Is Partnering with FirstNet Possible?

Anyone who knows the cost of broadband wireless knows full well that the $7 billion of funds from the upcoming spectrum actions that has been allocated to the FirstNet system is not nearly enough to build the nationwide, fully interoperable broadband network envisioned by the Public Safety Community, Congress, and the Executive Branch of the U. S. Government. Instead, it should be viewed as a “starter kit” to put the network basics in place and to incent those who could, according to the law, partner with FirstNet and add funding, rights of ways, tower sites, and perhaps even backhaul or equipment on a shared basis.

The thought has always been to empower Public Safety to develop public/private partnerships in order to build out the network completely and quickly, using excess bandwidth to provide partners with secondary use of the Public Safety spectrum when Public Safety is not using of all of its available spectrum. The types and number of partnerships were never spelled out in the law, and from its inception, FirstNet had a choice of selecting a few nationwide partners or more regional partners. Partners are not limited to commercial network operators by law so they could be commercial network operators, power and other utility companies, rural telecom companies, or even investment firms.

Early on, FirstNet, hopeful of securing partners quickly—and being naive when it came to the true, but unknown value of secondary usage of the spectrum—issued a series of RFIs (Requests for Information) and received a fair number of responses. However, since RFI responses are public documents that can then be shared with FirstNet and reviewed by competitors, very little information was forthcoming from the RFIs. No interested party was about to telegraph its intentions thus none of them outlined anything close to something that would have made partnerships viable. FirstNet cataloged all of the responses and presented its findings, which, frankly, were very disheartening to those at FirstNet who had assumed that the commercial community would be falling all over itself to acquire a piece of FirstNet spectrum, even on a secondary basis, in exchange for investing in the overall network.

After the smoke cleared I reached out to most of those who responded to the RFIs and the overwhelming response to my questions followed a common theme: “The RFI was a public response so we were not at liberty to be candid in telling FirstNet what we are really willing to do.” “Okay,” I asked, “What do you need to make a deal with FirstNet?” The answer was that they want the same type of across a table dialogue they are free to have with potential industry partners: closed door meetings, back-and-forth negotiations, ending in an agreement that is a win-win for both sides. The issue with that is FirstNet is not truly the “Independent Authority” called for in the legislation. Instead it is operated under the auspices of the NTIA, or rather a Board of Directors reporting to and having to follow all NTIA and U.S. Government rules and regulations, so these types of meetings are forbidden by law. The Government needs to be transparent, therefore there are thousands of pages of rules and regulations and the bottom line is that FirstNet has to live with this and cannot hold these meetings.

The issue is that without these essential meetings and the give and take that is prevalent in the commercial wireless world there can be no back and forth to structure a deal that is agreeable to all sides. As I see it, no meaningful private discussions means no partners. No partners means no more money for the network. No more money for the network means at some point FirstNet will not be able to continue to function, which means Public Safety will have lost the most important opportunity it will ever have to fix its interoperability problems.

When FirstNet was first written into the law, Congress described its vision of FirstNet as “an independent authority within the NTIA the “First Responder Network Authority.”” The bill goes on to describe the makeup of the FirstNet Board of Directors, the staggered terms they will each serve, and that they will all be appointed by the Department of Commerce (DOC). But as with the wording of any of the laws Congress passes and the President signs into law, it is the interruption of the words that determines what really happens. In this case, the NTIA chose to interpret the wording to mean that NTIA would oversee everything done by the FirstNet board and NTIA would impose all of the Federal rules and regulations on FirstNet.

The first issue with this is commercial network operators and other potential partners have never had any type of partnership with the Federal Government and many I have talked to frankly don’t want the U.S. Government as a partner simply because commercial operators have a responsibility to their shareholders and their customers while the Federal Government has no clients or shareholders (voters don’t really count here). Why would company A, which is interested in working with and gaining access to FirstNet’s spectrum on a secondary basis, enter into an agreement with the U.S. Government whose policy can change every few years as one or the other political party gains an advantage? Why would it spend money, help deploy FirstNet, and not be certain whether the spectrum it is supposed to gain access to will be available to it after the next election?

Next, of course, is the issue that every partnership must be proposed in a public forum where competitors can see what has been offered. Why would any company publicly divulge proprietary information that could be used to its competitors’ advantage? Partnerships have been taking place in the commercial world for a very long time. Most recently, Motorola partnered with Verizon Wireless for LTE networks and services. This partnership was agreed to behind closed doors and the details were not made available to Motorola’s or Verizon’s competitors. Motorola has an LTE agreement with Ericsson and again the terms are not public. Why does FirstNet have to negotiate its partnership agreements in a public venue? The bottom line is that if this is what is to be required going forward, then I fear that FirstNet will never find the best partnerships. Those that could help FirstNet the most will simply not respond if they have to do so in a public document.

Other issues also need to be resolved, depending on the area of the Country. In rural and most suburban areas there is no doubt that FirstNet will have spectrum to share 99% of the time. In major metro areas there is no way to know whether there will be any spectrum available to share until the network is up and data and video usage is tracked. Once we have that information, if there is spectrum available, metro areas could be included in the partnership scenario. However, until there are some data points, what is wrong with entering into partnerships with rural carriers, power companies, and others to expand coverage into rural and most of suburban America? Yet at every turn, the smaller potential partners are told they cannot simply sit down and have honest and open discussions about partnerships.

The bottom line is that everyone I talk to within the commercial wireless and utility market wants to figure out a way to work with FirstNet. There are many issues with how FirstNet is being required to follow to the letter, arcane, and in this case, anti-productive U.S. Government regulations that may be needed within the U.S. Government. Remember, FirstNet is supposed to be an “independent authority.”

NTIA is responsible for another organization that functions the way FirstNet should. ICANN, which handles dot naming of the Internet worldwide is described as an “organization and a private sector, non-profit corporation” that “currently performs the IANA functions, on behalf of the United States Government, through a contract with NTIA.” ICANN is now being turned loose by NTIA but it has been able to hire whom it wanted at competitive commercial rates, work with anyone it wanted without having to follow the thousands of pages of crippling Federal requirements, and has been very successful as an independent authority within the NTIA.

If we want FirstNet to succeed, perhaps it is time for the Public Safety community to start asking questions about why after reading the law (as a non-attorney), FirstNet appears to be evolving as something far different from what many within the U.S. Government intended, and certainly not what the Public Safety Alliance (PSA) or the majority of the Public Safety community expected.

Andrew Seybold

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