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    Nextel opposes a petition by Hinds County, Mississippi seeking review of a Bureau order resolving a dispute over a change order request under the parties' frequency reconfiguration agreement. The summary is: 1) Hinds County filed a petition seeking review of a Bureau order more than 15 days after the deadline, making the petition untimely. 2) There is no basis for a different decision on review as the material facts were undisputed and the controlling legal standard is clear. 3) The Commission should reject the petition and direct Hinds County to complete its reconfiguration project, which has been stalled for over a year and a half during the dispute.

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    FCC Nextel opposition

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    Nextel opposes a petition by Hinds County, Mississippi seeking review of a Bureau order resolving a dispute over a change order request under the parties' frequency reconfiguration agreement. The summary is: 1) Hinds County filed a petition seeking review of a Bureau order more than 15 days after the deadline, making the petition untimely. 2) There is no basis for a different decision on review as the material facts were undisputed and the controlling legal standard is clear. 3) The Commission should reject the petition and direct Hinds County to complete its reconfiguration project, which has been stalled for over a year and a half during the dispute.

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    109 views5 pages

    FCC Nextel Opposition

    Uploaded by

    the kingfish
    Nextel opposes a petition by Hinds County, Mississippi seeking review of a Bureau order resolving a dispute over a change order request under the parties' frequency reconfiguration agreement. The summary is: 1) Hinds County filed a petition seeking review of a Bureau order more than 15 days after the deadline, making the petition untimely. 2) There is no basis for a different decision on review as the material facts were undisputed and the controlling legal standard is clear. 3) The Commission should reject the petition and direct Hinds County to complete its reconfiguration project, which has been stalled for over a year and a half during the dispute.

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    of 5

    Before the

    FEDERAL COMMUNICATIONS COMMISSION


    Washington, D.C. 20554

    In the Matter of )
    )
    )
    Sprint Nextel )
    2001 Edmund Halley Drive )
    Reston, VA 20191 )
    )
    and )
    ) WT Docket No. 02-55
    County of Hinds, Mississippi ) Mediation No. TAM-50047
    c/o Precious T. Martin, Sr. )
    Precious Martin, Sr. & Associates, PLLC )
    P.O. Box 373 )
    Jackson, MS 39205 )
    )
    Call Signs )
    WPTW613, WPUC336 and WQDR518 )

    Attention: Marlene H. Dortch, Secretary

    OPPOSITION TO PETITION FOR DE NOVO REVIEW

    Nextel Communications, Inc. (Nextel), a wholly owned subsidiary of Sprint Nextel

    Corporation, hereby opposes the Petition for De Novo Review ("Petition") submitted by Hinds

    County, Mississippi ("Hinds" or "the County") in the above-referenced matter.! For the reasons

    set forth below, the Commission should dismiss the County's request for review.

    I. INTRODUCTION

    This matter was referred to the Public Safety and Homeland Security Bureau ("the

    Bureau") for review by a Recommended Resolution following mediation between Hinds and

    ! Petition for De Novo Review of Hinds County, Mississippi, WT Docket No. 02-55 (Sep. 17,
    2010) ("Petition").

    DeOl! 2570504.2
    Nextel concerning a change order request (the "Change Notice") submitted under the terms of

    the Frequency Reconfiguration Agreement ("FRA") governing the reconfiguration of Hinds'

    800 MHz system. The underlying facts were never in dispute, and the Commission's orders

    concerning the change notice process plainly controlled the outcome of the mediation. 2

    Nevertheless, Hinds directed its vendor, Motorola to stop work on the County's reconfiguration

    project pending the resolution ofthis dispute. On August 23, 2010, the Bureau issued a

    Memorandum Opinion and Order resolving the issues presented for review. 3 On September 7,

    2010, the Transition Administrator's (TA's) Mediator issued an order closing the mediation and

    instructing the County to complete its reconfiguration. On September 17,2010, Hinds filed its

    Petition seeking de novo review of the Bureau's Hinds Order. 4

    II. THE PETITION IS UNTIMELY AND SHOULD BE DISMISSED.

    Hinds requests de novo review of the Hinds Order pursuant to Section 90.677(d)(l) of the

    Commission's rules. s Under that Section, a party wishing to appeal a Bureau decision may file a

    2 The County's change notice sought recovery of costs that were plainly foreseeable. The
    Commission has established that change notices are appropriate to allow licensees to recover
    costs that are the result of "unanticipated changes in cost, scope, or schedule that occur during
    implementation or in the case of an emergency," but "that it is not reasonable for licensees to use
    the change notice process to attempt to re-negotiate their agreements after the fact based on
    issues that should have been or actually were raised earlier." Improving Public Safety
    Communications in the 800 MHz Band, Fourth Memorandum Opinion and Order, 23 FCC Rcd
    18513, ~ 31 (2008).

    3County of Hinds, Mississippi and Sprint Nextel Corporation, Memorandum Opinion and
    Order, WT Docket No. 02-55, DA 10-1589 (reI. Aug. 23,2010) ("Hinds Order").

    4Neither Nextel nor its counsel were served with a copy ofthe Petition and, as a result, Nextel
    only became aware of the Petition after it appeared in the Commission's Electronic Comment
    Filing System on September 23,2010.

    S Petition at 1, citing 47 C.F.R. § 90.677(d)(l).

    -2-
    DeOl! 2570504.2
    petition for de novo review within ten days of the effective date of the decision, whereupon the

    matter will be set for an evidentiary hearing before an Administrative Law Judge. 6

    As described above, the Hinds Order was released on August 23,2010, and was effective

    upon release. 7 Pursuant to Commission's rules, then, a petition for de novo review should have

    been submitted no later than September 2,2010. Hinds submitted the Petition on September 17,

    15 days after it was due. The Petition was therefore not timely filed, and Hinds has apparently

    not submitted any associated request for waiver of the Commission's rules in this regard. The

    Commission should dismiss the Petition as untimely, and reject the request to set this matter for

    hearing, for this reason alone.

    Moreover, as the period for filing an application for review of the Hinds Order by the full

    Commission has also expired, 8 Hinds has no remaining avenue for review or appeal of the Hinds

    Order. Further, as a practical matter, because the material facts in this matter were never

    seriously in dispute, and because the controlling legal standard is plain and not subject to dispute,

    there is no basis for a different decision on review. At this point, the County's reconfiguration

    project has been stalled for more than a year and a half while the County pursued a change notice

    that is unequivocally barred by the Commission's orders. The Commission should reject the

    Petition and direct Hinds to allow the completion of the reconfiguration of the County's system.

    647 C.F.R. § 90.677(d)(1).

    7 47 C.F.R. § 1.102(b)(l).

    8Pursuant to Section 1.115(d), applications for review must be filed within 30 days. 47 C.F.R. §
    1.115(d). An application for review of the Hinds Order was thus due by September 22, 2010.
    Further, applications for review must state the questions presented for review as well as specify
    with particularity the factors which warrant Commission review. 47 C.F.R. § 1.115(a) - (b).
    Thus, the Petition is defective even if it were to be treated as an application for review.

    -3-
    DCO II 2570504.2
    III. CONCLUSION

    For the foregoing reasons, the Commission should dismiss the Petition and reject the

    request to set an evidentiary hearing for de novo review of the Hinds Order.

    The undersigned attests that the statements and representations made in this Opposition

    are true and accurate to the best of his or her knowledge.

    NEXTEL COMMUNICATIONS, INC.

    By:
    ~-

    September 27,2010

    -4-
    DeOI! 2570504.2
    CERTIFICATE OF SERVICE

    I hereby certify that on this 27th day of September, 2010, a true copy of the foregoing
    Opposition was served electronically upon:

    [email protected]

    And by via first class, postage paid United States Mail upon:

    Precious T. Martin, Sr.


    Precious Martin, Sr. & Associates, PLLC
    P.O. Box 373
    Jackson, Mississippi 39205-0370

    Laura H. Phillips
    Patrick R. McFadden
    Drinker Biddle & Reath LLP
    1500 K Street, N.W. Suite 1100
    Washington, DC 20005-1209
    [email protected]
    [email protected]
    202-842-8800
    202-842-8465/66 (fax)

    DeOl! 2570504.2

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