PSA Discovery Patterns Weekly News Summary

Thu Dec 17, 17:32:35 2015

Some of the State of New Hampshire’s elected officials and their staffs have been conned, hoodwinked, led down Primrose Lane, or whatever you want to call it. I am referring to the State’s release of RFP DOS# 2016-10, which was released by the Department of Safety, Office of Interoperability, and New Hampshire Interoperability Executive Committee. This RFP starts out as though it was written by FirstNet or the NTIA for the benefit of the Public Safety community. However, later in the Introduction we begin seeing that a vendor has convinced the State to issue this RFP now, ahead of the FirstNet RFP.

At an open meeting of New Hampshire’s Statewide Interoperability Executive Committee (SEIC) at which, I am told, this issue was to be discussed, it was simply announced that the RFP had been published. Several people who were there said those from within the Public Safety community were first stunned, then embarrassed when they learned an RFP had already been released.

It is clear from reading the RFP that is was not written by anyone in the State of New Hampshire but by some person or group intent on pushing the State into actions I believe go against the law creating FirstNet. This could well jeopardize the Nationwide Public Safety Broadband Network (NPSBN), at least in New Hampshire, denying both the New Hampshire Public Safety community and the citizens it serves this much needed new type of wireless communications system.

While I am not privy to promises made to anyone within the State, it is easy to understand from previous ploys that some vendor(s) believe New Hampshire, and probably other states, do not have to wait for FirstNet. Instead, they can simply purchase a system and install it using spectrum for which they have no lease or a license, start collecting secondary user fees, and funnel them into other State projects. Common sense and due diligence should have convinced decision-makers that this was too good to be true.

Don’t misunderstand me, if a state were to issue a Request for Information (RFI) that did not commit to purchasing a system but was part of its opt-in or opt-out due diligence, that would be one thing. However, this RFP states in section 1.1 Contract Award: “THE STATE PLANS TO EXECUTE A PUBLIC-PRIVATE PARTNERSHIP CONTRACT AS A RESULT OF THIS RFP. The award shall be based upon criteria, standards, and weighting identified in this RFP. The State also reserves the right, at its discretion, to award a Contract by item, part, or portion of an item, group of items, or total Proposal. THIS PUBLIC-PRIVATE PARTNERSHIP WITH A PRIVATE COMMUNICATIONS TECHNOLOGY ORGANIZATION, STEEPED IN FIRSTNET AWARENESS, WILL COLLABORATE IN A BUSINESS-LIKE RELATIONSHIP TO BUILD-OUT AND MANAGE THE FIRSTNET SYSTEM AS IT SPECIFICALLY RELATES TO NEW HAMPSHIRE.” [Editor’s Note: highlights added.]

Section 2. Schedule of Events calls for the award to be made by April 15, 2016, and the notice to proceed (to the vendor) by April 30, 2016, before the FirstNet RFP deadline for bidding. In fact, this RFP was issued by the State prior to having access to the final RFP that will be released by FirstNet in early January.

The Spectrum for the NPSBN is licensed by the Federal Communications Commission (FCC) to FirstNet, an independent authority under the NTIA and the U.S. Department of Commerce. Since the license is nationwide, the only way a State can gain access to it is to opt out by filing appropriate documents with the FCC and receiving approval, with the NTIA and receiving approval, and by entering into a lease for the spectrum with FirstNet approved by the NTIA. Any vendor that would accept the task of building a band 14 Public Safety network anywhere in the United States, its territories, or on tribal land prior to having a spectrum lease in hand is, I believe, breaking the law, plain and simple.

The RFP was obviously written by a vendor and it advocates an award well ahead of the FirstNet RFP award, the State receiving the FirstNet State plan, and the deadline for the Governor of the State to make an opt-in/opt-out decision. It is strange to read sections such as 1.4.3 Testing: “(17) Prior to operational deployment on the PROPOSED SYSTEM, infrastructure equipment SHOULD have passed FirstNet- required Performance Testing of individual interfaces, nodes and overall system as per the specific performance requirements of the PROPOSED SYSTEM. (18) Nationwide applications on the PROPOSED SYSTEM SHOULD have passed FirstNet-required security testing to proper security levels (e.g., Criminal Justice Information Services [CJIS]) to ensure protection of FirstNet and public safety information.” To my knowledge there are no published or established performance testing or applications testing requirements that have been made public or that have been approved by the FirstNet Board of Directors. [Editor’s Note: highlights added.]

Reading the RFP is informative and somewhat disconcerting since some of the requirements in the State RFP may not be the same as those in the FirstNet RFP. Therefore, the resultant network will not meet FirstNet requirements for network interoperability, cybersecurity, Evolved Packet Core (EPC), the heart of the network, or a dozen or more other network and operational criteria. And this network is to be completed and ready for service by September 30, 2017, well ahead of FirstNet’s likely schedule.

The document is 53 pages long with maybe 18 pages of RFP and the rest typical boilerplate. The meat of the RFP from the State’s perspective is section 3: Scope, Requirements and Deliverables. At the end of this section is a chart of milestones. Milestone 8 says: “AN ECONOMIC MODEL THAT ALLOWS THE STATE TO BENEFIT FROM THE VALUE OF LIMITED SPECTRUM.” In other words, some folks at the State level believe that by building this network themselves the State can somehow receive compensation from anyone who might make use of the spectrum whether from the first responder community or from a secondary user scenario. The law that created FirstNet stated that the excess spectrum can be used for secondary communications including commercial for-pay services as long as FirstNet does not directly charge the secondary user but has a partner that commits to using the network on a secondary basis. In a request for clarification, FirstNet asked for comments on who could and could not benefit from income derived from secondary network use. The answer FirstNet published states that any funds collected must be used to expand or operate the nationwide network and must be remitted to FirstNet. I fail to understand how this can be misconstrued by anyone.

I believe the State got this wrong in several ways:

• It will not have access to money raised from use of the network. As I understand it, these funds must go back into the network and be administered by FirstNet.
• A state cannot purchase an LTE network and put it into operation on spectrum for which it has no valid FCC license and no lease from FirstNet for use of band 14.
• There is no way a state or vendor can be assured that the network it intends to build will really mesh and be 100% compatible with the overall FirstNet LTE network.

I strongly suspect the vendor(s) in question will use this “win” to push other states into the same scenario, creating havoc for the Public Safety community and/or ending up in Federal Court. It is sad that some vendors are putting their greed and the greed of some unsuspecting well-meaning people within states who believe the state will benefit from secondary network income ahead of the goals of FirstNet.

At the end of the day, the states that move forward with this type of scenario will find out just how misled they have been, and how wrong the information they have been provided truly is. However, the promise of money in return for leasing spectrum to others is compelling. Unfortunately, the laws as I understand them and the needs of the Public Safety community are not being considered relevant. I hope this State and others wake up to what is and is not possible with FirstNet as a partner and reject the falsehoods being fed to them.

Statement from FirstNet CEO Mike Poth, December 9, 2015, Board of Directors Meeting

The way I read the following statement is that FirstNet will not entertain any deviations from the schedule it has put forth for the RFP, state consultation, and opt-in or opt-out process.

“One of the keys that we understand…is that states are getting anxious. But we all have to remind ourselves, the statute does set up a process as to how we’re going to go about; and we’re going as fast as it practically makes sense to get a proposal, select a partner, get state plans out, so that the states can make informed decisions as to what’s in the best interest of their ultimate end customers, the Public Safety community.

So we’re asking for your patience. Just hang tight; I know everyone’s getting anxious. We’re starting to hear a lot of states, “We’ve got to get going now.” And we feel that urgency, too.

As everyone probably knows, the RFP that we’re contemplating is a result of two years of that effort – the inputs from the consultation, from the states, tribal, federal, all the data collection, the public notices that were put out. We put out requests for the information. We got opinions; we got recommendations; we even got, dare I say, criticisms as to what’s the best way to put this offer together so that we can get the best solution to achieve the mission for public safety.”

Andy