FCC Record, Volume 26, No. 7, Pages 4843 to 5761, March 28 - April 08, 2011 Page: 5,072
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19. This is not the first time Indiana has accused the TA Mediator of bias. In its Statement of
Position, Indiana charged the TA mediator with demonstratingn] . . . a reckless bias toward Nextel's
position."39"" We find no evidence of such bias. The TA Mediator's "reversal of position" when he
became aware that licensing services were available at almost half the cost quoted by EMR is consistent
with the Commission's directive that "the TA should not approve payment of higher costs when a lower-
cost alternative is clearly available that would provide the licensee with comparable facilities."'4
B. Indiana's Obligation to Ensure that Radios Were Replaced at the Minimum
20. The Indiana Order found that the State had not conformed to the minimum necessary
cost standard when it allowed replacement radios to be deployed with only the pre-reconfiguration
NPSPAC channels programmed into them. This gave rise to the need to retrieve the radios from the field
to give them a "first touch" to add the post-reconfiguration frequencies at a cost of over $164,000. 4
21. The Indiana Order found that Indiana knew, at least four months before the radios were
deployed, of the need to program the radios with both sets of frequencies.42 That fact alone -
foreseeability of the need to provide the radios with both sets of frequencies installed - barred Indiana
from filing a change notice request for a first touch to the radios. Change notices are appropriate only for
"unanticipated changes in cost, scope, or schedule which occur during implementation or in the case of an
emergency.43" Moreover, a licensee may not use the change notice process to recover costs that were
reasonably foreseeable during planning or FRA negotiations but were not raised in negotiations, or were
considered and rejected."44
22. The Indiana Order found that "it was foreseeable at the time [the radios were deployed]
that the 1,073 radios would later have to be retrieved from their users and reprogrammed to add the post-
rebanding frequencies at a cost of $164,907.13."45 Accordingly, the Bureau disallowed the change order
23. In its Petition, Indiana claims "foreseeability is not the issue" and concedes that "the
State did foresee the problem."7 It argues, however, that although it did foresee the problem, it "did not
39 Indiana Statement of Position at 11.
4O Improving Public Safety Communications in the 800 MHz Band, Memorandum Opinion and Order, 22 FCC Red
9818, 9821 (2007).
4' Indiana Order 26 FCC Red at 1031 29.
42 Id. at 1029-30 24.
43 See FCC Announces Supplemental Procedures and Provides Guidance for Completion of 800 MHz Rebanding,
Public Notice, 22 FCC Red 17227, 17229 (2007).
44 Id. The Commission subsequently clarified 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 emergency," but "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
18512, 18522 31 (2008).
4. Indiana Order 26 FCC Rcd at 1030-31 27.
46 Id. at 1031 29.
7 Petition at 15.
Federal Communications Commission
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United States. Federal Communications Commission. FCC Record, Volume 26, No. 7, Pages 4843 to 5761, March 28 - April 08, 2011, book, April 2011; Washington D.C.. (digital.library.unt.edu/ark:/67531/metadc52169/m1/244/: accessed March 25, 2017), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.