LAUTENBERG EXPECTS GAO INVESTIGATION ON FCC NEXTEL ORDER
Sen. Lautenberg’s (D-N.J.) office has been informed by GAO that it will investigate possible illegality should the FCC proceed as expected and endorse a plan that would give Nextel spectrum at 1.9 GHz as part of an 800 MHz rebanding plan, Lautenberg’s office confirmed Thurs. Lautenberg wrote GAO Tues. raising questions about the proposal. At our deadline, the FCC announced that the order would be on the Commission’s agenda for the July 8 meeting.
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Meanwhile, former U.S. Attorney Gen. Richard Thornburgh, enlisted by Nextel, said in a letter to the FCC released late Thurs., that contrary to Verizon arguments, the FCC would not violate federal law if it agreed to give Nextel 1.9 GHz spectrum as part of a rebanding plan.
Thornburgh told the FCC that the 2 statutes referred to by Verizon, the Miscellaneous Receipts Act (MRA) and the Anti-Deficiency Act (ADA), “only apply to agency conduct directly involving the agency’s receipt of and/or expenditure of money.” Thornburgh noted that if the FCC backs the Nextel plan the Commission won’t be obligated to “spend money that has not been appropriated by Congress,” which would violate the law. The FCC also wouldn’t receive money from a 3rd- party “to spend as it sees fit,” Thornburgh said.
The Verizon arguments are “diversions intended to provide cover to the weaknesses in Verizon’s challenge to the Commission’s authority to adopt the consensus plan under its organic statute,” Thornburgh wrote.
Meanwhile, Washington analyst firm Precursor Group predicted in a research note that the U.S. Comptroller Gen. is more likely than not to find the FCC violated federal civil law if it gives Nextel the 1.9 GHz spectrum.
Precursor said it still expects the FCC to side with Nextel, but that could prove an empty victory: “Upon review of these statutes and case precedent, Precursor believes that criminal liability is unlikely; but, more important to [Nextel], the Comptroller Gen. is likely (.HEADLINE .TEXT65%) to find GAO precedents controlling and rule the whole plan illegal, invalidating [Nextel’s] regulatory win at the FCC.”
Precursor said the public safety concerns the FCC hopes to address in the order “are likely not germane, because the GAO maintains that the public interest in maintaining government accountability and Congress’ sole Constitutional prerogative to appropriate funds (as expressed in the cited criminal statutes) outweigh any governmental agency’s or official’s estimation of the ‘public interest’ benefit of the quid pro quo.”
In another development, Nextel has worked out an agreement with Southern Linc, a Southern carrier company, over an 800 MHz channel plan for areas to be designated for cellular operations in the Southeast. Nextel and Southern Linc reached an agreement on the plan last week and made an ex parte filing Wed. While not a huge development, sources said, it does clear one area of contention. “What we were looking for was ways to accommodate carriers in those markets,” a Nextel spokesman said. - Howard Buskirk