Will Your State Be Ready When FirstNet's Plan Arrives?

Date: Oct 17, 2016

Law360, New York (October 17, 2016, 3:51 PM EDT) -- 

The First Responder Network Authority (FirstNet), established through the Middle Class Tax Relief and Job Creation Act of 2012, is an independent authority housed within the

National Telecommunications and Information Administration (NTIA) and licensed by the Federal Communications Commission for a nationwide public safety broadband network (NPSBN). The act gives FirstNet broad responsibilities in the development of the NPSBN but at the same time allows states (and territories) to play a more active role within their jurisdictions if they wish. Some states are now taking preliminary steps to position themselves for deciding between FirstNet’s proposed network coverage and alternative coverage plans for their states.

The NPSBN is intended to provide state-of-the-art broadband communications, including video and high speed data, for police, fire, emergency medical and other first responders. FirstNet’s enabling statute calls for consultation and collaboration with the states and territories in the development of the network, but at the same time it creates certain tensions at the national and local levels. FirstNet has the responsibility to deploy a network that is nationwide in scope and naturally is concerned with costs, coverage and sustainability on a nationwide basis. At the same time, however, each state has a primary concern that the network provide services and coverage that meet the unique public safety demands of that state, including coverage in less densely populated or geographically remote areas.

In order to reconcile these potentially competing interests, Congress crafted a balanced regulatory scheme. It is both complex and time sensitive. With this in mind, some states are now taking proactive steps to better position themselves for future dealings with FirstNet.

In early November, FirstNet is expected to select a vendor to build, operate and maintain the NPSBN. Based in part on consultations with the states, FirstNet and its to-be-selected partner will present a plan to each state (and territory) for construction of a radio access network (RAN) consisting of towers, backhaul and other infrastructure within that state. Under the qct, each state then has the option of accepting the FirstNet plan or developing its own RAN plan as an alternative.

If a state chooses to pursue its own plan it must be prepared to navigate the regulatory process established by Congress. First, the state must evaluate the FirstNet plan to see if it adequately meets the public safety needs of the state. If a state opts to pursue an alternative plan, the plan must demonstrate technical interoperability with the NPSBN and be approved by the FCC. If the state makes a satisfactory technical demonstration to the FCC, it must then obtain approval from NTIA to negotiate a spectrum lease with FirstNet. If the state is seeking construction funding, it will also need to receive approval from NTIA.

Before a state may negotiate a spectrum lease with FirstNet, NTIA must find that the state’s alternative plan is “cost effective” and that it has “comparable security, coverage and quality of service” to the FirstNet plan. The extensive legal, financial and technical considerations require that a state have experts in place to evaluate FirstNet’s plan and to consider potential alternatives in a timely manner.

Any state interested in pursuing an alternative plan must be prepared to move quickly. In fact, the principal challenge may well be timing. From the date the FirstNet plan is presented to a state, the governor will have only 90 days to decide whether to accept the plan or to “opt out” and pursue an alternative plan that offers a better approach for meeting the state’s public safety coverage requirements. If a state decides to opt out, it must notify the FCC, NTIA and FirstNet of its decision within this 90-day window. States that fail to provide timely notice of a decision to opt out will lose the opportunity to develop an alternative coverage plan and, by default, must accept the FirstNet plan.

In the event a state does file an opt-out notice, it must then develop and complete within 180 days requests for proposals (RFPs) for the construction, maintenance and operation of the RAN for the State. Completing an RFP and developing an alternative plan in a maximum of 270 days from delivery of FirstNet’s plan is a significant challenge.

To meet this challenge, some states have decided not to wait until the FirstNet plan arrives. The state of New Hampshire was the first to address the strict time requirements of the act. Rather than trying to develop a plan under an almost impossible “shot clock,” New Hampshire took a proactive approach, issuing an RFP in December 2015 for a vendor to create an alternative to the FirstNet plan.

Rivada Networks was selected and has entered into an exclusive contract with the state. This approach will allow the vendor sufficient time to develop an alternative plan “up front” that can be compared to the FirstNet plan once it is available. However, for now, Rivada will not be providing these services to other states. Following its selection in New Hampshire, Rivada, who also bid on the nationwide RFP issued by FirstNet, announced that it does not intend to bid on any other state RFP while it awaits FirstNet’s decision on selection of a partner.

The New Hampshire-Rivada contract contains a “no cost” provision that is particularly advantageous to New Hampshire. In exchange for being given the exclusive right to build the network should New Hampshire decide to opt out, Rivada agreed to develop the alternative plan without cost to the state. Rivada will supply a detailed engineering and design plan for the New Hampshire portion of the public safety network, as well as a financial model and a sustainability plan, all at no cost to New Hampshire.

New Hampshire took these steps because it wants to be prepared in the event the FirstNet plan falls short in meeting important public safety needs of the state, including coverage requirements in rugged terrain and in rural areas. The state notes: “New Hampshire presents unique challenges, including an international border, vastly rural areas, mountainous terrain, and a more densely populated southern metropolitan area. These challenges present a concern regarding the FirstNet program's statewide capabilities.”

Undoubtedly, other states with similar coverage concerns for rural and difficult to serve areas or, for other reasons, will want to be prepared to make an informed, comparative evaluation when the FirstNet plan arrives. In recent weeks, Alabama and Arizona have issued their own RFPs looking for a vendor to develop an alternative coverage model to the FirstNet plan. While the Alabama RFP is somewhat similar to New Hampshire’s, the Arizona RFP takes a different approach.

Arizona included in its RFP a more detailed discussion of technical and user information, including coverage maps and statistics on First Responders and devices. This data is likely the same information that FirstNet is using to develop its plan. Under the Arizona RFP, a winning bidder will not be selected unless the governor decides to opt out of the FirstNet plan. This approach provides the state maximum flexibility in selecting from more than one proposed alternative plan for direct comparison to the FirstNet plan. With multiple alternate proposals already in place when the FirstNet plan arrives, the state will have a real basis for comparison and an enhanced opportunity to select the plan that best meets the state’s unique public safety needs.

None of these states has decided to opt out, and the actual decision to opt out will not be required until FirstNet steps-up and presents its plans for state-by-state deployment. However, all of these states are taking measures to position themselves for evaluating alternatives to the FirstNet plan. States that wait to react until the FirstNet plan is in-hand may well find that it is too late to assess or develop a meaningful alternative.

The deployment of a Nationwide Public Safety Broadband Network is critically important to the entire country and to each state and territory, respectively. States and territories interested in fully considering viable options for a state-of-the-art broadband public safety network within their borders would do well to consider their alternatives now. Waiting further may limit or eliminate any option but FirstNet’s.