States push back against preliminary FirstNet legal interpretations on opt-out alternative

Several states and territories were outspoken in their criticism of FirstNet’s preliminary legal interpretation of opt-out options, asking for detailed clarity in FirstNet’s state plans and questioning whether the federal entity is legally authorized to take some of the stances its staff has proposed.

In its Second Public Notice that examines of the relationship between FirstNet and states, FirstNet acknowledges that states and territories have the option to “opt out,” which means the state would be responsible for deploying the public-safety LTE radio access network (RAN) within its jurisdiction that would interoperate with the nationwide FirstNet system. If a state does not choose the opt-out route, FirstNet is obligated to deploy the public-safety broadband system in the state and assume all maintenance costs.

But several states and territories expressed concern that many of the preliminary legal interpretations proposed by FirstNet staff—the board has not made any policy decisions on the issues—effectively would preclude states from seriously considering the opt-out alternative.

Under the law, FirstNet is required to present its plan to deploy a public-safety LTE network within the jurisdiction of the state or territory to each governor, who then has 90 days to make the opt-in/opt-out decision. However, multiple state commenters expressed concern that the proposed FirstNet interpretation in the Second Public Notice would allow FirstNet to alter the plan after submitting it to the state.

“FirstNet must consider its state plan, when delivered, [to be] a binding contract rather than a simple promise,” according to the State of Washington filing. “Unless FirstNet considers the state plan a binding contract, then the entire consultation process is relatively meaningless.”

In addition, several states indicated they are worried that the proposed interpretation would let FirstNet submit its state plan without detailed pricing information. Such information should be a mandatory part of the FirstNet plan, so the governor can make an informed opt-in/opt-out choice, according to the state commenters.

“Section 6302(e)(B) requires FirstNet to provide ‘details of the proposed plan,’ the Rhode Island filing states. “It is an elementary tenet of contract law that contract price is a not merely a detail, but a material element of the contract. FirstNet's interpretation of the act, which forces a state to enter into a contract without knowledge of this material element, could likely result in a judicial finding that this section of the act is an unconscionable contract of adhesion.”

Multiple state comments noted that the sequence of steps a state must follow to exercise its opt-out should be revisited. If a governor chooses the opt-out route within the 90-day period, the state has 180 days to conduct an RFP and submit its RAN plan to the FCC for consideration. After clearing that hurdle, the potential opt-out state would ask the National Telecommunications and Information Administration (NTIA) for permission to apply for a spectrum-lease agreement from FirstNet.

However, multiple states noted that securing the terms of the spectrum lease should be done before FirstNet submits its state plan, because (1) the state cannot operate a RAN network without access to spectrum, and (2) the terms of the spectrum lease likely will impact whether choosing the opt-out alternative is a financially viable alternative.