FCC Record, Volume 27, No. 3, Pages 1878 to 2785, February 21 - March 16, 2012 Page: 1,909
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75. We reach the same conclusion regarding foreseeability of the need to implement a
temporary system that would back up the existing auxiliary system at Kennedy, Newark and Teterboro
Airports while the primary system was rebanded. Port Authority has not explained why the need for such
a temporary system was not foreseeable during negotiations and incorporated into the FRA.203 Similarly,
Port Authority has not explained why need for testing of Port Authority's police force's radios to insure
in-building coverage was not foreseeable.
76. Port Authority claims that after the FRA was executed, the Region 8 Regional Planning
Committee "required" Port Authority to maintain a mutual aid back-to-back system.24 As an initial
matter, we note that a regional planning committee lacks the authority to impose such a requirement.
Moreover. Port Authority cannot claim that the need to plan for mutual aid capability was not foreseeable
prior to the planning committee's action. To the contrary, the Commission has encouraged licensees that
use mutual aid channels to have "a plan in place to maintain mutual aid operations during
reconfiguration" and "[c]oordinate efforts to ensure continuity of mutual aid interoperability
arrangements with neighboring licensees."205 We conclude, therefore, that if there was a need to
implement a back-to-back system, it was foreseeable during negotiations and should have been reflected
in the FRA.
77. Port Authority attempts to distinguish the facts of this case from those in the Flagler
County, Florida case, in which we disallowed additional costs that were incurred unilaterally by the
licensee in violation of the FRA and the Commission's Change Notice procedures.206 Port Authority
claims that the disputed tasks in this case were not part of negotiations and that that the tasks were
necessary to ensure comparable facilities during rebanding.207 As noted supra, Port Authority's reliance
on the comparable facilities standard in this context is misplaced, because the standard applies to the
licensee's facilities after rebanding is complete, not to transitional issues that arise in the course of
rebanding.208 Additionally, Port Authority misinterprets the Commission's Change Notice procedures as
being limited to matters specifically discussed in negotiations. The Supplemental Guidance PN makes it
clear that licensees may not recover costs that were reasonably foreseeable during negotiations -
regardless of whether they were the subject of negotiation.29 Furthermore, Port Authority does not claim
that these excess costs were incurred as a result of an emergency such that it precluded Port Authority
from giving Sprint the opportunity to address these tasks in the Change Notice process contemplated in
the Parties' FRA.
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:Memorandum Opinion and Order. 25 FCC Rcd 10962 (PSHSB 2010); City of Irving. Texas and Sprint Nextel
Corp., WT Docket 02-55. Memorandum Opinion and Order. 22 FCC Red 16708 (PSHSB 2007): County of
Tazewell. Illinois and Sprint Nextel Corp.. WT Docket 02-55, Memorandum Opinion and Order. 22 FCC Rcd 8675
(PSI ISB 2007).
203 Port Authority SOP at 5-6 (Port Authority claimed it became aware of potential vulnerabilities after it executed
'04 Port Authority Reply at 14.
20o Guidance PN, 22 FCC Red at 17230.
206 Port Authority Reply at 11-12 citing County of Flagler, Florida and Sprint Nextel Corp.. WT Docket 02-55,
Memorandum Opinion and Order, 24 FCC Rcd 8235, 8237 9 (PSHSB 2009) (disallowing costs incurred
unilaterally by licensee in violation of FRA and Commission's Change Notice procedures).
207 Port Authority Reply at 11.
20s See supra paras. 62-63.
209 Guidance P.N, 22 FCC Red at 17230.
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/m1/50/: accessed March 17, 2018), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.