NTIA does not release state funding levels, pushing 90-day FirstNet ‘opt-in/opt-out’ deadline deeper into December

Most governors will have at least until Dec. 21 to decide whether their states and territories will “opt-in” to FirstNet or pursue the “opt-out” option after the National Telecommunications and Information Administration (NTIA) yesterday failed to provide key funding information that would apply to an “opt-out” state.

NTIA did not release the funding level determination (FLD)—the amount of construction-grant money a state or territory could receive in an “opt-out” scenario—as of Thursday, an NTIA official verified late yesterday in an e-mail to IWCE’s Urgent Communications. As a result, the statutory 90-day period for governors to make their “opt-in/opt-out” decisions has not yet started.

Making the situation particularly interesting is the potential timing of the end of the governors’ decision period. If NTIA releases the funding levels today, affected governors would need to make their “opt-in” or “opt-out” choices by Thursday, Dec. 21—the second-to-last business day before the Christmas holiday. If NTIA does not release the funding levels today, it appears that these governors could delay their FirstNet decision until after the Christmas holiday, given the upcoming weekend and the December work schedule.

Governors in 21 states and two territories already have announced their “opt-in” decisions, which means their jurisdictions have accepted the deployment plan provided by FirstNet and AT&T—FirstNet’s nationwide contractor—to build and maintain the radio access network (RAN) within the state or territory for the next 25 years. FirstNet released actionable state plan that enabled such early “opt-in” decision on June 19.

However, governors legally cannot announce a decision to pursue the “opt-out” alternative—making the state or territory responsible for deploying and maintaining the RAN—until receiving official notification that final state plans have been delivered, which marks the beginning of the 90-day decision period for governors.

Under the law that created FirstNet, official state-plan delivery to the governor requires three items:

• Notification that FirstNet completed its procurement process;
• Submittal of the official state plan by FirstNet; and
• The NTIA construction-grant funding level a state or territory can expect to receive, if the state or territory meets other “opt-out” criteria.

FirstNet completed its procurement process with the announcement of AT&T as the nationwide contractor in March, so notification is not an issue. On Tuesday, FirstNet updated the state-plan portals for 50 states and three territories—the South Pacific territories of Guam, American Samoa and the Northern Mariana Islands have not received initial state plans—to fulfill the state-plan submittal requirement. However, the NTIA funding levels are needed to complete the state-plan delivery obligations.