Here’s the aspect of FirstNet’s independence that should matter most to public-safety agencies, potential offerors

Almost from the moment FirstNet was created, questions have been raised about the meaning of its description as an “independent authority” within the National Telecommunications and Information Administration (NTIA). Is FirstNet a government entity, because it is housed within NTIA, a government agency? Is it as independent as a commercial enterprise, free to act nimbly to market movements?

FirstNet’s “independent authority” status puzzled even federal lawyers during the organization’s early days—a fact noted at IWCE 2016 by Anna Gomez, who was NTIA’s deputy assistant secretary for communications and information when FirstNet was created in 2012.

“We had no idea [what the ‘independent authority’ description implied],” Gomez said during the “Evolution of FirstNet” workshop. “We thought ‘independent authority’ meant very independent. It took a lot of discussions with lawyers to figure out ‘Well, it’s not as independent as you might think.’

“That was a little disappointing, to say the least. When we recruited the board members, we said, ‘Oh, you’ll be independent.’ Some of them were less than happy when, eventually, we came back and said, ‘Our lawyers are telling us that you still are a federal entity subject to generally applicable rules and regulations, other than where the statute specifically exempts you from those requirements.”

In its earliest days, the Sam Ginn-led FirstNet acted much like a commercial startup. Things were moving quickly—a network design was proposed during the first meeting—there was minimal transparency, and Ginn and others frequently referenced FirstNet as “the company.” But things changed considerably during its second year, as FirstNet was told that it would have follow federal-government rules for a number of items, from hiring personnel to sending e-mails, in the wake of the controversy surrounding accusations by former board member Paul Fitzgerald.

When Sue Swenson became chairwoman almost two years ago, FirstNet began to look even more like a federal entity, with in-person attendance being allowed at board meetings, board committee meetings opened to the public, and the acknowledgement that FirstNet’s procurement would follow Federal Acquisition Regulation (FAR) laws.

But there was a subtle difference. On each of these decisions, FirstNet officials maintained that they were not required to follow these federal rules and guidelines, but they chose to do so, because they felt like it was in the best interest of public safety and FirstNet.

Should FirstNet be independent? There are a lot of very interesting legal arguments that could be made regarding the question. But the reality is that legal independence definition could change on the whim of a Congress, a court ruling or personnel turnover on the legal team in the U.S. Commerce Department.

That’s not exactly solid footing, particularly when trying to forge a long-term agreement with a contractor to build and operate the network. Moreover, it would have been very easy for FirstNet to spend so much time on this legal debate that the organization would be distracted from its most important task at hand: building a self-sustaining broadband network for public safety.

But real independence typically is not given; it is earned. By fulfilling its mission of implementing a self-sustaining network and building an organization that does not require additional federal funding, FirstNet promises to gain a level of practical independence that arguably is greater than any independence that could be provided by law or policy.