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The FCC’s small cells order (Declaratory Ruling and Third Report and Order, WT Dk. No. 17-79 and WC Dk. No 17-84, released September 27, 2018) is a big win for the wireless industry.  The FCC largely adopted the industry’s vision that deployment of 5G technology will require hundreds of thousands of so-called “small cell” sites in commercial and residential areas throughout the country and that longstanding state and local wireless siting rules and practices irrevocably impair that vision. To “win the 5G war with China,” the FCC interpreted key provisions of the Communications Act to extend unprecedented federal authority for carrier deployment of small cell sites in the public rights-of-way (ROW), at the expense of state and local governments’ historic land-use authority to manage the ROW.

Broad Interpretation of State and Local Prohibitions – The Commission broadly interpreted Sections 332(c)(7)(B)(i)(II) and Section 253(a) of the Communications Act that limit state or local laws, regulations and other legal requirements that “prohibit or have the effect of prohibiting” the provision of wireless service. In so doing, the Commission emphasized that a state or local legal requirement constitutes an effective prohibition if it “materially limits or inhibits the ability of any competitor or potential competitor to compete in a fair and balanced legal and regulatory environment.” The standard adopted in this order allows that a “requirement can constitute an effective prohibition of services even if it is not an insurmountable barrier.”

Longstanding local prerogatives over managing access to public rights of way were largely swept away. In its carrier-centric interpretations, the Commission significantly limited “the authority of a State or local government to manage the public rights-of-way” and “to require fair and reasonable compensation from telecommunications providers” under Section 253 (c) of the Act.

Cost-Based Fees –A significant wireless industry victory pertains to the FCC’s determinations on allowable compensation for carrier use of the ROW. The FCC ruled that under Sections 253(c) and 332(c)(7) state and local governments are limited to charging fees that are no greater than “a reasonable approximation” of their costs for processing applications and for managing deployments in the rights-of-way. This ruling applies to fees for access to public rights-of-way and for attachments to government-owned property in the rights-of-way including “light poles, traffic lights, utility poles, and other similar property.” While the decision expressly excludes access or attachments to government-owned property located outside the public rights-of-way, the order requires that application or review fees for facilities outside the ROW must be cost-based.

Many local communities had argued that the “fair and reasonable compensation” clause contained in Section 253(c) of the Act embodied the intent of Congress that telecommunications providers could be charged market-based fees for use of public rights-of-way. In rejecting this approach, the Commission found that “although there is precedent that ‘fair and reasonable’ compensation could mean … market-based charges in certain instances, the statutory context persuades us to adopt a cost-based interpretation here.”

The FCC found that Section 253(c) “should be understood as focused on protecting the interest of providers.” This finding contrasts with countless court decisions that hold Section 253(c) is intended to preserve the state and local interests in managing the public right of way; that is, as a counterweight to Section 253(a) that prohibits state or local government action otherwise inimical to the interests of telecommunications carriers.  Relying on its novel view of Section 253(c), the Commission concluded “while it might well be fair for providers to bear basic, reasonable costs of entry, the record does not reveal why it would be fair or reasonable from the standpoint of protecting providers to require them to bear costs beyond that level, particularly in the context of the deployment of Small Wireless Facilities.” (emphasis added)

Under the order, fees violate the Act unless: “(1) the fees are a reasonable approximation of the state or local government’s costs, (2) only objectively reasonable costs are factored into those fees, and (3) the fees are no higher than the fees charged to similarly-situated competitors in similar situations.”

The FCC provided further guidance, setting a presumptively lawful, nationwide fee schedule for small cell applications:  “(a) $500 for a single up-front application that includes up to five Small Wireless Facilities, with an additional $100 for each Small Wireless Facility beyond five, or $1,000 for non-recurring fees for a new pole (i.e., not a colocation) intended to support one or more Small Wireless Facilities; and (b) $270 per Small Wireless Facility per year for all recurring fees, including any possible ROW access fee or fee for attachment to municipally-owned structures in the ROW.”

State and Local Land-Use or Zoning Requirements – In addition to fees, the Commission noted there are other state and “local land-use or zoning requirements” that could restrict small cell deployments such that they “have the effect of prohibiting service in violation of Sections 253 and 332.” In its order, the Commission provides “guidance” on local zoning considerations typically assessed in wireless siting requests.

Aesthetics requirements are not preempted if they are (1) reasonable, (2) no more burdensome than those applied to other types of infrastructure deployments, and (3) published in advance.

The Commission explained that aesthetic requirements that are “reasonably directed to avoiding or remedying the intangible public harm of unsightly or out-of-character deployments” are permissible.  However, if these aesthetic requirements are more burdensome than those applied to “similar infrastructure deployments” they are not permissible because the “discriminatory application evidences the requirements are not” reasonable or “directed at remedying any wireless infrastructure deployment.” Finally, to establish they are reasonably directed to aesthetic harms these requirements “must be published in advance.”

Minimum spacing requirements. – While some spacing requirements (i.e. mandating facilities be sited at some minimum distance apart from certain facilities or locations) “may violate Section 253(a), others may be reasonable aesthetic requirements.”  Therefore, the Commission determined that spacing requirements should be evaluated under the same standards as other aesthetic requirements.

Underground requirements – The Commission ruled that a “requirement that all wireless facilities be deployed underground would amount to an effective prohibition given the propagation characteristics of wireless signals.”  The FCC emphasized that although “undergrounding requirements may well be permissible under state law as a general matter, any local authority to impose undergrounding requirements under state law does not remove the imposition of such undergrounding requirements from the provisions of Section 253.”

Quid pro quo – “in-kind service” – The Commission  found “[a]nother type of restriction that imposes substantial burdens on providers, but does not meaningfully advance any recognized public-interest objective, is an explicit or implicit quid pro quo in which a municipality makes clear that it will approve a proposed deployment only on condition that the provider supply an “in-kind” service or benefit to the municipality, such as installing a communications network dedicated to the municipality’s exclusive use.” According to the FCC, “[s]uch requirements impose costs, but rarely, if ever, yield benefits directly related to the deployment. Additionally, where such restrictions are not cost-based, they inherently have ‘the effect of prohibiting’ service, and thus are preempted by Section 253(a).”

Shot Clocks For Expedited Review – The order seeks to speed approval of small cell wireless facility applications by establishing “shot clocks” applicable to state and local review, building upon the Commission’s 2009 Declaratory Ruling that established shot clocks for co-located (90-days) and new (150 days) macro-cell facilities.  Under the newly established rules applicable to small cells, there is a 60-day shot clock for collocation on preexisting structures, and a 90-day shot clock for new sites. The Commission clarified that for purposes of these Section 332 shot clocks, “attachment of facilities to existing structures constitutes collocation, regardless of whether the structure or the location had previously been zoned for wireless facilities.”

The FCC believes that the adoption of the shot clocks balances the authority states and localities have over review of wireless siting applications with the requirement of Section 332(c)(7)(B)(ii) to exercise this authority “within a reasonable period of time” taking into account the nature and scope of the request.

Shot Clocks and Batch Filings – The Commission also determined that when applications to deploy small cell facilities are filed in batches, “the shot clock that applies to the batch is the same one that would apply had the applicant submitted individual applications.”  In cases where an applicant files a single batch application including “both collocated and new construction of small wireless facilities, the longer 90-day shot clock will apply.” In an “extraordinary” case, a siting authority “can rebut the presumption of reasonableness of the shot clock period where a batch application causes legitimate overload on the siting authority’s resources.”

Violation of the Shot ClocksState or local inaction by the end of the applicable shot clock will function as a “failure to act” under Section 332(c)(7)(B)(v) thereby allowing a carrier to file a court action. Such failure to act will also be considered a “presumptive prohibition” of the provision of personal wireless services in violation of Section 332(c)(7)(B)(i)(II). In such cases, the FCC “expects the state or local government to issue all necessary permits without further delay.” In cases where permits are not issued, the FCC believes “the applicant would have a straightforward case for obtaining expedited relief in court.”

If a case does go to court, the FCC acknowledges the siting authority “will have an opportunity to rebut the presumption of effective prohibition by demonstrating that the failure to act was reasonable under the circumstances and, therefore, did not materially limit or inhibit the applicant from introducing new services or improving existing services.”

In fashioning this regulatory framework, the Commission declined to adopt the “deemed granted” approach strongly advocated by the wireless industry for applications not ruled on within the shot clock period.

Starting of Shot Clock and Incomplete ApplicationsThe Commission ruled thata shot clock begins to run when an application is first submitted, not when the application is deemed complete.” For small cell applications, “the siting authority has 10 days from the submission of the application to determine whether the application is incomplete.”  Once an applicant submits the supplemental information requested by the siting authority the shot clock then resets – effectively giving the siting authority an additional 60 days for review.  For subsequent findings of incompleteness, “the shot clock would toll if the siting authority provides written notice within 10 days that the supplemental submission did not provide the information identified in the original notice delineating missing information.”

Voluntary Tolling of Shot Clock –The order allows the parties to mutually agree to toll the running of a shot clock period, allowing disagreements to be resolved in a collaborative setting if possible.

Shot Clock – Broad ApplicationIn another major victory for the wireless industry the Commission adopted a broad interpretation of 332(c)(7)(B)(ii) requirements that will be applicable to the shot clocks. Under the Commission’s reasoning, “deployment will be kept on track by ensuring that the entire approval process necessary for deployment is completed within a reasonable period of time, as defined by the shot clocks.”

Turning aside arguments by local jurisdictions that this section of the Act – and any associated  shot clocks – should apply only to zoning requirements, the Commission agreed with the wireless industry and found the shot clocks should apply to “all authorizations a locality may require, and to all aspects of and steps in the siting process, including license or franchise agreements to access ROW, building permits, public notices and meetings, lease negotiations, electric permits, road closure permits, aesthetic approvals, and other authorizations needed for deployment.”

Existing Agreements – One key question left unanswered by the Commission’s order relates to existing small cell agreements between localities and wireless carries. As Commissioner Rosenworcel noted following adoption of the order, this decision “interferes with existing agreements and ongoing deployment across the country.”  She emphasizes there are “thousands of cities and towns” with agreements for infrastructure deployment – including 5G wireless facilities – and “many of them could be torn apart” as a result of the Commission’s order.

The next move is up to state and local jurisdictions around the nation. If substantial litigation follows as a result of this order, the “race” to 5G may be slowed to a “crawl” in many parts of the country. Perhaps, the Commission will soon learn that a true consensus-based regulatory scheme that accommodates the interests of not just the wireless carriers but also those of state and local governments – and the citizens they represent – is the best approach to winning the 5G war with China.

To speed deployment of wireless broadband to the nation’s communities, the FCC created a Broadband Deployment Advisory Committee (BDAC) charged with drafting model codes to govern the relationship between wireless carriers and states and local jurisdictions. However, what may be a “model” for carriers looking to speed broadband deployment and maximize profits is not being viewed favorably by local jurisdictions seeking to protect land use from unsightly and overzealous deployment and to receive a fair share of the revenue generated from wireless carriers’ use of local infrastructure.

5G Deployments Will Benefit from Access to Public Infrastructure. Fifth generation wireless network technology – or 5G as it is more commonly known – is a dynamic broadband technology having substantial promise and potential. Wireless speeds and lower latency rates for wireless communications will improve exponentially, leading to innovation and uses that could include augmented and virtual reality, the Internet of Things, smart homes, smart cities and autonomous vehicles.

For this technology to blossom two things are necessary – sufficient spectrum and available infrastructure. It is anticipated that the full implementation of 5G calls for spectrum having super-wide bandwidth that, in turn, can only be transmitted over very short distances, resulting in the need for hundreds of thousands more cells than currently exist. These so-called “small cells” are low-powered base stations that cover much smaller areas than the typical macrocell. Whereas macrocell deployments are typically 70-300 feet in height, small cell transmitters are mounted 30-60 feet above ground, having coverage areas measured in meters, not miles.

The FCC is intent on ensuring that sufficient spectrum is available to meet the 5G needs of the wireless carriers, initiating multiple spectrum rulemakings and planning for auctions that will be conducted during the next several years. The Commission also intends to play a major part in facilitating the availability of infrastructure.

Because of the massive number of cells that will be required for 5G, local community infrastructure including traffic lights, lamp posts and similar structures are needed for a successful broadband deployment. In some residential neighborhoods, new small cells may need to be placed in public rights-of-way in front of homes and apartment complexes. This essential requirement is causing significant debate on the respective needs of carriers and communities – and much activity at the federal, state and local levels.

BDAC’s Work is Wrapping Up. With the hope of developing a framework for broadband deployment on a nationwide basis, the FCC created the BDAC to provide recommendations on how best to accelerate the deployment of broadband. As part of its mission, the BDAC is working on a Model Broadband Code for Municipalities and a Model Broadband Code for States. It hopes to finish its deliberations soon and then propose the codes to the FCC for consideration as nationwide “model” codes.

BDAC’s one-sided tilt favoring wireless carriers proved too much for some local jurisdictions. San Jose Mayor, Sam Liccardo, was initially vice chair of the BDAC’s municipal model code committee. He felt that this working group, heavily weighted with carrier representatives, was working to promote the interests of carriers and not the public. He resigned from the BDAC in January of this year saying that “after nine months of deliberation, negotiation, and discussion, we’ve made no progress toward a single proposal that will actually further the goal of equitable broadband deployment.” The Chief Technology Officer of New York City, the nation’s largest city, withdrew from the BDAC for similar reasons.

A More Balanced Approach Emerges. Six months after Mayor Liccardo’s departure from the BDAC, the City of San Jose reached small cell agreements with three wireless carriers including, AT&T and Verizon. These agreements contain numerous municipally-friendly provisions.  For example, each carrier will be required to comply with the City’s public noticing process before installing a small cell on any of the City’s light poles. In addition, each small cell will have to meet the City’s established design standards, which restrict the size and placement of each installation. Recurring fees to place small cells on city structures are market-based and range up to a rate of $2,500 per site – in stark contrast to “cost-based” rates of less than $50 proposed in other jurisdictions.

As a strong advocate of a collaborative approach to broadband deployment, FCC Commissioner Rosenworcel was so impressed that she posted San Jose’s agreements on the FCC’s website, referring to them as “model” agreements. Commissioner Rosenworcel urges similar carrier-local government cooperation across the country based on the framework of these agreements.

Restrictive State Laws Already in Place. Not all jurisdictions will have the opportunity to apply the San Jose model for the benefit of their residents. Restrictive state laws prevail in many jurisdictions. The wireless industry has been successful in its lobbying efforts to get state legislatures to pass broadband legislation favorable to the industry. These laws restrict the ability of local jurisdictions to protect land use from potential overreaching by wireless carriers or to negotiate market-based rates for carrier access to rights-of-way and local infrastructure.

At last count, some 20 states had adopted such legislation. Common elements of these statewide preemption laws include capped fees for right-of-way use, expedited timelines for processing infrastructure applications, limited scope for local governments to deny requests, presumed application approvals, and limited (or prohibited) zoning authority over attachment to new poles.

Last year, Governor Jerry Brown of California vetoed similar broadband legislation. This decision was instrumental in positioning San Jose to enter into market-based agreements enabling broadband deployment for the benefit of both the wireless industry and the local community. A true win-win situation.

After an extended deliberative process and pursuant to issuance of a Request for Proposals (“RFP”), the First Responder Network Authority, commonly known as FirstNet, selected AT&T as its partner to build, operate and maintain the Nationwide Public Safety Broadband Network (“NPSBN”). The actual terms of the agreement between FirstNet and AT&T remain unavailable to the public for “proprietary” reasons. However, what has been revealed in public statements and in trade press reports may raise questions about whether the AT&T proposal accepted by FirstNet tracks the vision Congress had when it created FirstNet.

Spectrum Licensed to FirstNet Apparently Being Held in Reserve

As mandated by Congress in the Middle Class Tax Relief and Job Creation Act of 2012, (“Act”) the FCC licensed the 758-769/788-799 MHz band to FirstNet on a nationwide basis. This legislation was the culmination of a persistent effort by the nation’s leading public safety organizations to secure a 20 MHz block of “beachfront” 700 MHz spectrum for broadband use by first responders in urban and rural areas across the country. As recognized by the FCC, the “Act charges FirstNet with responsibility for establishing and overseeing a ‘nationwide interoperable public safety broadband network’ operated in this spectrum.” Emphasis on this spectrum.

The AT&T proposal adopted by FirstNet appears to essentially make the AT&T network the heart of the NPSBN with the FirstNet 700 MHz spectrum playing, at best, a supporting role in parts of the country. FirstNet has widely promoted that the entire AT&T network will be available immediately to first responders, with priority and preemption available on the LTE portion of the network. FirstNet’s beachfront spectrum will be utilized as part of the NPSBN where deemed necessary by AT&T. In testimony before Congress on July 20, 2017 (‘Congressional Hearing”), AT&T acknowledged that it will use the 700 MHz FirstNet spectrum where added “capacity” is needed by the AT&T network.

Exactly how much of FirstNet’s licensed spectrum is intended to be incorporated into the NPSBN by AT&T under its contract with FirstNet is a carefully guarded secret. In its Congressional testimony, AT&T represented that it will be “significant.” However, when pressed for a percentage on how much of the geography of the United States will be covered by the build-out of licensed FirstNet spectrum, AT&T declined to provide a specific answer saying this information is “proprietary” and cannot be disclosed – even to Congress.

Rural America

The Act also speaks in terms of “buildout” and “construction” to meet rural milestones. However, parts of rural America will apparently not see NPSBN base stations deployed– on any spectrum. The AT&T plan adopted by FirstNet apparently will rely on deployables – such as cells-on-wheels or COWs – in those areas of rural America in which neither the AT&T network nor the networks of potential roaming partners extend. In some cases, these deployables may take many hours to reach the site of an incident. How this approach meets the intent of Congress in mandating rural milestones for build-out of the NPSBN is an open question.

“Public Safety Grade”

FirstNet and AT&T have not articulated the meaning of a “public safety grade” facility. At the Congressional Hearing, both AT&T and FirstNet struggled in articulating the meaning of this concept, essentially saying that there is no one definition. This lack of clarity is unfortunate since a fundamental purpose of the legislation creating FirstNet was to make sure that public safety would not have to rely on a commercial network that is not sufficiently hardened. Groups such as NPSTC have developed detailed descriptions of what the first responder community considers “public safety grade.”  One only need look at the devastating results of Hurricane Sandy, which knocked out service in 25 percent of the cell towers in its path, to understand the importance of this issue to public safety.

Priority and Preemption

The concepts of priority – first responders go to the head of the line – and preemption – first responders knock other users off the network – under FirstNet’s plan also raise concerns. Following acceptance of its proposal by FirstNet, AT&T raised the issue of whether the FCC’s “net neutrality” policy, which is aimed, in part, at minimizing prioritization of Internet-based traffic could complicate its ability to provide priority and preemption to public safety users on the AT&T network. Congress or the FCC may eventually change the 2015 Open Internet Order, consistent with the proposal recently released by the FCC. Nevertheless, it is striking that AT&T is concerned with the potential impact of net neutrality on first responder priorities under the plan adopted by FirstNet.

As originally intended under the Act, first responders on FirstNet’s 700 MHz spectrum would be entitled to preemption, with the potential that non-public safety or less essential users could lose access to the network during emergency situations. The statute is based on the premise that these “secondary” users would be well-aware of their lower status on the FirstNet spectrum and would be willing to accept this condition in exchange for the right to access the NPSBN.

The proposal to deploy on AT&T’s network flips this concept on its head.  Under the plan adopted by FirstNet, the users that are subject to preemption during an emergency could potentially be members of the public who are depending on AT&T’s network. It is not entirely clear from public statements if AT&T customers will lose access to the entire network and if so, under what circumstances. At a minimum, this is an issue that deserves further clarification.

The spectrum licensed to FirstNet is intended under the Act to be the centerpiece of a hardened NPSBN that serves public safety agencies throughout America. It can be argued that the plan adopted by FirstNet is, in effect, little more than a rebranding of the AT&T network as the NPSBN, which raises substantial legal and policy questions.

FirstNet recently selected AT&T as its partner to build, operate and maintain the Nationwide Public Safety Broadband Network (“NPSBN”).  With AT&T leading the charge, network development appears to be on a fast track. In early June, the initial AT&T/FirstNet Radio Access Network (“RAN”) or coverage plans were made available electronically to all 50 states, the District of Columbia and territories of the United States (referred to as the “states” for purposes of this article). After a brief period for review, comment and consultations, the plans will be finalized and the Governor of each state must decide whether to accept the FirstNet plan or to seek an alternative coverage model through the state’s own Request For Proposal (“RFP”) process.

In evaluating its options, the goal of every state should be to obtain the best possible network coverage for its First Responders. The safety of First Responders and the public must be the primary concern in evaluating the AT&T/FirstNet plan. In order to conduct a reasonably thorough examination, the Governors and their teams must have access to the necessary financial, technical and legal information regarding AT&T’s commitments to deliver the NPSBN.

However, the states currently face a major obstacle in conducting their analysis. They do not have access to the underlying contract between AT&T and FirstNet. There have been numerous trade press reports and FirstNet/AT&T presentations about what the AT&T proposed roll-out will entail (e.g. access to the entire AT&T network, public safety usage targets, priority and preemption). However, no one from a state government is privy to the specific terms of the FirstNet/AT&T agreement. As with most agreements the “devil is in the details,” but the states cannot access the details.

There are countless issues involved in the review of state plans that turn on the conditions of the underlying FirstNet/AT&T contract. For example, how much of the statutory requirement for rural coverage can be satisfied through “deployables” as opposed to permanent hardened infrastructure under the terms of the contract? What is the specific long-term commitment to support discounted pricing for public safety use? Is there a mechanism in place to resolve any disputes that may arise between FirstNet and AT&T.

A fundamental question is whether there is an option for AT&T to “opt-out” of the contract with FirstNet if it fails to obtain a certain number of states “opting-in” or for any other reason. Another basic issue pertains to the penalties that AT&T may have to pay if it fails to meet certain levels of public safety use or “adoption” on the network. Without firsthand knowledge of the AT&T/FirstNet agreement, there is no way of knowing with certainty if there are caveats or conditions that could limit such a requirement?  What happens to the spectrum if there is zero public safety adoption in a given area or insufficient adoption on a nationwide basis? These are significant questions to which states are entitled to an answer.

For AT&T and FirstNet to simply address these and other critical questions an on ad hoc basis is not a prudent approach. The only way for a full evaluation of whether the needs and objectives of public safety are being met is for FirstNet and AT&T to disclose the underlying contract to the states so that they can examine the specific terms of the agreement.

As things now stand, a Governor is being asked to accept a vendor to build and operate the public safety network within his or her state – impacting the lives of First Responders and the public – without firsthand knowledge of the terms under which AT&T will provide the service. FirstNet and AT&T should disclose the terms of their contract pursuant to an appropriately drafted non-disclosure agreement so the Governors and their teams will have a complete picture in reviewing the FirstNet/AT&T coverage plans.

FirstNet was born more than five years ago with the passage of the Middle Class Tax Relief And Job Creation Act of 2012 (“Act”). As we wait for the conclusion of a court challenge by Rivada Mercury to the federal government’s procedures in selecting FirstNet’s partner to build, operate and maintain the nationwide public safety broadband network, one wonders if there is a better way forward. Does FirstNet really need the Federal Acquisition Regulation (“FAR”) procedures to select its partner?

FAR contains the uniform policies and procedures for acquisitions by agencies and departments of the federal government. For many, it is a lengthy, complex and bewildering maze of requirements. For a single-purpose, long-term service provider relationship, the question is whether FirstNet would be better off without the FAR? The FirstNet enabling legislation simply requires FirstNet to issue Request for Proposals (“RFP”) for selection of a vendor to construct and operate the network that are “open, transparent and competitive.” There is nothing in the legislation that requires FirstNet to use FAR procedures to select a vendor.

FirstNet is an “independent authority” within the National Telecommunications and Information Administration (“NTIA”) with an urgent public safety and national security mission. Despite not being an “executive agency” explicitly subject to the FAR, FirstNet decided early on to subject itself to the rigorous hurdles required by FAR. FirstNet “assumed” application of the FAR because it  was “not expressly excluded from application of the Federal Acquisition Regulation.”

Under FAR, FirstNet had expected that a winning bidder for building out the network would be selected by November 1, 2016. However, as often happens in the FAR process, a court challenge was instituted by a disappointed bidder. The dispute could end soon and FirstNet will be able to go forward with its selected winner – AT&T by all public accounts. But what happens if the Court finds that FirstNet did not follow FAR requirements in the selection process? What happens if there are further court appeals leading to endless delay? Delay, delay and more delay is not in the best interest of the nation as FirstNet waits to fulfill its statutory mandate.

At what point should FirstNet even consider turning away from the FAR? FirstNet has gone so far down this road that it may be difficult at this time to forge a better path to a speedy and fruitful result. Nevertheless, FirstNet is not obligated to follow FAR procedures and it is free to craft its own guidelines for selection of a partner subject only to the “open, transparent and competitive” standard of the Act. There is nothing in the legislation that prevents FirstNet’s procedural guidelines from being simple, transparent and straightforward.

When it was first created, many had hoped FirstNet would act like a quasi-private entity with the ability to move swiftly, unburdened by bureaucratic quicksand. Unfortunately, as those who have followed FirstNet’s early history are well aware, that has not been the case. Perhaps out of necessity FirstNet will need to find a new way to “do business.” Just perhaps, the time is soon coming when FirstNet will find it best to sit at the negotiating table much like a private entity and negotiate a deal that is in the best interest of the country, without the weight of the FAR on its shoulders. While at the outset, FAR may have been considered a “safe” way forward, as demonstrated by the pending court challenge it is not necessarily the “best way” for FirstNet.

The State of New Hampshire has taken a bold step in its dealings with FirstNet that could serve as a model. Will other states (and territories) follow the Granite State’s lead?

In a few short months, FirstNet is expected to select a vendor to build, operate and maintain the Nationwide Public Safety Broadband Network (“NPSBN”). After some consultation, FirstNet and its newly selected partner will present a plan to each state for construction of a radio access network (“RAN”) consisting of towers, backhaul and other infrastructure within that state. Each state has the option of accepting the FirstNet plan or developing its own RAN plan as an alternative.

For any state that may want to pursue an alternative plan, there are procedural hurdles and regulatory approvals that must be obtained, but the principal challenge may well be timing. From the date the FirstNet plan is presented to a state, the Governor will have 90 days to decide whether to accept this plan or opt-out and pursue an alternate 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 within this 90 day window. States that fail to provide notice of an opt-out decision will lose that opportunity. Making an opt-out decision without any real alternative to the FirstNet plan in front of a state’s Governor would be difficult to say the least.

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

However, the State of New Hampshire may have found a formula for addressing this timing challenge. Rather than trying to develop a plan under an almost impossible “shot clock,” New Hampshire took the pro-active approach, issuing an RFP in December 2015 and recently selecting a vendor –Rivada Networks–for the purpose of creating an alternative plan to be compared to the FirstNet plan.

New Hampshire has not decided to opt-out. However, with a vendor in place to evaluate the FirstNet plan and develop an alternative proposal before the Governor’s decision, New Hampshire has positioned itself to make a meaningful choice. The question now is how many other states (or territories) will follow this path?

The recent negative article on FirstNet that appeared in the Atlantic, “The $47 Billion Network That’s Already Obsolete” is an inaccurate critique of the First Responder Network Authority, otherwise known as FirstNet. To say the network is “obsolete” is so far off the mark that it is laughable.

There is little doubt that a nationwide public safety broadband network is needed to bring state-of-the-art technologies to first responders across the country. FirstNet is an outgrowth of the tragedy of 911 and the devastation of Hurricane Sandy which demonstrated the need for interoperable broadband communications among public safety agencies and personnel. Understandably, the Atlantic article was met by a unanimous backlash from public safety officials and associations supportive of FirstNet’s mission.

FirstNet was created by an Act of Congress in 2012 and contrary to the implications of the Atlantic article is led by some of the most dedicated public officials anyone could imagine. These individuals have worked tirelessly to bring the nation a public safety communications network that will serve our country for generations to come.

FirstNet is currently in the process of selecting a private sector partner to build, operate and maintain the network. After that selection, individual buildout plans for a Radio Access Network (“RAN”) will be presented to each state (and territory) for review. Together, these plans are the building blocks for a nationwide network, which under the law that created FirstNet must include substantial rural coverage.

Just how rural coverage is addressed remains a major issue for FirstNet. In order to reduce costs of the network, there has been much talk about FirstNet meeting its rural coverage requirements with deployables, such as drones, “cells on wheels” and balloons, rather than with permanent facilities spanning rural America. Some believe that such an approach, favoring urban areas at the expense of rural coverage, is simply not sufficient under the law. States will have the opportunity to develop their own RAN if they are not satisfied with the FirstNet approach. Time will tell whether the States and FirstNet can come together on the critical issue of rural coverage. So, while FirstNet certainly does not deserve any criticism for its efforts to date, let’s not start the victory parade just yet.

Another marker passed on the FirstNet roadmap last week as Capability Statements from bidders interested in building, operating and maintaining the Nationwide Public Safety Broadband Network were submitted March 31, 2016. Final bids are due in less than two months, on or before May 13, 2016.

FirstNet has clarified that submission of a Capability Statement is not a prerequisite to submission of a bid. However, it is unlikely that any serious bidder would choose not to take advantage of the Capability Statement process, which is designed to provide feedback from FirstNet prior to the submission of a nationwide bid.

The significant interest generated by its Request For Proposal (“RFP”) prompted FirstNet to extend the initial due dates for the Capability Statements and the bid submissions. FirstNet received over 400 questions seeking clarification of various parts of the RFP.  In record speed, FirstNet provided answers to questions on a variety of topics including vendor payments, financial sustainability of the network, rural coverage requirements, priority access and state plans.

Perhaps the best indication of the interest generated by the RFP is the number of companies requesting inclusion on a partner/teaming list. This list identifies interested entities looking to be part of a nationwide bid, as suppliers of products, services, and/or facilities. Over 600 entities are listed, including integrators, cable TV companies, rural telecommunications providers, electric utilities and numerous consultants. While there is no guarantee these entities will be included in any nationwide bid, the large number of companies looking to participate underscores the high interest in the FirstNet opportunity.

Of course, the key to success is for a prime bidder to come forward with both the ability and the resources to meet all of FirstNet’s objectives for the network. From recent trade press reports it appears that FirstNet will receive a number of meaningful competing bids. Stay tuned.

There could be two significant historical events this November. On November 8, 2016 the American people will elect the 45th President of the United States. One week earlier, on November 1st, the First Responder Network Authority, commonly referred to as FirstNet, hopes to select a winning bidder to construct, maintain and operate a nationwide public safety broadband network (“NPSBN”).

Purpose: The NPSBN is intended to bring our nation’s public safety personnel into the 21st century, giving them access to state-of-the-art broadband capabilities including high speed data and video on a hardened network designed to operate under emergency conditions. FirstNet is licensed for 20 MHz of 700 MHz “beachfront” spectrum. A successful launch of the network will enable a highly informed, coordinated response to public safety events including medical emergencies, natural disasters and acts of terrorism.

The FirstNet RFP. Almost four years after Congress established FirstNet through enactment  of the Middle Class Tax Relief and Job Creation Act of 2012, FirstNet recently released its long-awaited Request for Proposal (RFP) looking for a commercial entity to build and run the network. Although only one nationwide bid will be selected, no one entity is capable of meeting all of FirstNet’s objectives.  To achieve a truly nationwide network, prime bidders will need to form partnerships, including those with rural telecommunications service providers and other rural America infrastructure owners, such as electric cooperatives and oil and gas companies.  The selection process will be conducted over four phases with only the most competitive bids surviving to the final phase.

Focus on Capability Statements. In the first phase, interested parties must demonstrate they are capable of performing necessary work by providing a Capability Statement. These statements are due by March 17, 2016.

Capability Statements will be evaluated based on five factors:

  1. the ability to obtain public safety use and adoption of the network;
  2. the ability to provide coverage and capacity nationwide using the NPSBN and other spectrum;
  3. partnerships with rural telecommunications providers;
  4. the ability to monetize the network, which may include a secondary user customer base in addition to primary public safety users; and
  5. the financial ability to develop and sustain the network.

Once this threshold level is met FirstNet’s review of the competitors will intensify.

Submission Date for Qualified Bidders.  Following FirstNet’s analysis of the Capability Statements, those deemed best qualified will then be invited to submit a proposal. Proposals in response to the RFP are due April 29, 2016. A proposal must address numerous objectives, including nationwide coverage, financial stability, competitive pricing, cybersecurity solutions and construction milestones for both urban and rural areas.  The winning bid will be based on the proposal delivering the “overall best value” to FirstNet based on these objectives and certain defined technical requirements.

If all goes according to plan, November 2016 could be a very historical month.