FCC Record, Volume 27, No. 3, Pages 1878 to 2785, February 21 - March 16, 2012 Page: 1,908
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no explanation for the inflation of costs in the Change Notice relative to costs agreed upon in the FRA for
the same tasks. For example, the Change Notice seeks three times the amount allotted for "escort time" in
the FRA, with no explanation of why that increase is reasonable and necessary.'9 We therefore find that
Port Authority has not met its burden to show that M/A-COM's claimed costs meet the Minimum
Necessary Cost Standard.
73. The record demonstrates that Port Authority unilaterally deviated from the terms of the
FRA in undertaking the disputed tasks without submitting a Change Notice to Sprint in advance as
required by the FRA.'96 Further, the Parties agreed that Port Authority would be responsible for all
proposed cost changes until such changes were approved and validated by the TA.'17 Instead of following
this procedure, Port Authority presented its Change Notice after the disputed tasks had already been
completed. Port Authority also deviated from the procedures for Change Notices established in the
Bureau's 2007 Supplemental Guidance PN.'95 There. the Bureau stated that if licensees encounter
unanticipated changes in cost, scope, or schedule during implementation - or in the case of an emergency
- they may recover the resultant costs through the Change Notice process.199 It cautioned licensees,
however, that the Change Notice process cannot be used to renegotiate agreements after the fact on issues
that were raised or should have been raised during negotiations.2?
74. We are not persuaded by Port Authority's argument that it should be compensated for the
disputed tasks because they were not foreseeable. Port Authority contends that the need to split the
EDACS system was unforeseeable because it was only during the expansion of its system, and after the
FRA was signed, that it "discovered" a risk of system failure that required splitting the system.201 We do
not find this explanation credible or persuasive. Port Authority has failed to show that it faced any
unusual or unforeseeable risk, as opposed to the normal risks associated with any system modification if it
is not performed properly. We also note that other 800 MHz licensees with EDACS systems have
successfully rebanded or are in the process of rebanding without splitting their systems.202
'" Id. at 35.
196 Section 7(ii) of the FRA provides: "if any Party believes that a change to the work contemplated by the Cost
Estimate set forth in Schedule C is required (including changes by Vendors), and regardless of whether
the need lbr a change becomes known during Reconfiguration or as a result of the reconciliation process.
such Party will promptly notify the other Party in writing." Port Authority PRM at Exhibit B.
197 Section 7(v) provides: "Transition Administrator Approval: Nextcl shall be required to submit to the Transition
Administrator a copy of the proposed Amendment together with a written request fobr its approval within five (5)
days of the Amendment completion. Such request shall be accompanied by reasonable documentation supporting the
need for and scope of the change(s) and any proposed increase or decrease in the Cost Estimate and/or in the time
required to reconfigure Incumbent's existing facilities to operate on the Replacement Frequencies. Nextel shall be
solely responsible for the cost of any changes) agreed upon by the Parties. Incumbent is responsible for all
unauthorized changes relating to work perfonned by a Vendor on behalf of Incumbent. No change to the Cost
Estimate set forth in Schedule C, as now or hereafter amended. or the time required to reconfigure Incumbent's
existing facilities to operate on the Replacement Frequencies shall become effective until the Transition
Administrator has approved the change(s) in writing."
198 See Guidance PN. 22 FCC Red at 17227.
200 Foburth MO&O, 23 FCC Red at 18521 31.
201 See supra n. 180.
202 See, eg.. City of Parma. Ohio and Sprint Nextel Corp., WT Docket 02-55, Memorandum Opinion and Order. 25
FCC Red 13485 (PSHSB 2010); County oft Henry Georgia and Sprint Nextel Corp., WT Docket 02-55.
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/m1/49/: accessed July 25, 2017), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.