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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.

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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.

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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.

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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?

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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.