How should states prepare for FirstNet opt-out decision?

Finally, states need to carefully review the permitted use of any and all funds derived from a decision to opt out and construct their own Radio Access Network (RAN). The documents that cover this can be found in the Federal Register, Volume 80, No. 202—dated October 20, 2015—starting on pages 63504 and 63523. Below are several excerpts taken directly from these documents:

“34. FirstNet concludes that any revenues from public-private partnerships, to the extent such arrangements are permitted and different than covered leasing agreements, should be reinvested into the network and that the reinvestment provision of 47 U.S.C. 1442(g) should be interpreted to require such reinvestment.”

Later, on page 63519, you will find this statement:

“More precisely, a State that assumes RAN deployment responsibilities could benefit from, or supplant, these funding sources, by generating and retaining amounts in excess of that necessary to reasonably maintain the particular State RAN through monetization of FirstNet's licensed spectrum. By doing so, the excess value above that reasonably needed to operate and maintain the RAN would no longer be available to help ensure that nationwide deployment, particularly in higher cost rural areas, will occur.”

And finally, on page 63522, is this statement:

“1. FirstNet concludes that, in practical effect, the literal statutory differences between a covered leasing agreement and public-private partnership as used in the Act result in no substantive difference between the Act’s treatment of FirstNet and States that assume RAN responsibility.

“2. FirstNet concludes that any revenues from public-private partnerships, to the extent such arrangements are permitted and different than covered leasing agreements, should be reinvested into the network and that the reinvestment provision of 47 U.S.C. § 1442(g) should be interpreted to require such reinvestment.”

I am not an attorney but the above text seems pretty clear to me. I would suggest that any state that has any doubts about where funds realized from the network within a state go should have its state attorney review the entire section of the Federal Register as cited above. It should be noted that these quotes are legal interpretations from FirstNet, and they have not been challenged yet in a court of law.

Even with a good, solid, state-issued RFP I believe the best course of action for a state is to opt in but negotiate the best deal possible. The winning FirstNet bidder wants to build out as many states as possible for many reasons, including the cost of the build-out, and I don’t believe a vendor building out one or two states will be price competitive with the FirstNet Partner. I believe that, if a state is prepared and has reviewed all of its options including discussions with one or more vendor, or it issued an RFI or RFP but without committing to making a decision until the FirstNet state plan has been received, will then be able to look at all aspects of the situation and make a much better-informed decision, whatever it is.

As I said in one of my earlier Public Safety Advocate columns, it makes no sense to be backed into a corner when it comes to being able to make the best decision possible for your state’s public-safety community, its citizens, and even its elected officials. The worst corner to be backed into is one of your own making!