068
(PSHSB 2011) (Massachusetts Order).
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, 15021-45, 15069 ¶¶ 88-141, 189 (2004)
(800 MHz Report and Order); Improving Public Safety Communications in the 800 MHz Band, Supplemental Order
and Order on Reconsideration
, 19 FCC Rcd 25120 (2004) (800 MHz Supplemental Order); and Improving Public
Safety Communications in the 800 MHz Band, Memorandum Opinion and Order, 20 FCC Rcd 16015 (2005).
4 The 800 MHz Report and Order originally provided for referral and de novo review of unresolved mediation issues
by the Public Safety and Critical Infrastructure Division of the Commission’s Wireless Telecommunications Bureau.
800 MHz Report and Order, 19 FCC Rcd at 15075 ¶ 201. However, the Commission has since delegated this
authority to the Public Safety and Homeland Security Bureau. See Establishment of Public Safety and Homeland
Security Bureau, Order, 21 FCC Rcd 10867 (2006).

Federal Communications Commission

FCC 12-104

whether the comparable facilities standard, and Section 90.699(d) of the Commission’s rules,5 compelled
Sprint to pay for the narrowbanding6 of 31 bi-directional amplifiers (BDAs) which the Commonwealth
installed in vehicular tunnels prior to the commencement of commercial cellular service in the tunnels.7
The Bureau found that Sprint was not responsible for the cost of narrrowbanding the BDAs.8
4. On March 4, 2011, the Commonwealth filed the instant application for review of the
Massachusetts Order. In its application for review, the Commonwealth contends that the Bureau did not
adequately perform a de novo review and misapplied the Commission’s 800 MHz rebanding orders when
it found that Sprint was not responsible for the cost of narrowbanding the BDAs.9 Specifically, the
Commonwealth argues that the Bureau did not address “[the Commonwealth’s] position why Sprint
Nextel is responsible and why its technical analysis is credible and interference is real.”10 In addition, the
Commonwealth argues that the Bureau’s decision “defeats the central objective of the Commission’s
work – to ensure public safety operations are not interfered with by commercial operations.”11



5. The obligation that is at issue here is Sprint’s obligation to provide rebanding licensees with
comparable facilities at minimum necessary cost.12 The Commonwealth conflates that obligation with the
obligation of Sprint and other carriers to abate unacceptable interference to 800 MHz public safety
systems if that interference actually occurs13 in order to argue that Sprint is obligated to narrowband the
Commonwealth’s BDAs.


De Novo


6. The Commonwealth contends that, because the Bureau characterized two reports the
Commonwealth submitted in the record as “irrelevant,” the Bureau did not perform a de novo review of
the record presented to it by the TA Mediator.14 We disagree with this assessment. From the text of the

5 The comparable facilities standard, states that licensees are only entitled to facilities that will provide the same
level of service as the licensees’ existing facilities, with transition to the new facilities as transparent as possible to
the end user. Specifically, this standard includes (1) equivalent channel capacity; (2) equivalent signaling capability,
baud rate and access time; (3) coextensive geographic coverage; and (4) operating costs. See 800 MHz Report and
, 19 FCC Rcd at 15077 ¶ 201. See also, 47 C.F.R. § 90.699(d).
6 Narrowbanding, as used herein, refers to the modification or replacement of bi-directional amplifiers so that they
amplify only the public safety channels in the 800 MHz band.
7 Massachusetts Order, 26 FCC Rcd 1068 at ¶ 3. As presently configured, the BDAs operate on a “wideband” basis,
i.e., they receive, amplify, and retransmit all 800 MHz band signals.
8 Id. 26 FCC Rcd 1071-72 at ¶¶ 12-15.
9 Massachusetts AFR at 4-7.
10 Id. at 1.
11 Id. at 2.
12 800 MHz Report and Order, 19 FCC Rcd at 15074 ¶ 198; 800 MHz Supplemental Order, 19 FCC Rcd at 25152
¶ 71 (2004) (the Minimum Cost Standard requires that costs associated with rebanding be reasonable, prudent, and
the “minimum necessary to provide facilities comparable to those presently in use.”)
13 47 C.F.R. § 90.674.
14 Massachusetts AFR at 1-2. The reports in question are one provided by the Andrew Corporation – “Interference
Analysis for Central Artery Tunnel Wireless Communications System.” (Andrew Report) and the Commonwealth’s
in-house study –“800 MHz Rebanding -Metropolitan Highway System Tunnel RF Boosters” (White Paper).
Massachusetts Order, 26 FCC Rcd 1070 at ¶ 7.

Federal Communications Commission

FCC 12-104

Massachusetts Order it is clear that the Bureau considered the two reports and agreed that wideband
BDAs could potentially be susceptible to the interference conditions in the tunnels that the reports
predicted would occur. The order, however, concluded (i) that the potential for interference existed
before the Commonwealth’s system was rebanded; and (ii) that rebanding actually reduced the potential
for interference.15 Because the potential for interference pre-dated rebanding of the Commonwealth’s 800
MHz system, the Bureau found that the reports submitted by the Commonwealth, while technically
correct, were irrelevant from an evidentiary standpoint because they were not probative of the question of
whether Sprint was responsible for the cost of narrowbanding the BDAs. We thus find that the Bureau
satisfied its de novo review obligations and that its characterization of the studies as irrelevant is accurate.


The Comparable Facilities Standard

7. The Massachusetts Order points out that BDAs became potentially susceptible to interference
when cellular service was initiated in the tunnels – an event that occurred prior to commencement of FRA
negotiations. Thus, it was the inauguration of cellular service, not rebanding, that rendered the BDAs
potentially susceptible to interference from cellular operations in the tunnels. Therefore, in performing
the comparable facilities calculus, the Bureau first evaluated the status of the BDAs when rebanding
began (when the BDAs were already potentially susceptible to interference); and, second, evaluated the
status of the BDAs at the conclusion of rebanding (when the BDAs - which were not modified during the
rebanding process - were still potentially susceptible to interference). The Bureau’s evaluation showed
that the pre-rebanding and post-rebanding status was identical and, therefore, that the Commonwealth had
received comparable facilities.16


Adherence to Commission Directive

8. The Commonwealth contends that the Bureau failed to follow the legal and policy directives
of the Commission’s rebanding orders concerning interference. Specifically, the Commonwealth argues
that the interference abatement procedures the Commission established in the 800 MHz Report and Order
required Sprint to modify or replace the BDAs once cellular commercial providers began operating in the
tunnel system.17 For the following reasons, we find that the Bureau properly applied the Commission’s
policies and directive.:
9. First, the interference abatement procedures in the 800 MHz Report and Order, codified in
Section 90.674 of the Commission’s rules,18 come into play only when unacceptable interference is
actually encountered. Thus, if Sprint, or another carrier, causes actual unacceptable interference in the
tunnels, that interference must promptly be abated. The Commonwealth, however, has not alleged that
interference has occurred. The reports provided in the record show only that there is a potential for
interference under certain circumstances if the Commonwealth’s BDAs are not narrowbanded.
10. Second, if actual – rather than potential – interference were to occur, the interfering carrier’s
obligation to abate it would arise from Section 90.674 of the rules, not from application of the comparable
facilities standard. Indeed, the obligations imposed by Section 90.674 of the rules survive rebanding and
protect all 800 MHz public safety systems, whether or not they have been rebanded.

15 Id. at 1071-72, ¶¶12, 15.
16 The potential for interference to public safety was actually reduced as a consequence of rebanding, not because
any changes were made to the BDAs, but because Sprint’s operations were relocated to the Enhanced Specialized
Mobile Radio band where they now have less potential for interference because they are spectrally separated from
public safety frequencies.
17 Massachusetts AFR at 4-7.
18 47 C.F.R. § 90.674.

Federal Communications Commission

FCC 12-104

11. In sum, we hold that the Bureau was correct in finding that narrowbanding of the
Commonwealth’s BDAs was not compelled by the comparable facilities standard and that Section 90.674
of the rules did not obligate Sprint to narrowband the Commonwealth’s BDAs.19 Should actual
unacceptable interference occur in the future, Section 90.674 will require the interfering carrier(s)20 to
promptly abate the interference.21



12. Accordingly, IT IS ORDERED that pursuant to Sections 4(i), 5(c), and 303 of the
Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i), 155(c), 303, and Section 1.115 of the
Commission's Rules, 47 C.F.R. § 1.115, the Application for Review, filed March 4, 2011, by the
Commonwealth of Massachusetts IS DENIED.
Marlene H. Dortch

19 In order for the Commonwealth to obtain relief under Section 90.674 of our rules it must first report that its
system is receiving unacceptable interference. 47 C.F.R. §§ 90.674(a)(2)-(3). There is no record evidence of such a
20 To the extent that unacceptable interference results from the combination of signals from multiple licensees,
Section 90.674 of the rules imposes joint and several liability for abating the interference. 47 C.F.R. § 90.674(b).
21 In the 800 MHz Report and Order, the Commission made clear that in abating unacceptable interference, it is the
interfering party that chooses the abatement method. 800 MHz Report and Order, 19 FCC Rcd 14982-83 ¶ 20.
Therefore, unacceptable interference, were it to occur, could be abated by means other than narrowbanding the
Commonwealth’s BDAs.

Note: We are currently transitioning our documents into web compatible formats for easier reading. We have done our best to supply this content to you in a presentable form, but there may be some formatting issues while we improve the technology. The original version of the document is available as a PDF, Word Document, or as plain text.


You are leaving the FCC website

You are about to leave the FCC website and visit a third-party, non-governmental website that the FCC does not maintain or control. The FCC does not endorse any product or service, and is not responsible for, nor can it guarantee the validity or timeliness of the content on the page you are about to visit. Additionally, the privacy policies of this third-party page may differ from those of the FCC.