FirstNet’s latest legal interpretations make opt-out alternative less appealing to states, territories

FirstNet also is subject to the fundamental rule of government: if someone doesn’t like a law, they can always try to change it in Congress or in court. My initial thought is that it would be tough to get Congress to revamp the FirstNet law, but who knows what the politics will be by the time that governors make opt-out decisions.

A legal challenge would be intriguing, because the law was written in a manner that certainly leaves room for debate on several issues, which is why FirstNet has spent more than a year to develop its legal interpretations. However, I question whether any state or territory believes that a legal challenge would be the best use of resources, and it could have negative political ramifications.

A final issue that the governor of potential opt-out states should consider is an intangible one: the role that the state or territory wants to play in relation to FirstNet and the public-safety agencies in its jurisdiction.

If a governor accepts FirstNet’s plan for the state, then the state or territory can be a full-time supporter and advocate for public-safety agencies’ requests with FirstNet—it will be up to FirstNet to come up with the funding and try to meet the requests. If the requests are not met, FirstNet is the “bad guy,” and the state/territory can tell the public-safety agency about other broadband options, knowing that it will not impact its budget.

In contrast, an opt-out state almost certainly will face some awkward situations. If a public-safety agency makes a request that cannot be met, the opt-out state or territory becomes the “bad guy” for not implementing it. In addition, there is a chance that the arrangement will mean the state budget could be impacted by the willingness of public-safety agencies in its jurisdiction to subscribe to the network, so its advocacy for public-safety choice could be met with skepticism.

There also are potential issues in the relationship with FirstNet, as well. Many state officials initially found the opt-out alternative appealing, because they perceived that it would give the state and territory greater control over the public-safety broadband network in the jurisdiction. However, if an opt-out state has to adhere to FirstNet’s network policies, that level of control has been called into question.

Now, it should be clear that FirstNet has not objected formally to states or territories choosing the opt-out alternative, nor should it—doing so would be in direct opposition to the law passed by Congress. However, while staunchly acknowledging each state’s right to pursue the opt-out alternative, FirstNet’s final legal interpretations have made an already difficult opt-out process “about as distasteful as possible,” in the words of one Beltway source.

Indeed, given the financial, logistical and intangible factors involved in the opt-out process, it is difficult to imagine scenarios in which governors would want to pursue this much-debated alternative to accepting the FirstNet plan for their states, unless the rules are changed by Congress or the courts.