Opt-out scenarios from FirstNet appear increasingly tough for states, territories

SAN DIEGO—States and territories have the legal right to opt out of the FirstNet buildout of a nationwide public-safety broadband network, but the latest proposed legal interpretations regarding the process have many wondering whether the opt-out alternative realistically is a practical alternative.

Now, there is no question that the governors of states and territories have the legal right to choose the opt-out route, which means that the state or territory would build out the radio access network (RAN) in a way that would work seamlessly with the broader FirstNet nationwide LTE system. It is stated in the law establishing FirstNet, and every FirstNet official seems to bend over backwards in defending this right to anyone who asks a question about it.

FirstNet Chairwoman Sue Swenson is the most prominent member of this group, but she is quick to note that opt-out states and territories must be prepared to assume considerable responsibilities. In fact, when asked about FirstNet’s top priority outside of the procurement process, Swenson said it is the need to engage the people in each state or territory advising the governor about the opt-out decision.

“I think it’s important that we share with people, ‘It’s fine to do that [opt out], but let me give you a checklist of the things you’ll have to do, so that you can make an informed decision about how you do that,’” Swenson said during an interview with IWCE’s Urgent Communications during the Public Safety Communications Research (PSCR) Broadband Stakeholders Meeting last week.

By any measure, it’s a daunting checklist—one made even more difficult by statutory deadlines and FirstNet’s preliminary legal interpretations. To review, the sequential steps in the opt-out process outlined by FirstNet are:

• 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;
• 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;
• Get FCC approval for the RAN plan.;
• After getting FCC approval on the RAN plan, the state or territory must apply to 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.

This process is difficult, even before a state or territory reaches the first bullet point. If a state or territory wants to explore the opt-out option, it basically has to pay for any such data gathering or study with its own funds, because the National Telecommunications and Information Administration (NTIA) does not let states or territories will not let the state planning grants be used for these purposes.

Giving states just 180 days to conduct an RFP for a statewide RAN buildout is almost unfair, a fact that FirstNet officials acknowledge. However, that is timeline dictated by the law, so FirstNet cannot change it. With this in mind, any state or territory pursuing the opt-out alternative actually may begin its RFP work early and utilize the entire 90-day decision period, even if the choice already has been made internally.