New Hampshire committee report outlines regulatory, financial risks associated with ‘opt-out’ decision

One concern raised in New Hampshire and other states contemplating the “opt-out” alternative is the fact that FirstNet has stated that it is not obligated to have AT&T deploy the LTE network in accordance with the state plan after the FCC approves an alternative-RAN plan for a potential “opt-out” state. However, the New Hampshire committee expressed confidence that the FirstNet state plan—the deployment plan available through an “opt-in” decision—could be implemented until 2020.

“During his appearance before the committee, FirstNet CEO Michael Poth indicated that FirstNet has the contractual right to require its vendor, AT&T, to build out in an state for 900 days following delivery of the FirstNet plan,” the report states.

“While FirstNet has not committed to exercising this contractual option, it appears that FirstNet will consider doing so, as long as a state has pursued the opt-out effort in good faith.”

Other notable recommendations in the committee’s report include:

• “A final contract with Rivada should not be conditioned upon Rivada’s ability to monetize excess spectrum. Rivada should be contractually obligated to the state, regardless of whether it is able to monetize any excesss spectrum.”
• “Rivada should be obligated to proceed, regardless of whether the state receives any NTIA grant funding.”
• “Any contract should ensure that the state will have the same access to the FirstNet device and equipment ecosystem, as though the state were part of FirstNet.”
•  “The state should not indemnify Rivada for any failure on the state’s part to provide assets, customers or any other thing. In addition to bonding arrangements, Rivada should indemnify the state for any material failure to perform and as required by the state’s P-37.”
• “The contract should include revenue sharing with the state and reinvestment in the state’s network to as great an extent as possible.”
• “Rivada should provide a separate third-party commercial core for commercial service contemplated by the alternative plan. Rivada should be prohibited from paying for the commercial core using funds received by the state from the federal government or from Band 14 spectrum revenues received by the state.”
• “Rivada should be required to provide evidence of available financing and equity funding before a final contract with Rivada is executed. At a minimum, the final contract with Rivada should be conditioned upon receipt of documentation of financing and funding resources within 30 days of execution of the contract.”