FCC Record, Volume 27, No. 3, Pages 1878 to 2785, February 21 - March 16, 2012 Page: 1,910
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78. We deem it significant that the sums allocated to BAH in the FRA had already been
exceeded before the FRA was executed. In light of this fact, it was foreseeable at the time that additional
BAH services would be required in the implementation phase of rebanding Port Authority's system. It
appears that Sprint and Port Authority contemplated that some tasks not included in the FRA, would be
necessary after execution of the FRA and were to be accomplished by Change Notice.210 What the Parties
did not contemplate, however, is that Port Authority would complete those tasks and obligate funds
before the Change Notice was submitted. It is well established that licensees that expend funds before a
Change Notice is submitted to and approved by the TA do so at their own risk.'"
79. Finally, we are not persuaded by Port Authority's claim that it did not submit a Change
Notice before having the disputed work performed because it was under pressure to complete Wave I
rebanding as a result of Sprint's alleged delays in turning in its frequencies."' The record shows that
Port Authority did not inform Sprint that the disputed work was being conducted, much less advise Sprint
of the methodology and cost. Regardless of whether Port Authority felt "under pressure,"' it was obligated
to provide a Change Notice and receive approval before commencing the work.
D. Mediation Costs
80. We agree with the TA Mediator's recommendation. Although Port Authority has not
prevailed on the Change Notice issue, it has presented colorable arguments in support of its position.
Moreover, Sprint does not dispute Port Authority's claim for legal fees. We find that the legal fees are
adequately documented and we approve them.
E. Good Faith
81. Port Authority argues that Sprint has not negotiated the Change Notice in good faith.'3 The
Commission has emphasized in this proceeding that good faith negotiation by all parties is essential to
achieving the Commission's rebanding objectives.-4 Among the indicia of good faith negotiation are (a)
the steps a party has taken to determine the actual cost of relocation to comparable facilities; (b) whether a
party has unreasonably withheld from the other party information, essential to the accurate estimation of
relocation costs and procedures, requested by the other party and (c) whether a party has made a
counteroffer when presented an offer by the other party.25S
82. Port Authority has not claimed that Sprint failed to conform to any of the above indicia of
good faith; it has only alleged that Sprint acted in bad faith because it refused to assume all of Port
Authority's claimed costs. We do not find that Sprint's offer to reimburse only a portion of Port
Authority's claimed costs is evidence of bad faith. Although negotiations were at times contentious and
210 Sprint PRM at i-ii.
211 See supra para. 59.
21 See supra para. 12.
" See supra para. 45.
214 See 47 C.F.R. 90.677(c). See also 800 MIllz Report & Order. 19 FCC Red at 15076-77 1201. See also, e.g.,
Reminder to 800 MHz Wave Three Channel 1-120 licensees of Their Band Reconfiguration Negotiation and
Mediation Obligations. Public Notice, WT D)ocket No. 02-55, 21 FCC Red 7122 (WTB 2006).
215 See 800 MHI: Report and Order. 19 FCC Red at 15076-77 n.524.
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/m1/51/: accessed August 21, 2017), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.