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Denies review of dispute over furnishing of comparable facilities

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Released: September 21, 2012

Federal Communications Commission

FCC 12- 103

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of
Liberty Communications, Inc.
)
)

PS Docket No. 02-55
and
)
)

Mediation No. TAM-50034
Sprint Nextel Corp.
)
)

MEMORANDUM OPINION AND ORDER

Adopted: September 7, 2012 Released: September 21, 2012

By the Commission:
1. On July 30, 2010, Liberty Communications, Inc. (Liberty) filed an Application for Review of
a July 16, 2010 Memorandum Opinion and Order issued by the Commission’s Public Safety and
Homeland Security Bureau.1 For the reasons set out below, we deny the Application for Review.

I.

BACKGROUND

2. The Bureau Liberty Order resolved a dispute between Liberty and Sprint Nextel Corporation
(Sprint) concerning the rebanding of Liberty’s 800 MHz Specialized Mobile Radio (SMR) system.
Central to the dispute was whether Liberty had received “comparable facilities”2 post-rebanding, an issue
which was resolved in Sprint’s favor. In its Application for Review, Liberty contests only one aspect of
the Bureau Liberty Order, i.e., the Bureau’s determination that certain channels that Liberty received,
post-rebanding, are comparable to its pre-rebanding channels.
3. Specifically, prior to rebanding, only one of Liberty’s channels was separated by less than
100 kHz from other channels in Liberty’s system whereas, after rebanding, there are three pairs of
channels that are separated by 25 kHz, two pairs of channels separated by 50 kHz and one pair of
channels separated by 75 kHz.3 Liberty contends that “basic generally accepted engineering principles”
recommend “at least 100 kHz between adjacent receive channels on the same receive system.”4 Because
certain of its post-rebanding channels lack this 100 kHz minimum spacing, Liberty claims it faces


1 Liberty Communications Inc. and Sprint Nextel Corp., Memorandum Opinion and Order, 25 FCC Rcd 9197
(PSHSB 2010)(Bureau Liberty Order). Sprint Nextel Corp. filed an Opposition to Application for Review on
August 16, 2010 (Sprint Opposition). Liberty filed a Reply to Opposition to Application for Review on August 30,
2010 (Liberty Reply).
2 The Commission has defined comparable facilities as those that 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.”
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, 15077 ¶ 201 (2004) (800 MHz Report and
Order
).
3 Bureau Liberty Order 25 FCC Rcd at 9205 ¶ 24.
4 Application for Review at 3.

Federal Communications Commission

FCC 12-103

“difficulties . . . characterized by pervasive, actual and unavoidable interference.”5 Therefore, Liberty
asserts that its post-rebanding channels are not comparable to its pre-rebanding channels,6 and contends
that Sprint should be responsible for obtaining new channels for Liberty’s system or for replacing
Liberty’s network equipment. In a single sentence in its Application for Review, Liberty requests that the
Commission stay the effectiveness of the Bureau Liberty Order pursuant to section 1.102(b)(3) of the
Commission’s rules.7
4. The Bureau Liberty Order held that the Commission’s rules do not protect licensees from
interference originating from signals on adjacent channels. Thus, in its 2005 rebanding Memorandum
Opinion and Order
the Commission explicitly stated that “[a]s with the rules for applications for new
licenses, the TA [Transition Administrator] need not consider adjacent channel stations when specifying a
replacement channel.”8 The Bureau Liberty Order observed that, even if Liberty were afforded its
preferred channel spacing, its system still could be susceptible to interference from the portable and
mobile units of other licensees.9 In response to Liberty’s claim that its post-rebanding channel
configuration was not comparable to its pre-rebanding channel configuration, the Bureau cited the
Commission’s statement that “[o]ur rules do not . . . mandate identical channel configuration” for
rebanding licensees.10

II.

DISCUSSION

5. Under Section 1.115(b)(2) of the Commission's rules, a party filing an Application for
Review must demonstrate one of the following:
that the action taken pursuant to delegated authority is in conflict with
statute, regulation, case precedent, or established Commission policy;
that the action involves a question of law or policy which has not
previously been resolved by the Commission; that the action involves
application of a precedent or policy which should be overturned or
revised; an erroneous finding as to an important or material question of
fact; or prejudicial procedural error.11
In its Application for Review, Liberty asserts that the Bureau has made an erroneous finding of fact in
concluding that Liberty’s post-reconfiguration channels give Liberty “comparable facilities.”12
6.
The Commission has defined comparable facilities for purposes of 800 MHz rebanding in
terms of (1) equivalent channel capacity; (2) equivalent signaling capability, baud rate and access time;
(3) coextensive geographic coverage; and (4) operating costs.13 Liberty claims that, with its post-


5 Id.
6 Id.
7 Id. at 2.
8 Bureau Liberty Order at 9205 ¶ 25 n.83 citing Improving Public Safety Communications in the 800 MHz Band,
Memorandum Opinion and Order, 20 FCC Rcd 16015, 16033 ¶ 40 n.85 (2005)(800 MHz Memorandum Opinion
and Order
); See also 47 C.F.R. § 90.621(b).
9 Bureau Liberty Order at 9205 ¶ 25. Liberty alleges that it is receiving interference from its own customers’ use of
mobile and portable units on nearby channels. Liberty Reply at 2.
10 Bureau Liberty Order at 9205 citing Upper 200 SMR Second Report and Order, 12 FCC Rcd 19079, 19112-13
¶ 2 (1997).
11 47 C.F.R. § 1.113(b)(2).
12 Application for Review at 1.
13 800 MHz Report and Order, 19 FCC Rcd at 15077 ¶ 201.
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FCC 12-103

rebanding frequencies, its “system will no longer trunk properly” and therefore has “inferior channel
capacity, inferior signaling capability, baud rate and access time, inferior geographic coverage and higher
operating costs.”14
7. Nothing in Liberty’s Application for Review leads us to conclude that the Bureau erred as to
an important or material question of fact regarding Liberty’s channel assignments. Liberty claims that it
has not received comparable facilities because its system is “fundamentally incapable of supporting viable
operations.”15 Specifically, Liberty asserts that it experiences adjacent channel interference within
Liberty’s own system because some of its replacement channels are spaced by less than 100 kHz.16 We
find that the Bureau Liberty Order properly rejected these claims. In the 800 MHz Memorandum Opinion
and Order
, the Commission, elaborating on the contours of the “comparable facilities” standard
established in the 800 MHz Report and Order that is applicable here, expressly held that the TA need not
take channel adjacency into account when assigning replacement channels.17 As indicated in the Bureau
Liberty Order,
the Commission’s rules provide licensees no protection against adjacent channel
interference, whether originating from its own or from another licensee’s channels.18 Thus, as the Bureau
Liberty Order
properly concluded, Liberty’s claims of interference are immaterial to whether it has
received comparable facilities.19
8. Liberty also claims that the Bureau Liberty Order is “fatally flawed” because its discussion
focuses on adjacent channel interference originating from other licensees, rather than Liberty, and
because it found that Liberty failed to show any actual, rather than potential, interference.20 These claims
are not only immaterial for the reasons already given, but also inaccurate. As indicated above, the Bureau
Liberty Order
correctly held that Liberty had been provided “comparable facilities,” rejecting Liberty’s
claims relating to adjacent channel interference. The fact that the Bureau Liberty Order discussed
Liberty’s complaints of interference does not render them material to the Order ‘s conclusion that Liberty
has been provided with “comparable facilities.” On the contrary, the Commission’s decisions make it
clear that adjacent channel interference is immaterial to the “comparable facilities” calculus. The Order
correctly makes no distinction whether such interference originates from a licensee’s or another entity’s
adjacent channel or whether the alleged interference is actual or potential. Thus, the Order is not at all
flawed, much less “fatally” so; the Bureau was merely disposing of Liberty’s claim. Nor was the Order
erroneous in stating that Liberty failed to support its claims of actual, rather than merely potential,
interference.21


14 Application for Review at 3-4.
15 Application for Review at 3.
16 Application for Review at 3-4.
17 Bureau Liberty Order 25 FCC Rcd at 9205-9206 ¶ 25, citing 800 MHz Memorandum Opinion and Order, 20 FCC
Rcd at 16033 n.85 (“[a]s with the rules for applications for new licenses, the TA need not consider adjacent channel
stations when specifying a replacement channel”). See also 47 C.F.R. § 90.621(b).
18 Id.
19 Id. at ¶¶ 25-28.
20 Application for Review at 3-4.
21 Bureau Liberty Order, 25 FCC Rcd at 9205-06 ¶ 26. Although Liberty claimed that the Bird Technologies report,
supra, documented the existence of the interference that Liberty claims render its post-rebanding frequencies non-
comparable, the Bureau’s examination of that report revealed that it “contains no instance of actual adjacent channel
interference” to Liberty’s system.. The exhibit Liberty provided with its Application for Review also fails to do so; it
shows only that some of Liberty’s replacement channels are spaced by less than 100 kHz – a fact not disputed in the
Bureau Liberty Order. Moreover, nothing in the report or elsewhere in the record supports Liberty’s claim that its
system does not “trunk properly” or is deficient in the other respects that Liberty claims. On March 31, 2011,
(continued….)
3

Federal Communications Commission

FCC 12-103

9.
In claiming that Sprint should pay for new network equipment for Liberty’s system, Liberty
cites the Commission’s 800 MHz Second Report and Order,22 in which the Commission required Sprint to
compensate Canada border licensees that had to install more efficient transmitter combiners in order to
accommodate decreased frequency separation. We find Liberty’s reliance on the 800 MHz Second Report
and Order’s
provisions respecting transmitter combiners unavailing and reject its claim. Absent more
efficient transmitter combiners, some Canada border licensees affected by the 800 MHz Second Report
and Order
would have encountered excessive combiner loss with close-spaced frequencies. The excess
combiner loss would have caused a reduction in effective radiated power, hence depriving those licensees
of “coextensive geographic coverage” – an element of “comparable facilities.”23 Liberty, however, has
encountered no reduction in effective radiated power on its post-reconfiguration frequencies. Unlike the
Canada border licensees, Liberty’s post-reconfiguration effective radiated power is unaffected and its
geographical coverage is thus coextensive with its pre-reconfiguration coverage. Accordingly, to the
extent that Liberty believes that it will encounter adjacent channel interference in its system, it may
implement the changes it believes necessary to abate that interference. The cost of such changes to
Liberty’s existing interference-susceptible equipment, however, is not Sprint’s responsibility because the
Commission’s rules do not protect licensees against adjacent channel interference. As the Bureau Liberty
Order
properly found, “[r]equiring Sprint to pay for providing Liberty with a more interference resistant
system post-reconfiguration would be an undeserved ‘upgrade,’ i.e., it would not be consistent with the
policy that licensees must reband at the minimum reasonable cost.”24
10. We dismiss Liberty’s request for a stay of the Bureau Order as improperly filed. As noted
above, Liberty requests a stay in a single sentence in its Application for Review. Section 1.44(e) of the
Commission’s rules25 provides that stay requests must be filed as a separate pleading, and any request not
filed as a separate pleading will not be considered by the Commission. In addition, Liberty makes no
(Continued from previous page)


several months after close of the pleading cycle for Liberty’s Application for Review, Bird Technologies filed a
letter in this docket purporting to clarify that during its field investigation of Liberty’s 800 MHz SMR system in
Northern Florida, Bird detected actual interference into Liberty’s operations as a result of close spacing of five of the
rebanded channels, and that this interference was sufficient to preclude the effective operation of Liberty’s system.
Letter to Marlene H. Dortch, Secretary, FCC from Donald E. Huston, Motorola Strategic Account Manager, Bird
Technologies Group (received March 31, 2011)(Bird Letter). Bird further asserts that these findings are discussed in
its September 12, 2008 report (Bird Report) which was included in the record. The Bird Report alludes to a Liberty
document discussing “[m]iscellaneous other intermittent and random problems” from April 1, 2007 through August
31, 2007. That Liberty document, however, is not in the record. The Bird Report itself discusses only potential
interference based on the characteristics of Liberty’s system. Thus, the Bureau Liberty Order accurately stated that
the Bird Report only discusses potential interference and contains no instance of actual adjacent channel
interference. See Bureau Liberty Order, 25 FCC Rcd 9197, 9205 ¶ 26. We reject the Bird Letter because, even
assuming it is responsive to matters raised in an opposition to the Application for Review, it is untimely, having
been filed seven months after the record closed on August 26, 2010 for Liberty’s Application for Review and more
than two years after the record closed on December 3, 2008 for the Bureau Liberty Order. See 47 C.F.R. § 1.115(d);
see also Colorado Radio Corp. v. FCC, 118 F.2d 24, 26 (D.C.Cir. 1941)(“We cannot allow a party to ‘sit back’ and
hope that a decision will be in its favor, and when it isn’t, to parry with an offer of more evidence”). As an
alternative and independent basis for rejecting the Bird Letter, we conclude that Bird’s assertions, even if they had
been accurate, are immaterial to the Bureau’s conclusion that Liberty is entitled to no relief from Sprint as a result of
any adjacent channel interference, as indicated above.
22 Improving Public Safety Communications in the 800 MHz Band - Plan for U.S. Canada Border Regions, Second
Report and Order
, 23 FCC Rcd 7605, 7614 ¶ 19 (PSHSB 2008).
23 800 MHz Report and Order, 19 FCC Rcd at 15077 ¶201.
24 Bureau Liberty Order, 25 FCC Rcd 9197, 9205 ¶ 27.
25 47 C.F.R. § 1.44(e).
4

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FCC 12-103

attempt to show why it should be granted a stay.26 In any event, because Liberty’s request covers only the
period while its Application for Review was pending, it is now moot.

III.

ORDERING CLAUSE

11. Accordingly, IT IS ORDERED 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 Sections 1.44(e) and
1.115 of the Commission’s rules, 47 C.F.R. §§ 1.44(e), 1.115, that the Application for Review, filed July
30, 2010 by Liberty Communications, Inc., IS DENIED and its request for a stay is DISMISSED.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary


26 See, e.g., 47 C.F.R. § 1.3 (Commission may suspend its rules for “good cause shown”).
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