Public Safety Advocate: New Hampshire Opt-Out Issues!

When FirstNet was formed by Congress in 2012, the idea was to create a nationwide, fully interoperable, broadband network that gave public safety absolute priority. Congress also provided a secondary way for states to take part in FirstNet by building out their own statewide Radio Access Network (RAN), using their vendor of choice. However, to do this they must work their way through three steps: (1) gain approval from the Federal Communications Commission (FCC), which must decide if a state RAN will technically and safely connect to the nationwide FirstNet network; (2) work with the National Telecommunications and Information Administration (NTIA) to secure a grant to help offset the cost of the state RAN; and (3) negotiate a spectrum lease with FirstNet to use the FirstNet spectrum within that state.

In 2015, New Hampshire issued an RFP for a vendor to build and operate a statewide public safety RAN if it decided to opt out of a FirstNet state plan for New Hampshire. On September 7, 2016, New Hampshire officials awarded a binding contract to Rivada Networks to be the company that would build out its RAN if the Governor decides to opt out of the FirstNet state plan. This contract was awarded prior to current Governor Sununu taking office and was viewed by many in New Hampshire and elsewhere as a very premature decision since there were still so many unknowns. Two recent articles in the Union Leader newspaper, one on November 13, 2017, and one on November 21, 2017, both walk the people of New Hampshire through why its Governor should opt out (the decision must be made by the Governor by December 28, 2017). The first article presents a fair assessment of both sides of the argument and makes a point of saying those in the public safety community (the primary users of this new network) are concerned about entering into a contract with Rivada, but that the NH Statewide Interoperability Executive Committee (SIEC) voted in favor of Rivada.

Also in this first article, the Governor is quoted as saying, “We will be the decision-makers to see if opting out becomes viable for the rest of the country.” Gov. Chris Sununu told members of the Executive Council at its pre-meeting on Wednesday (11/8/17), “We are the tip of the spear.”

I am not sure any other states and territories are considering opting out, especially since more than half of them have already opted in to FirstNet. There are, of course, several states that have issued their own RFP, which is a sensible way to compare what FirstNet/AT&T and other vendors might offer. However, at least two states that had issued RFPs, Arizona and Michigan, have decided to opt in and in the case of Michigan, Rivada Networks made a big deal about the fact that it was the winning bidder even though Michigan never indicated this in its own press releases.

The second article is really a Question and Answer session that appears to have been broadcast on a radio show on New Hampshire Public Radio when host Rick Ganley spoke with John Stevens, the Statewide Interoperability Coordinator (SWIC), at the Department of Safety. The beginning questions deal with the need for a FirstNet network, the congestion of the commercial wireless broadband networks during times of emergency, and the fact that public safety has had no priority to gain access to the networks when they were congested and unusable. Then the questions become more specific to New Hampshire and what it is trying to accomplish.

The first is a question about coverage in both the northern and western part of the state where there are “issues regarding communications.”  What the issues are is not clear nor is a distinction made between existing Land Mobile Radio (LMR) public safety systems and broadband coverage. Nor is there any discussion of whether FirstNet/AT&T or Rivada has plans to address these “coverage issues.”  It should be noted that in many of the opt-in states AT&T is working with state and local public safety agencies to determine where their coverage needs to be increased. Further, the New Hampshire SWIC failed to mention, at all, that because a state opts in, that does not mean the public safety agencies are required to become users of the FirstNet/AT&T network. In fact, they have multiple choices: to join FirstNet/AT&T; to stay with their existing commercial wireless provider; to choose yet another provider; or to not make use of broadband services. The law is explicit—the state and local public safety agencies are free to do what they want.

When the SWIC was told by the show’s host, “Well, AT&T says that they would build additional towers and utilize rural providers. And spokespeople have said that there is no other provider that can bring that level of coverage to New Hampshire, especially within the North Country, but you disagree.” His two-word answer was, “I Disagree.” When asked why he disagreed he stated, “well, currently right now in New Hampshire less than 5 percent of first responders in New Hampshire have AT&T service.” He further states, “So what we’re looking for through the Rivada plan and through the New Hampshire collaboration with Rivada is setting up a cell carrier that is neutral. So not making any difference what cell carrier you currently have now, we’d be able to plug you into the FirstNet network.”

The replies from the SWIC were not responsive to the statement and question posed by the show host.  This was not about how many public safety people are currently users of the AT&T commercial network, it was about the fact that AT&T, as part of its FirstNet contract, has stated it will build additional towers and provide much greater mobile broadband coverage in New Hampshire than AT&T or any other commercial carrier is currently expected to provide for the public.

A question my team and I have investigated in not only New Hampshire but in every county in the United States, is the question of whether FirstNet can be a self-sustaining network in that county and in that state. In New Hampshire, for all ten counties, the answer is no, it cannot be self-sustaining. There are two reasons for this. First, there are not enough first responders who will be paying a monthly fee, and finally, there is already enough licensed broadband spectrum in the state so there is no demand we can identify from the other carriers to make use of the FirstNet spectrum on a local basis.

In reality, New Hampshire is one of the many states where FirstNet cannot be profitable on its own. That is one of the main reasons FirstNet needs the bigger states with the large metro areas directly involved; the funding from use of the secondary spectrum in those areas will offset the losses for a state such as New Hampshire. In his answer, the SWIC also states, “And in fact on September 7th of 2016, the governor and council awarded a no-cost, no-obligation contract to a vendor called Rivada Networks.  Rivada Networks and New Hampshire have been working together now for the last year, creating an alternative plan.” That statement does not answer a number of questions I assume have been answered but not shared with others:

• Is the contract truly a “no-cost, no-obligation” contract for 25 years?
• What happens if Rivada defaults on the contract?
  1. Who owns the equipment?
  2. Who must pay for ongoing services?
• Will Rivada build out its own network?
  1. It sounds like it from statement about a neutral network.
• If Rivada builds out a new greenfield network, how long will it take?
• If Rivada is using another network operator, are its contracts and rates binding for 25 years?

There are many other unanswered questions regarding New Hampshire’s SIEC vote to recommend that the Governor opt out. There are at least two points that should be addressed in the two articles. The first is the statement that, “Rivada hopes to convince state officials that it can build an “interoperable” emergency responder system in New Hampshire with a portion of the broadcast spectrum, and allow the state to make money by selling some of the remaining space to private companies.” This is not the first time this promise has been made by Rivada Networks. However, the law that created FirstNet makes it clear that any and all funds derived from primary or secondary income for the use of the FirstNet network must be reinvested only in that network.

In the second point, the SWIC answers another question this way, “With New Hampshire building its own network, it then provides the opportunity for local control. We would have local control of the network, rather than passing that network out of state.” There are several issues with this answer as well as many of the others. The first is that FirstNet/AT&T is required by law and the RFP to provide agencies with local control over aspects of the network they will need to manage. The next, greater issue is that while the state is permitted to build out it’s Radio Access Network (RAN) or cell sites, this state RAN must then be connected to what is known as the core of the nationwide network or the brains being set up and run as part of the AT&T contract with FirstNet.

It is unfortunate that the New Hampshire SWIC is expressing information that is not totally accurate and that the SIEC has decided to act based on that information. I hope all the various state-level attorneys have vetted this contract and made sure what New Hampshire is expecting is what will actually be delivered. If Rivada is actually planning to build out its own, new network at its own expense, this is a very costly proposition and tower sites must be found, contracts for rental fees negotiated and signed, and local permits obtained. This process alone can take years. I believe the law is clear that New Hampshire will not see any revenue from this venture that it can use as it sees fit.

I am aware that the New Hampshire Governor has appointed his own review committee, which I believe was wise, and that they are examining the issues. It is also my understanding that the Governor has an engineering background that affords him the ability to more fully understand the technical issues surrounding his eventual decision. Two significant issues for New Hampshire are (1) what the cost will be to the state for the next 25 years when it will have to pay for constant technical upgrades (every 3-4 years) in order to stay in sync with the nationwide FirstNet/AT&T network, and how New Hampshire will assure FirstNet it will not pose a cybersecurity threat to the nationwide network.

Having worked for many years with the national public safety community to develop the best strategy for implementing a new nationwide public safety broadband network, I can say without hesitation that for any state to opt out of the FirstNet/AT&T Network would be an ill-informed decision.

New Hampshire certainly has the legal right to opt out. Rivada Networks certainly has the right to work with the state to provide an alternate state plan and gain approval through the proper channels.  However, I do not believe for a moment that other states will opt out based on New Hampshire’s decision to do so. Every state is unique and will make its own decision. I hope New Hampshire decides to opt in to the FirstNet/AT&T nationwide network. When it was created it was to be a nationwide system, sharing revenue across the states and territories in order to make it a viable and self-sustaining network as is stated in the law. Losing a state such as New Hampshire that cannot sustain the network on its own would be a shame.

Andrew M Seybold
©2017 Andrew Seybold, Inc.