Practicing Safe Rebanding

1
Practicing Safe Rebanding

• Alan S. Tilles, Esquire
• Shulman, Rogers, Gandal, Pordy Ecker, P.A.
• 11921 Rockville Pike, Third Floor
• Rockville, Maryland 20852
• 301-231-0930
• www.shulmanrogers.com
• www.800mhzrebanding.com
• Incorporating Portions Of Glen Nashs
  Presentation
• June 15, 2005

2
Who Are We?

• Full Service Law Firm In Rockville, Maryland
• FCC Representation
• Counsel To Frequency Coordinators, Public Safety
  And Private Radio Licensees And SMR Operators
  Since 1984
• Also Counsel To The City Of Denver, PCIA, ARINC,
  Large Small SMRs, Public Safety Agencies And
  Private Internal Users (Intel, Ford, United
  Airlines, Northwest Airlines) In The 800 MHz
  Proceeding
• Negotiated The Document Which Became The
  Consensus Plan
• Counsel To NENA
• License Swap Negotiations
• Negotiated Over 100 Re-Tune And Acquisition
  Agreements (Valued At Over 500 Million) With
  Nextel On Behalf Of Incumbent Licensees
• Advanced Frequency Search Capability
• Can We Find A Channel For You?
• Experienced Licensing Preparation Personnel
• Auction Assistance
• Wi-Fi/WLAN And Tower Negotiations

3
What Happens To Me?

• ALL Non-Border Licensees At 851.0125 853.9875
  MHz
• Move To 854.0125 - 861.9875 MHz
• NPSPAC Licensees (866-869 MHz)
• Move To 851.0125 853.9875 MHz
• Drop Current Frequency 15 MHz
• All Non-Border Licensees At 854.0125 860.9875
  MHz
• You Stay Where You Are
• Unless You Are A Public Safety Licensee At
  860.0125 (857.5125 In SouthenLinc Markets)
  860.9875 MHz And You WANT To Move Lower

4
The Process

• TA Notifies A Licensee That Its System Needs To
  Be Relocated
• TA Specifies A Replacement Channel For Each
  Non-NPSPAC Channel That Needs To Be Changed
• All Incumbents Are Entitled To Comparable
  Facilities, But Are Not Entitled To Their Choice
  Of Channels
• If Frequency Is Not Useable For Any Reason,
  Licensee Negotiates With Nextel For A
  Replacement, Which TA Must Then Approve
• Nextel Licensee Negotiate Reband Agreement
  Directly With Each Other, With TA Participating
  If Mediation Necessary
• TA "The Use Of The TA As A Conduit Should Not
  Be Considered A Substitute For Legal Or Other
  Expert Subject Matter Representation In
  Negotiations"

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The Process (Cont.)

• FCC Applications Prepared By Whomever You Choose
• No Frequency Coordination Required For
  Applications
• FCC Will Not Require Approval Of, Or Consider
  Objections From, NPSPAC Regional Planning
  Committees With Regard To NPSPAC Relocations
• FCC Grants Application(s) (Hopefully
  Expeditiously)
• Re-Banding Work Performed
• Whenever A Payment Event Is Reached (Beginning,
  Middle And/Or End), Licensee Requests Payment
  From TA, Who Certifies And Forwards To Nextel For
  Payment
• When Work Completed, TA Audits Expenses
• True-Up Of Expenditures, Only Actual Costs Are
  Paid

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Recoverable Costs From TA Handbook

• Inventory
• Evaluating Proposed Non-NPSPAC Frequencies
• Defining Operating Environment (Interop.
  Agreements, etc.)
• Equipment Costs
• Retuning, Reprogramming And Replacement (Where
  Necessary)
• Preparation And Filing Of FCC Applications
• Installation, Testing And Engineering
• Legal Fees
• Preparing Cost Estimate And SOW (If Necessary)
• Activities Of Licensee In-House Personnel
  Performing Reconfiguration Work
• Licensee (And Vendor) Expenses Related To TA
  Mediation

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Recoverable Costs Acceptance Testing

• Scope, Level Of Effort And Cost Of Acceptance
  Testing Must Be Included In Cost Estimate
• TA Acceptance Testing "Should Be Performed
  Immediately Before Retuning And Again During
  Acceptance Testing In Order To Provide A
  Meaningful Comparison"
• TA Simple Mic Test May Not Provide Objective
  Basis For Comparing Before And After Coverage
• TA - "A Formal Test Using A Well-Documented Route
  And An Automated Signal Measurement And Data
  Collection Procedure May Be The Only Objective
  Way To Compare Coverage
• SRPGE Working With Industry Engineers To Develop
  Standardized Baseline Testing Methodology

8
Non-Recoverable Costs From The TA Handbook

• Inventorying Systems And Equipment That Are Not
  Directly Affected By 800 MHz Reconfiguration
• Consulting Or Legal Fees Not Related To 800 MHz
  Reconfiguration
• Vendor Charges Associated With Responding To
  Proposals Or Providing Bids And Quotes
• Overtime Incurred By Licensee Personnel If The
  Licensee Does Not Pay Its Employees Overtime
• Costs Which Were Not Incurred Or Are Not
  Sufficiently Supported By Required Documentation
• TA "Costs Incurred In Utilizing Non-Qualified
  Personnel, Or Costs Associated With Correcting
  Substandard Work Performed By Non-Qualified
  Personnel"
• TA "Licensee's Responsibility To Ascertain That
  The Personnel And Vendors They Utilize For
  Reconfiguration Are Qualified And Competent"
• TA "The TA Or Nextel Will Not Attempt To
  Qualify, Certify, Or Otherwise Determine What
  Qualifies A Qualified Resource"

9
Documentation Of Costs

• Internal Personnel
• Hours And Costs Should Be Supported By
  Timesheets, Payroll Records Or Similar Documents
• TA "To Determine The Hourly Rate Of A Salaried
  Employee, Divide The Employee's Salary By 2,080
  Hours
• Do The Math, This Is Not Your Cost To You Of Your
  Employee!
• External Vendors
• Only Reimbursed For Actual Costs Incurred
• Support By Invoices And Licensee Acknowledgement
  Of Receipt Of Goods And Services
• When Using Outside Vendors, Licensee Should
  Consider
• Obtaining Multiple Quotes
• Validating That Proposed Prices Are Consistent
  With Prices That The Licensee Has Paid To The
  Vendor For Comparable Past Work

10
Cost Overruns From TA Handbook

• TA "If, During Your Reconfiguration, You
  Determine That The Cost Estimate That You
  Submitted Is Inaccurate You Should Re-Estimate
  Your Costs And Submit A Revised Cost Estimate To
  Nextel"
• TA "Licensees Must Amend Their Contract With
  Nextel Before Incurring New Or Additional
  Expenses Beyond The Cost Estimate
• What Happens If The TA Delays In Approving The
  Changes?

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Pre-Negotiation Period

• Conduct A Complete Inventory
• Evaluate Acceptable Outage Period
• Evaluate Timing Issues
• Evaluate Workload
• Technical Staff
• Administrative Personnel
• Management

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Conducting Inventories

• Inventory Repeater Make And Model, Combiners,
  Antennae, Duplexers, Consoles, Management Systems
  And Centralized Facilities That Are Frequency
  Specific
• TA "In General, The Inventory Should Be
  Accurate To Within 5 Of Units"
• Don't Forget Mobile Data, Fixed Data, BDAs,
  SCADA, Traffic Light Control, Mobile Data
  Systems, Fire Alarm Enunciator Devices
• TA "Collecting Serial Number-Level Detail Will
  Not Be An Allowable Expense Unless A Valid Reason
  Exists To Collect This Information"
• Example "Additional Device Information Such As
  Serial Number Or Software Revision Level May Be
  Required To Determine The Appropriate Retuning
  Method
• But, What About The Need To Track Which Units
  Have Been Retuned, And Which Ones Havent?

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The Inventory

• Where Is It?
• Building Locations
• Vehicle Numbers And/Or License Numbers
• Names Of People
• Who Might Have Radios?
• Operational Personnel
• Allied Agencies
• Elected And Appointed Officials
• Media
• Emergency Caches And Spares
• Maintenance Equipment

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Upgrades During Reconfiguration

• TA Discourages, But Plans Will Be Reviewed On An
  Individual Basis, Subject To The Following
  Considerations
• Upgrades Do Not Lengthen Schedule
• Licensee Responsible For Additional Costs
• Additional Costs Must Already Be Approved
• Licensees Must Demonstrate That Vendors Have
  Committed To Schedule
• TA "Licensees That Upgrade Either
  Frequency-Dependent Infrastructure Or End-User
  Devices Must Certify That The Upgraded Facilities
  Will Be Comparable"

15
Workload

• Technical Staff
• Do You Want In-House Staff To Do The Work Or Do
  You Want Outside Contractors To Do It?
• If In-House, Then Need To Estimate How Much
  Effort Is Involved
• If Contractors, Then Need To Estimate Your Own
  Support Of Them
• Site Access
• Quality Review

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Workload

• Administrative Personnel
• Property Managers
• Clerical Staff To Maintain Re-Banding Records
• Effort Required To Update Site Records
• Effort Required To Update FCC Licenses
• Legal Staff And Procurement Personnel To Conduct
  Negotiations And Review Contracts
• Management

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Negotiating The Contract

• Establish Cost For Doing All Of The Work
• Include Your Agency Preparation Efforts
• Include Your Agency Participation During
  Conversion
• Include Close-Out
• Establish Who Is Going To Do What
• Establish When Work Is To Be Accomplished
• Establish Where Work Is To Be Performed

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During the Conversion

• Keep Records Of Work Completed
• Compare What Was Converted Against Your
  Inventory
• Ensure ALL Of The Radios Were Converted
• Determine If More Radios Were Converted
• Must Amend The Contract For Additional
  Reimbursement

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Expect

• You Will Miss Radios During The Inventory
• You Will Miss Radios During The Conversion
• Those Radios WILL AppearPerhaps Weeks Later
• The Transition Administrator Will Want To Audit
  Your Expenses
• If You Kept Records, This Should Be Easy

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Check Your Licenses!

• Errors On Contact Information, Transmitter Site
  Coordinates, Etc. Are The Norm On Private Radio
  Licenses
• Are Your Coordinates In The Ocean?
• NOW Is The Time To Fix These Issues, NOT When You
  Begin Negotiations
• Youre Only Entitled To Get What Youve Got, Make
  Sure Your Licenses Reflect What Youve Got
• TA Says License Clean-Up Is Not A Recoverable
  Expense

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Dont Believe Rumors!

• At This Time, There Is No Definitive List Of
  Equipment, From ANY Vendor, That Nextel And The
  TA Agree Must Be Replaced
• Other Rumors
• Educational Efforts Are Not Recoverable
• Licensees MUST Accept Used Radios From Nextel As
  Permanent Replacements
• These Are Items For Negotiation, And Every Deal
  Will Be Different

22
Dont Go It Alone

• Keep Counsel Participating In Every Telephone
  Call And Meeting, And Have Them Pre-Review Every
  Document (Particularly SOWs), Even If You Think
  Thats Its A Minor Issue
• Prevents Information Being Transmitted That Is
  Wrong, Improperly Phrased, Etc. That Can Lead To
  Non-Complete Recovery Of Costs
• Know Whom Represents Whom
• Nextel Has Retained Outside People To Help Them
  Negotiate, But They Represent Nextel, NOT You!
• Boiler Plate Contracts Rob You Of What Your
  Entitled To
• Every Deal Is Different, Because Each System Is
  Unique, What One Licensee Is Entitled To Is
  Different Than What Youre Entitled To
• Dont Be Stuck With Someone Elses Sloppy
  Negotiation

23
Can You Avoid The RFP For Vendors

• Strive For The Sole Source Contract
• Extension Of Existing Contract With Radio Vendor?
• Since There Are No Costs To You, Do You Need To
  Do An RFP?
• Do You Have Time To Do An RFP?
• How Do You Choose?
• Best Price Or Best Value?
• Fixing Shoddy Work By Non-Qualified Vendors Is
  Not A Recoverable Cost

24
Joint Negotiations

• Closely Tied Agencies May Wish To Consider Joint
  Negotiations
• Joint Negotiations Minimize The Need For Multiple
  Layers Of Interagency Coordination
• Eliminates He Said, She Said
• Enables Smoothest Transition Possible

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Joint Negotiation Format

• Agencies Need Not Give Up Their Autonomy
• No Need For Formal Relationship Amongst Agencies
• Allow The Professionals You Retain To Be The
  Conduit For Coordination
• Retention Of The Same Negotiation Team By Each
  Agency Reduces Costs, Creates Format For Easier
  Negotiations
• Where Multiple Vendor Formats Exist, There May Be
  A Need For More Than One Radio Consultant

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Timing

• Nextel Is Aggressively Negotiating With GC
  Licensees And Wants NPSPAC Licensees To Be Ready
  To Negotiate Next
• Does Your Agency Need To Go Through A Bid Process
  To Retain Outside Consultants?
• Lack Of Payments By Agencies To Vendors May
  Negate The Need To Bid
• Do You Have A Complicated Or Time Consuming
  Process To Retain Vendors?
• YOU NEED TO ACT NOW!

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List Of Relevant URLs

• FCC Web Site
• http//wireless.fcc.gov/publicsafety/800MHz/bandre
  configuration/index2.html
• Shulman Rogers 800 MHz Web Site
• http//www.800mhzrebanding.com
• Weve Filled This Free Site With Every Document,
  Filing, Form, FAQ And Piece Of Information
  Possible
• Transition Administration Web Site
• http//www.800ta.org/index.htm
• APCO Web Site
• http//www.apcointl.org/frequency/800hp.htm

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THANK YOU!

• Alan S. Tilles, Esquire
• Shulman, Rogers, Gandal, Pordy Ecker, P.A.
• 11921 Rockville Pike, Third Floor
• Rockville, Maryland 20852
• atilles_at_srgpe.com
• www.shulmanrogers.com
• Much More Information Is Available At
• www.800MHzRebanding.com
• Please See Me For Thursday Individual Meetings