FCC approves order outlining criteria for review of FirstNet opt-out applications

Under the law that established FirstNet, governors will be presented with a final state plan outlining the deployment of a public-safety broadband network within the borders of their states and territories, likely in the fall of this year. After receiving the state plan, the governor has 90 days by law to:

(1) Accept the state plan, allowing the AT&T-built FirstNet plan to proceed in the state;

(2) Take no action, which has the same impact as accepting the state plan; or

(3) Choose to pursue the “opt-out” alternative, which requires the state to build an LTE radio access network (RAN) within its borders that interoperates with FirstNet’s nationwide public-safety broadband network (NPSBN).

States choosing to pursue the “opt-out” alternative must complete their request-for-proposals (RFP) procurement process for its alternative plan within 180 days after the governor’s opt-out decision is made, according to law. After the RFP is completed, the law stipulates that the FCC must review each alternative plan and determine whether the alternative plan will interoperate with the nationwide FirstNet system.

However, the law does not stipulate a timetable for FCC consideration. In its draft order, the FCC proposes an additional 60 days after a state or territory completes its RFP to prepare its alternative plan that will be submitted for FCC consideration.

“With respect to the timing of submission of state alternative plans, we conclude that states should have some additional time beyond the 180-day RFP completion period to assess RFP bids and finalize their alternative plans for Commission consideration,” the FCC’s draft order states.

“Just as the Act recognizes that FirstNet itself will ‘develop’ an RFP, then complete the RFP ‘process,’ and then deliver to states the ‘proposed plan for buildout of the nationwide, interoperable broadband network in such State’—and just as FirstNet did not deliver the state plans immediately upon completion of the RFP process—we believe it reasonable to afford states that have developed and completed RFPs an additional 60-day period to submit alternative state plans to the Commission.”

Upon receiving the alternative RAN plan from a potential opt-out state, the FCC will conduct a 30-day “pleading cycle.” FirstNet, the National Telecommunications and Information Administration (NTIA)—as well as others granted status as an interested party—would have 15 days to comment on the alternative plan. Based on this input, a state then would have 15 days to amend its alternative plan to address any noted issues and/or file reply comments to complete the pleading cycle.

 At the conclusion of this pleading cycle, the FCC would conduct its review, with the goal of completing it within 60 days of the pleading cycle being completed to meet the aspirational 90-day shot-clock goal. Based on the timelines included in the law and the proposed draft plan, an FCC decision about an alternative RAN plan could occur 360 days—almost a full year—after the final state plan is delivered to the governor.

If the FCC does not approve an alternative RAN plan, FirstNet and AT&T will build the public-safety broadband network in the state, as outlined in the FirstNet state plan presented to the governor.

If the FCC approves the alternative state plan, the prospective opt-out state still must complete a review process by NTIA and sign a spectrum-lease agreement with FirstNet before construction on the alternative RAN plan could begin—possibly not until 2019, according to several industry sources. The NTIA has not yet released the criteria it will follow during its review process.