PSA Opting Out of FirstNet

Thu May 26 19:47:39 2016

Each state has the right to opt out of the plan FirstNet and the selected partner vendor presents to it. However, it the state does opt out, it is then required to jump through a number of hoops in order to be able to build out its portion of the network. First it must submit a plan to the FCC for approval, then both the National Telecommunications and Information Administration (NTIA) and FirstNet become involved in the process. The state has to negotiate a lease for the spectrum with FirstNet and then the NTIA has to approve a grant to help fund the state’s build. Opting out is a complex process with a lot of room for delays and problems. There is nothing I can find in the law that says a state can simply sit back and do nothing. In fact, it appears as though FirstNet will have the right to build in a state that either does not meet the opt-out criteria or merely decides not to be part of the network.

All of this seems like a convoluted way to basically punish a state for not being part of FirstNet. Let’s be clear here, this is not FirstNet’s set of rules, it is not even NTIA’s set of rules. Rather, this is how Congress crafted Title VI of the Middle Class Tax Relief and Job Creation Act of 2012 that was signed into law. It is odd to me that members of Congress who are elected by the people in their states included this type of wording. Perhaps they understood that the network would better serve the Public Safety community if it were all one network, operated by a single entity, with the funds flowing to the RFP partner and to FirstNet to provide both profit for the RFP partner and funding to expand the network or add more coverage over time.

The principal issues I see that could derail the opt-out process start with the FCC having to approve each and every state’s plan and to ensure the Radio Access Network or RAN (the cell sites, basically) is fully compatible with the FirstNet network for true interoperability. It is not clear how long the FCC will take to review each of the state’s requests. To begin with, the FCC is long on attorneys and short on technical expertise. If it elects to fully use its powers under the Administrative Procedures Act (APA), it could choose to have a separate Public Notice and comment period for each state’s plan that is presented, the process could take months to complete. And FCC approval is only the first of three steps a state must go through.

What if the FCC and FirstNet’s opinions differ on a state’s RAN architecture and the FCC approves it but FirstNet has an issue with it? Or the other way around? There is nothing in the legislation to address a possible stalemate, which could add more time. FirstNet holds the license for the spectrum, which is issued by the FCC, and the NTIA has no jurisdiction over the FirstNet spectrum. The NTIA only has control over federal government spectrum, not FirstNet spectrum even though FirstNet is technically an “independent authority” under the auspices of the NTIA and the Department of Commerce.

So the first set of delays for a state to move forward in opt-out mode could be with the FCC’s approval. Next are the negotiations with FirstNet for a spectrum lease. When FirstNet took over the BTOP grants that were issued by the NTIA to early builders, the spectrum lease issues took a lot of time to resolve. Some early builders could not come to terms with FirstNet and lost their grants. The state of Mississippi is one example of a failed agreement between a state and FirstNet. I am not sure this will be a major issue any longer since FirstNet has now successfully completed lease agreements with other early builders including Harris County, TX, LA-RICS, the State of New Jersey, and a few others. But any sticking point would require more time to complete the lease process. If a state is really smart it will ask for, and hopefully receive, the right to add more RAN to the state network using state and local funding as long as the RAN continues to meet both FCC and FirstNet interoperability criteria.

That leaves the lease with the NTIA for funding. It appears that the money NTIA will have available to award to the state will be the money the winning RFP partner has indicated it would cost it to build out that state. And, of course, the funds for the grant will be taken from the $6.5 billion FirstNet will pay to the RFP partner as various build-out milestones are met. I am sure that none of the bidders would low-ball their cost estimates to build out the states they believe will opt-out, but if I were bidding I would be tempted to take that course of action, especially since the RFP enables the winning partner to go back into the opt-out states and try to cut a deal so it can then build out that state’s RAN as well as the rest of the network.

Moreover, if a number of states do opt out it is not really fair for the RFP partner planning to build out the network. If there are many delays in positioning opt-out states to move forward with their own build-out, the RFP partner will not be able to use the secondary spectrum in those states until the process is completed. This is not fair to the state, it is not fair to the Public Safety community, and it is not fair to the RFP partner that will be spending $billions on the network and will need to start deriving income from the network, and thus the secondary spectrum, as quickly as possible.

There has to be a way to make this process easier. What if, for example, an opt-out state worked with FirstNet and FirstNet certified that its RAN architecture would work in the FirstNet network prior to the state going to the FCC. It seems to me that this one extra step could save time and money for all concerned since the FCC would be receiving a state plan that had already been approved as meeting the interoperability requirements of FirstNet. There is also probably a way to speed up both the spectrum lease and NTIA funding grants for these states and it appears to me, as a non-attorney, that the wording of the law would not preclude some ways of making the opt-out process easier for all parties as well as faster, which would benefit the state, Public Safety, FirstNet, and the RFP selected partner.

Finally this week I would like to call your attention to a report issued by the Wireless Innovation forum. This report addresses the issues related to the Evolving Complexity of Public Safety First Response. The lead-in to the report states, “‘Elements of Context for Cognitive Radio Based Public Safety Communications Systems’ shows how context can be used to manage Public Safety communications and recommends use cases.” Elements of the report include:

• Overviews of the landscape and the role of FirstNet
• Description of context aware cognitive radio
• Context Aware Cognitive Radio for Public Safety: Model and Resources
• Context Inputs for Cognitive Systems
• Applications of Context for Public Safety
• Recommendations

The flyer for the report, which includes a link directly to the complete report is here. It is well done and worth reading. Be sure to look at the list of sponsors that support the Wireless Innovation Forum since they include, as you would expect, Motorola Solutions but also Thales, Finmeccanica, and the one that caught my eye, Google.

Andrew M. Seybold

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