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800Mhz Rebanding - FCC's Decision on Change Orders
On June 19th, the Federal
Communications Commission issued a Memorandum Opinion and
Order that has severe financial consequences to 800MHz Licensees
as well as to those in the supportive vendor community. In
the matter of the County of Flagler, Florida and Sprint
Nextel Corporation the Commission has found where on-the-fly
changes to a reconfiguration plan, as a result of found conditions
in the field, face the risk of loss of compensation if an
approved change order had not been secured in advance by the
Licensee for the completed work action.
While the action cited in the Flagler instance
is related principally to a third programming touch, TCS found
today where a similar argument and rejection of after-the-fact
change orders was used by Sprint in an unrelated case. In
this most recent issue, a TCS client had the misfortune of
having a radio vendor provide subcontractors who lacked familiarity
with the specific equipment to be retuned. This discovery
occurred while the field retuning of subscriber radios had
already commenced. In the face of what was believed to be
an emergency situation, the Licensee requested that TCS expend
extra efforts in personnel and resources to restore the project
to track. And, in a set of unrelated instances where the contracted
radio vendor had to enlist the resources of added personnel
to accomplish more tasks than anticipated, additional hours
were accrued to the project.
While, in the end, this TCS Client/Licensee
was able to successfully retune their radio system, Sprint
arbitrarily rejected all claims for additional cost recovery
citing the Flagler County decision. In the FCC's Opinion
and Order, Flagler County was found to have violated
the provisions of its FRA by failing to notify
Sprint of its decision to deviate from the FRA.
What is particularly troubling to TCS is that
in other communications with Sprint involving a Client/Licensee,
Sprint raised the bar even further and indicated not only
was it necessary to notify them of any potential changes to
an FRA but that those changes had to be negotiated
and approved by Sprint before any such work
could commence. This action, we believe, exposes
our Clients and other Licensees to the unreasonable burden
of having to identify any and all obstacles to rebanding before
even the first connector or screw is touched. This "Crystal
Ball" approach to Rebanding is onerous in that Sprint
argued tooth and nail against funding comprehensive investigative
tasks in the Planning Process that could have identified many
of the project pitfalls now being stymied for compensatory
funding. |
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In
light of the argumentative, “my way or the highway”
position taken by Sprint in virtually every PFA and FRA negotiation
this Firm has been involved, the Commission’s and Sprint’s
expectation and demand on Licensees is distasteful. As anyone
skilled in this profession understands, once a radio project
implementation commences (particularly one on an existing,
operable public safety radio network) the likelihood for process
changes increase dramatically as unknown conditions are encountered.
The amount of time wasted starting and stopping projects,
as is apparently now necessary, to gain Sprint’s negotiated
approval would fast spiral out of control. Correspondingly,
each work shut down and remobilization is sure to dramatically
raise costs. Yet, that is how the Rebanding Game is to be
played.
TCS, effective now, is recommending that all
vendors and subcontractors providing technical services to
clients impacted by 800MHz Rebanding closely track their expended
time versus FRA-identified tasks. If a work task is not specifically
authorized by FRA or if the allotted time is insufficient
in view of real world realities, then a fully negotiated and
approved change order is necessary to ensure payment for added
services and material provide. Likewise, Licensee clients
must remain vigilant in tracking internal time and expenses
accrued during rebanding. If you see where a category is becoming
close to exhaustion, then the work must stop until a satisfactory,
fully negotiated and approved Sprint
change order has been secured.
Although we have been assured that Sprint
will pay for work completed during an emergency, our experience
suggests this to be merely an empty and unenforceable promise
whereby the Licensee bears all of the risk and Sprint has
the arbitrary ability to deny compensation. Thus, our recommendation
to affected Licensees if an emergency situation is encountered
or anticipated is to immediately shut down the work and retreat
to a previously acceptable level of operations. Neither Sprint
nor the Federal Communications Commission have demonstrated
a consistent and clear willingness to protect Licensees of
public safety radio systems during this intrusive and disruptive
process….so, Licensees must remain ever vigilant and
take aggressive steps to protect themselves.
Sincerely,
Dominic F. Tusa
Partner-Founder
Attachment:
FCC WT Docket 02-55 June 23, 2009 |
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