FCC Record, Volume 27, No. 3, Pages 1878 to 2785, February 21 - March 16, 2012 Page: 1,891
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the Public Safety and Homeland Security Bureau (Bureau) for de novo review.20 The Parties filed
statements of position on September 9, 2011.
A. Port Authority Proposal and Sprint's Response
1 1. Port Authority 's Contentions. Port Authority advances six arguments in support of its
Change Notice. First, it claims that it reasonably relied on Sprint's oral representations that Sprint would
fully reimburse Port Authority for the additional costs claimed in the Change Notice once rebanding was
complete.2' Port Authority submits that "representatives of Nextel assured the Port Authority's Project
Manager, James Buchanan, that the additional Schedule C22" costs would be reconciled at the end of the
rebanding project, since to incorporate the additional Schedule C costs before the project started would
have delayed this rebanding substantially."2" Port Authority states that "Section 3(c)(ii) [of the FRA]
provides for reconciliation of Schedule C cost later in the rebanding project."24
12. Second, Port Authority contends that Sprint delayed relinquishing frequencies to Port
Authority, which precluded Port Authority from revising the FRA to reflect additional costs.
Obviously, the Port Authority would have preferred to have a fully
settled FRA at the time it was signed, and have had time to work through
any changes so that the Port Authority would not have to proceed with
the new work necessitated by the two-phased approach[2s] while facing
the burden of proof when it came to reconciliation and reimbursement.
However, Nextel unilaterally took it upon itself to refuse dates to turn
over frequencies for the FRA in order to more conveniently continue
commercial service in the New York area. In so doing, Nextel delayed
the process more than a year, and thus, took away the Port Authority's
ability to revise the FRA to reflect these changes brought about by
Nextel's delay and ultimate insistence on a two-phased approach while
also adhering to the FCC-mandated Wave I rebanding deadline.2
21 Port Authority PRM at 6.
22 Schedule C of the FRA lists "soft costs" for management. project supervision, engineering, and related activities.
23 Port Authority PRM at 6. Port Authority adds that "new estimates would have had to be made by BAH-I and the
FRA itself would have had to be renegotiated, all events that would have delayed this transition which is contrary to
the Commission's goals that the rebanding process be completed in a timely and efficient manner without
compromising the public agency's ability to safely operate its emergency communication system during the
transition." Id. The costs in Schedule C of the FRA include vendor cost estimates.
24 Id. Section 3(c)(ii) of the FRA provides that "'[the Incumbent's Reconfiguration implementation may result in
unknown additional Reconfiguration Costs incurred by Incumbent that may vary from the amounts set forth in the
Cost Estimate, including but not limited to additional costs and expenses incurred as the result of required 'second
touches' of equipment and any other work necessary to assure that Incumbent receives Comparable Facilities." Id.
at Exhibit B.
25 The "two-phased approach" refers to Sprint surrendering spectrum to Port Authority in two tranches, rather than,
as is more usual, making all of the replacement spectrum available at one time. The two-phased approach was
proposed by Sprint, and approved by Port Authority, before the FRA was signed. Id. at Exhibit 1 -- Affidavit of
James Buchanan. P.E. at 4-5 13-18.
26 Port Authority Reply at 3.
Federal Communications Commission
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United States. Federal Communications Commission. FCC Record, Volume 27, No. 3, Pages 1878 to 2785, February 21 - March 16, 2012, book, March 2012; Washington D.C.. (digital.library.unt.edu/ark:/67531/metadc94252/m1/32/: accessed April 26, 2017), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.