GAO Clears FCC’s 800 MHz Rebanding Order
The FCC’s decision giving Nextel 1.9 GHz spectrum as part of the 800 MHz rebanding doesn’t violate federal law against private sale of public resources, the GAO found. Verizon dropped its legal objections to the rebanding order last week, and the GAO action was one remaining area of uncertainty (CD Nov 3 p1).
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The GAO had examined the terms of the deal at the request of Sen. Lautenberg (D-N.J.) and released a legal opinion Mon. to his office. In a 26-page opinion, GAO said specifically that the order doesn’t violate the Miscellaneous Receipts Act (MRA) or the Anti-Deficiency Act (ADA).
GAO noted that its opinion was limited only to “the specific legal questions presented in connection with the Antideficiency Act and miscellaneous receipts statute. It is not an endorsement of the Commission’s resolution of the policy, economic, practical, procedural or other considerations associated with the problem of interference with public safety communications in the 800 MHz band.” GAO also said the order “reflects an expanded use of the Commission’s authority for which there is no exact precedent.”
Lautenberg said in a statement he was satisfied with the decision. “When Congress begins rewriting the Communications Act next session, we should review the appropriate division in spectrum management between Congress and the FCC,” Lautenberg said: “This broader issue remains, but I am delighted that much needed spectrum and relocation funding will be available to our public safety agencies in an expedited manner.”
The 800 MHz order is expected to appear in the Federal Register within the next few days, with the recent public notice seeking additional comments to follow a few days later. The 10-day comment cycle doesn’t start until the notice is published.
Legg Mason said the decision helped the deal clear what was one of 3 remaining hurdles. The other 2 are publication in The Federal Register and an order addressing Nextel’s request for changes to the Aug. 6 order. “The GAO was very deferential to the FCC’s interpretation of its statutory authority to manage spectrum in a way that permits the spectrum swap; perhaps more deferential than the D.C. Circuit would be if faced with an appeal,” Legg Mason said. “But a favorable GAO report will likely dissuade other parties from pursuing a challenge.”
“The GAO’s opinion is good news for public safety and Nextel is pleased that the GAO’s opinion affirms the legality of the FCC’s report and order solving public safety radio interference at 800 MHz,” a Nextel spokesman said.