Fitzgerald-FirstNet saga generates many questions, few answers (Part 2)
What is in this article?
Litmus test
But even more important, this case regarding Fitzgerald’s e-mails appears to be a significant litmus test for the fledgling organization, on several levels.
Aside from a handful of potential deployments funded primarily with federal grants via the Broadband Technology Opportunities Program (BTOP), it’s doubtful that FirstNet will be building out its much-anticipated LTE network in earnest before 2015. With this in mind, FirstNet officials have signed numerous non-disclosure agreements with vendors to learn about future product roadmaps, so they have an idea about what capabilities will—and won’t—be available as FirstNet builds out the network.
This is a completely logical approach, but releasing this information would be a violation of the non-disclosure agreements. Not only would this be inherently wrong, the affected vendors potentially would be at a competitive disadvantage, because the entire industry would be able to know their long-term product strategies.
If these Fitzgerald e-mails are released, there’s no telling how many other e-mails will have to be released, and FirstNet’s relationship with potential vendors could change overnight. Instead of sharing what products and capabilities may be down the road, vendors will be limited to talking with FirstNet network planners only about existing functionality, which could lead to unnecessarily higher costs and stranded investments.
One potential benefit of the Fitzgerald episode is that it finally may provide some clarity into some areas that many have questioned since Congress passed the law establishing FirstNet. FirstNet is an “independent authority within NTIA,” but federal lawyers have spent past year-and-a-half trying to determine what that means, according to numerous sources.
In retrospect, the lack of clarity is understandable. Remember, FirstNet was created as part of a much larger tax law passed by Congress, and some language was inserted very late in the process, so it is not surprising that some aspects leave some room for interpretation.
But the questions still remain. As an “independent authority within NTIA,” is FirstNet independent, so it can operate much like a corporation? Or is it a government organization, subject to the rules of other government entities regarding transparency and ethical issues?
My guess is that the intent of Congress was to allow FirstNet to operate as a quasi-government entity to enable it to move as quickly as possible on the vital project of providing a dedicated broadband network for first responders without being unnecessarily burdened by normal government rules.
But which government rules FirstNet has to follow remains unclear at the moment. In fact, some aspects of the enabling legislation seem contradictory, as Story County notes in its filing.
“How can the First Responder Network Authority statute require open and transparent requests for proposals on one hand but then prohibit any and all dissemination pursuant to a FOIA [Freedom of Information Act] request of all documents dealing with FirstNet on the other?” the Story County filing states.
Whatever the ultimate outcome of the Fitzgerald saga, it is important that it be resolved correctly and as quickly as possible. Planning and deploying this network is a massive undertaking, even if everything goes smoothly. If FirstNet officials are distracted by legal issues that sap valuable time and resources, it only promises to delay the buildout of a much-needed broadband system for first responders.