With such potential budgetary and policy impacts, “an argument can be made that any decision by the Governor to either opt in or opt out of the FirstNet State Plan implicates legislative approval authority,” according to the memorandum.

“There is no explicit delegation of decision-making power to the governor in either the Vermont statutes or the Vermont Constitution authorizing him to act unilaterally here,” according to the memorandum. “On the contrary, state statute establishes a mechanism for legislative review of such policy decisions. This mechanism aligns with the Vermont Supreme Court’s interpretation of the proper roles of the legislative and executive branches of government.

“Therefore, a decision by the governor to either opt in or opt out, without the opportunity for legislative review, would unconstitutionally contravene the legislative authority of the General Assembly. The fact that federal law tasks the governor, not the General Assembly, with making the FirstNet decision would not likely change this legal outcome.”

In legal interpretations published more than two years ago, FirstNet stated its belief that the law requires governors to make the final “opt-in/opt-out” decision, even if they must secure or seek additional approvals or advise within the state.

“FirstNet … believes, regardless of whether a governor may need to seek certain approvals prior to making a decision for the state, pursuant to the Act, the final state decision regarding a FirstNet-proposed state plan continues to ultimately rest with the governor,” according to a FirstNet legal interpretation published in the Federal Register on Oct. 20, 2015.

In addition, the same legal interpretations noted that FirstNet does not have the authority to grant extensions to the 90-day period that Congress explicitly established for governors to make their “opt-in/opt-out” decisions—a position that FirstNet officials have consistently stated for years.

Although the official deadline for the governors’ “opt-in/opt-out” decision is Dec. 28, officials for Rivada Networks—the most active and outspoken vendor in alternative-RAN procurements conducted by states and territories to date—repeatedly have stated that governors have an option that effectively will give them more time.

If a governor elects to pursue the “opt-out” alternative, the state has 180 days to conduct an RFP for a potential alternative-RAN vendor to develop plans to be submitted to the FCC for the first stage of “opt-out” review. If the state conducts the procurement and does not like the resulting bids, the state could choose not to submit a proposal to the FCC, and the state RAN would be built in accordance with the FirstNet/AT&T state plan that would be the result of an “opt-in” decision.

FirstNet officials have stated that organization would be committed to deploying the RAN in states in accordance with the state plan until that state receives FCC approval in the first stage of the “opt-out” review process. After that point, FirstNet’s deployment in the state may not mirror its state plan, according to FirstNet officials.