Nextel CEO Makes Pitch for Revised 800 MHz Order
Nextel CEO Timothy Donahue and Senior Vp Robert Foosaner met with 4 of the 5 FCC Comrs. Mon. and Tues. to make a high-level case for revisions to the 800 MHz rebanding order. Sources said the executives used a PowerPoint presentation and covered technical problems with the order, as well as arguments that the order should be changed to save the carrier hundreds of millions of dollars.
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Only Chmn. Powell, who was on travel, didn’t meet with the executives. Late Tues., Nextel hadn’t filed ex partes on the meetings. Nextel has applied persistent pressure at the FCC to change the order in a way that could save the company as much as $1.1 billion (CD Sept 20 p5). Sources say Nextel faces an uphill battle to convince the FCC it should make the kinds of financial changes it’s seeking through a simple erratum, and the Commission would likely have to reopen the 800 MHz order through a rulemaking.
“I suppose they could do an errata,” said a regulatory attorney who hasn’t been active in the Nextel case: “The better approach would be to do a rulemaking with a short comment window - explain what they did and ask for comment.” The attorney added: “If it’s a few dollars, it could be an errata. If we're talking about several hundred million that could be more than an errata.” “I think they would want to address it in an erratum, but that would be difficult,” an analyst said: “Were I general counsel I would advise a fast-track rulemaking.”
Sources also said Nextel’s tactics push the envelope on what must be reported in an ex parte. For example, in last week’s meetings, sources say, many of the company’s arguments concerned finances, but Nextel mostly stressed more technical questions in an ex parte filing.
The need for companies to make reasonably complete ex parte filings has surfaced repeatedly. Three years ago, Comr. Abernathy said her office would start returning ex partes that aren’t detailed enough to meet Commission requirements (CD Oct 5/01 p1). “We have rules in place that say when you come in and file an ex parte it should delineate exactly what you're saying and what issues you are going into,” she said then.
Rules the FCC approved in 2000 on ex parte disclosures state specifically: “Persons orally presenting data or arguments not already reflected in their written submissions in the proceeding must file summaries of the new data or arguments. The summaries must describe the substance of the new data or arguments and not merely list the subjects discussed.”
Nextel appeared close to a rule violation in the arguments it’s making at the FCC, said an analyst who’s following the case. “They're coming right up to the edge of the line,” the analyst said: “The FCC can and should talk to the parties affected by its orders. But once an order is adopted you have to be careful whether [lobbying] is confined to clarification or whether it’s negotiations.” A 2nd analyst said: “They would probably need to reopen the entire order. They're at the point of no return in terms of coming up with a clever strategy to tinker with the issue behind the margins.” Verizon Wireless accused Nextel of illegal negotiations at the FCC last week (CD Sept17 p2).