FirstNet officials say deployment speed, cost effectiveness key criteria for opt-out states, territories

SAN DIEGO—States and territories can choose to build the public-safety broadband radio access network (RAN) in their jurisdictions, but they will not be able to keep excess revenues and must meet difficult statutory criteria regarding decision-making and speed-of-deployment timelines, FirstNet officials said yesterday.

During committee meetings yesterday, FirstNet Acting Chief Counsel Jason Karp said the preliminary legal interpretations included in FirstNet’s second public notice—a proceeding that explores the “opt out” alternative that allows states to build out the RAN, instead of FirstNet—are designed to ensure that the much-anticipated public-safety broadband network is available as soon as possible.

“Those interpretations really are focused on creating certainty—for the states, for public safety and for FirstNet,” Karp said. “I think it’s important for everyone to recognize the need to deploy this network in the speediest fashion as is economically possible.

“I think the act is very clear that speed to deployment is one of the primary goals of this whole initiative. So, we have to be very careful in how we interpret some of these provisions, so as not to infuse unreasonable delay, because ultimately—outstanding the state and outstanding FirstNet—the stakeholder who is impacted is public safety and the ability to save lives and utilize this network.”

Because of the “opt-out” process established by Congress in law, any state or territory that pursues the opt-out alternative will delay the buildout of the RAN in its jurisdiction. Karp said. Industry observers acknowledged that the delay likely will be more than a year, based on the following sequential steps outlined by FirstNet yesterday:

• A governor for a state or territory must wait until FirstNet presents its state plan before making a decision whether to pursue the opt-out alternative;
• A governor has 90 days after the state plan is presented to decide whether to accept the plan or opt out, which means the state would try to build out its own RAN. This time period is set by statute and cannot be adjusted by FirstNet, Karp said;
• An opt-out state has 180 days to conduct a request for proposal (RFP) to assemble the resources necessary to build out the RAN in its jurisdiction. Again, this period is set by statute and cannot be adjusted by FirstNet, Karp said;
• Get FCC approval for the RAN plan. If the FCC approves the plan, FirstNet can choose to determine that it no longer has an obligation to plan for the RAN deployment in the state or territory, Karp said;
• After getting FCC approval on the RAN plan, the state or territory must apply to the National Telecommunications and Information Administration (NTIA)—the government body that oversees FirstNet—to get approval to pursue spectrum-lease agreement, so it can access FirstNet’s Band 14 700 MHz airwaves that must be used for RAN operations; and
• Negotiate a spectrum-lease agreement with FirstNet.

Some commenters in the proceeding expressed concern that the 180 days to conduct an RFP is not enough time for a state to conduct the procurement processes necessary a statewide RAN project. Karp acknowledged the challenge but said FirstNet does not have the power to alter the timeline set by Congress.

“We are fully 100% appreciative of those positions, going through an RFP process ourselves,” he said. “But we have little to no flexibility, in terms of what we can do in changing the statutory requirement. I think that’s really important to emphasize.”

While some aspects of the opt-out process established by Congress are clearly established, others are not. For instance, the law does not expressly state that a state or territory opting to build its own RAN must negotiate a spectrum-lease agreement with FirstNet; the law only notes that NTIA approval is needed. However, because FirstNet—not NTIA—holds the license to the spectrum, FirstNet officials believe the step is understood.

If an opt-out state gets FCC approval, NTIA must approve the state RAN plan based on cost effectiveness, comparable completion timelines, coverage, security and quality of service to the FirstNet network. However, the criteria is not outlined in detailed; for instance, whether a comparable completion timeline is judged from the moment the matter is before the NTIA or if it is based solely on the time it would take to complete the project after completing a spectrum-lease agreement.

Some states noted in the proceeding that the notion of what is “cost effective” is not specified in the law, and many have acknowledged that what be cost effective for a state/territory may not be cost effective for FirstNet. Karp said that FirstNet’s preliminary legal interpretation is that “cost effective” judgments should be based on what is best for the deployment and maintenance of the overall FirstNet system.