Public Safety Advocate: The Opt-In/Opt-Out Clock Is Ticking!

States have until December 28, 2017, to decide to either opt in or opt out of FirstNet. There is a third option available, which is a passive opt in, meaning that if a governor does nothing by the deadline the state is considered as an opt-in state. So far, one territory (Puerto Rico) and 26 states have opted in. A number of states have issued RFPs for comparison of what FirstNet is offering and what another vendor might offer them. New Hampshire has already awarded its RFP to Rivada in the event it opts out, but since then the Governor formed a committee to weigh opt-in/opt-out pros and cons (the state staff had voted to recommend opting out). Unless something changes and New Hampshire opts in, Rivada may have at least one state to build out.

Some of FirstNet’s detractors are claiming that other states should follow New Hampshire’s lead, but no one outside the state knows exactly what was proposed in the RFP responses, nor do we know if the state’s requirement of income for New Hampshire from the proceeds of the FirstNet network was addressed in writing in the RFP response.

The best information I have is that a state may not profit from the proceeds of the FirstNet network except to reinvest any funds derived from secondary use of the spectrum back into the network. I have to wonder who will have to fund any shortfall in income from the network—the vendor or the state. Our most recent review of all ten of New Hampshire’s counties shows none have sufficient numbers of first responders to fund the network and none are in need of the spectrum on a secondary basis. Thus it appears New Hampshire will face a substantial shortfall. The question of the day is if there is a shortfall, who pays for it?

Some states that issued RFPs earlier in the process (Arizona and Michigan) have opted in so the RFP results are meaningless. Other states issued RFPs late in the game and it is not clear, to me at least, if there is enough time between their RFP release and the opt-in/opt-out deadline for a vendor to provide a real, meaningful response necessary for the state to do a head-to-head comparison between the RFP results and FirstNet/AT&T. Meanwhile, some states that are still missing are the most important ones from the aspect of being able to fund the network, network operations, and refresh for the next 25 years. These are the states with major population centers where the spectrum has real value for AT&T in terms of capacity increases during times when FirstNet users are not using the spectrum heavily.

I am sure that since the final state plans were delivered and the NTIA grant portion was provided the 90-day clock has started. The Single Points of Contract (SPOCs) and their staffs or others reviewing the FirstNet plan and then meeting with AT&T to discuss issues they may have regarding coverage, pricing, or legal issues are all hard at work. It appears as though many of these states have not issued an RFP for alternative vendor responses, which I hope means their preference is to opt in if the details can be worked out. With a project this size and plans delivered that detail what each state will receive and what their obligations will be, there are bound to be issues that need to be discussed and hopefully resolved in favor of the state.

Opting In Does Not Mean Subscribing

It is very important that those sitting on the fence understand that opting in does not obligate either the state or local jurisdictions to sign up for the service on day one. Some agencies I have discussed this with say they are telling AT&T what and where they need LTE coverage and once AT&T covers these areas they will migrate over to FirstNet. Meanwhile, they will stay with their existing broadband vendor. One of the great things a state provides local jurisdictions by opting in is the ability to stay with their existing vendor, move over to AT&T now or in the future, or not take part in broadband services at all.

The goal of FirstNet is still to provide a single, nationwide broadband network that is used by every jurisdiction in the country. It will take some time to reach that goal, but as I said last week, what AT&T has provided to FirstNet and the public safety community is better than what anyone imagined for this early in the game. While there is still a five-year set of goals for AT&T to follow, for the most part that will mean deploying Band 14 and filling in holes in its existing coverage. AT&T does not need to build out a 100-percent new network that would not provide access to most agencies during the first few years. As it stands, after the first of the year, agencies can make use of AT&T’s LTE network and enjoy full priority and pre-emption  access while AT&T is engaged in building out Band 14 and filling in the gaps.

No Do-Over

One thing I am often asked is if a state opts out and then its vendor does not provide what has been promised or goes out of business and the state is stuck with costs it was not anticipating, what options are there? Can the state return to the FirstNet fold? There are several possible answers. First is that the letter of the law does not address an opt-out state being able to opt back in so there is no legal way a state could insist that it be allowed to join. However, the other side of that has to be that since the goal of the network is to provide a nationwide, fully interoperable network, the NTIA, FirstNet, and AT&T could, perhaps, decide that for the benefit of the country and the network they would welcome the state to join them. Having said that, there is still the issue of what equipment has already been deployed and whether it is compatible with the AT&T way of deploying FirstNet. If not, who eats the cost of replacing the equipment, especially if the state has received an NTIA grant for network buildout? My guess is that the prudent answer to a governor who asks the question is no, there is no do-over.

December 28, 2017, is not that far away. The governors who have not made the final opt-in or opt-out decision should be being prepped in advance of final SPOC recommendations. Sending a recommendation to the governor’s office two days prior to the end date is not fair to the governor, the state and its agencies, and FirstNet. If governors are still undecided, they may need time to reach out to their staff or others in the state and seek other input prior to making their decision. The downside of waiting until the last days is that a governor must fully understand no action on his or her part means passively opting in for that state. He or she might be tempted to do nothing thinking the decision could be made later. In this case there is no later.

Since the FirstNet contract was awarded to AT&T there have been a number of bumps along the way. In some cases in the beginning, FirstNet and AT&T did not seem to be on the same page. Some of those at the states were put off by comments that more details about pricing and coverage would be revealed after the state had opted in (Trust Us). Further, many states complained about the lack of perceived coverage in their states while not realizing what they were seeing for the first build-out due date was actually much more than they would have seen had this been a new Band 14-only network buildout. This is essentially the best of both worlds, a full-up pre-emptive network while the network is expanded and filled in, but a network many agencies can certainly begin to use right away once their state opts in.

One of the most unfortunate parts of this was that until the contract was announced, FirstNet and AT&T were not permitted to talk to each other and start planning. The two organizations could only start the discussions needed on multiple levels of both organizations after the RFP was awarded. Further, in many cases, states were asking for different things, in different ways, so the word of the day for the first weeks if not months was confusion and tempers flaring. Hopefully, the bumps have been smoothed out, the two organizations appear to be working well together, and reports from a number of states indicate both FirstNet and AT&T are being responsive and they are receiving the information they need. However, the main concern for many states remains the difference in AT&T’s existing coverage, its projected coverage, and the coverage agencies already have from a different vendor.

Another sticking point is coveage in rural areas. The law states that rural areas must be covered as well as all the denser population areas of the United States. Another metric for network completion is the total percentage of the population coverered by the network. When totaling the number of people covered, rural areas do not contribute much to the numbers. So the issue of rural coverage is still an open issue for many states. This is one reason we are proceeding to work with counties and tribes to obtain other types of funding to expand rural build-out without it costing the county or state any additional money. AT&T already stated it is committed to rural areas and is willing to work with counties to determine the best options on a county-by-county basis.

I am encouraged and hopeful that the vision born so many years ago is finally becoming a reality and it looks to me as though 2018 will be an important year full of great completed milestones for all concerned. FirstNet is taking shape, but patience is still needed. Not all agencies will hop onboard at first. Many will wait until they see how it is working for their neighbors and how the coverage is evolving. We have to remember how long the planning process for FirstNet has been and that the build-and-operate phase is only starting. This too, will take some time.

Last up: Next week’s Public Safety Advocate will be delayed. I will be attending the International Association of Chiefs of Police (IACP) annual conference in Philadelphia, always a great event. I will publish the next blog as soon after I return as possible.

Andrew M. Seybold
©2017 Andrew Seybold, Inc.

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