FirstNet: More Choices than Just Opt-in/out
The First Responder Network Authority (FirstNet) was created by Congress in 2012 and funded with $7 billion to deploy a nationwide wireless network dedicated to public safety. But Congress also attached many strings to FirstNet. One of the major requirements is the creation of a plan to deploy FirstNet in each state. That State Plan — created in consultation with public safety responders in that state — is then presented to the Governor of that State for an explicit decision: opt-in and allow FirstNet to proceed, or opt-out. Technically if the Governor “opts out” the state itself is supposed to build the network in the state, with some financial support from the First Responder Network Authority.
But are opt-in or opt-out the only “options”?
A lawyer’s reading of the Middle Class Tax Relief and Jobs Creation Act of 2012 would say the Governor must either opt-in or opt-out. But there are at least five options:
- Do nothing
- Opt-in Plus
- Opt-in Partner
The most obvious one — and the choice always present in any decision — is simply to do nothing. In other words, suppose the Governor makes no decision? At least one state (Mississippi) has, apparently, made that decision already. It has not accepted its grant (State and Local Implementation Grant Program or SLIGP) funds to conduct outreach and engage its responders in creation of the State Plan.
Presumably other Governors could make the same decision when presented with FirstNet’s State Plan: make no decision at all. Legally, it is unclear what would happen next. Could FirstNet proceed to deploy its network, per its State Plan, anyway? Could the funds FirstNet might normally use to deploy in that state be redirected elsewhere? If so, that state could become a “hole” in the “nationwide” public safety wireless broadband network which FirstNet is supposed to create.
Another, more intriguing possibility, is “opt-in plus”. This scenario is not defined in the law, but is also not forbidden by the law, either. In this case, the Governor would “opt-in”, authorizing FirstNet to proceed deploying in accordance with its State Plan. But the State, cities, counties and other public safety agencies (fire districts, electrical utilities, and private companies such as Boeing) would contribute additional assets to the State Plan, extending and improving the FirstNet network inside that state.
Cities, for example, might have agreements with stadium and arena owners to use the distributed antenna systems (DAS) which distribute wireless signals inside those venues. Such cities might contribute access to these systems — at their own expense — to supplement the State Plan and improve FirstNet’s coverage in those venues. Other opt-in-plus assets could be radio/cell sites, transmission equipment (eNodeB), city-or-county owned fiber optic networks, micro-cell-sites, wireless access points in buildings or vehicles, communications vehicles with radio equipment, and so forth. These could be contributed by governments at all levels, but also private companies such as large manufacturers or refineries with their own fire departments, security patrols and emergency medical responders.
Opt-in-plus presents a whole series of interesting questions:
- Who owns and (more importantly) maintains the assets brought by the partner to FirstNet?
- As upgrades to the nationwide network occur — say, from LTE release 10 to LTE release 11 — who pays the costs of upgrading the contributed assets, and whose employees actually perform the work?
- As coverage needs to be extended to wider geographic regions or inside more buildings, who is responsible to accomplish and pay for that work — FirstNet or the local entity?
- Who gets to use the additional capacity of FirstNet’s spectrum under opt-in-plus? Legally, a tribe or city or county which contributes assets could execute a Spectrum Management Licensing Agreement (SMLA). This gives the entity authority to use the excess capacity of FirstNet’s Band 14 to serve consumers or businesses. A city could, for example, use that excess capacity to give low-cost wireless access to its students and teachers to improve education. A tribe could use that excess capacity to give broadband internet access to its tribal members. But what is the value of this use, and what (if anything) would the city/county/tribe pay FirstNet for the SMLA?
But opt-in-plus has distinct advantages as well:
- We all know $7 billion will never be enough for FirstNet to build a nationwide network. With “opt-in-plus” assets from a wide variety of entities are leveraged to create a more robust network at less cost to FirstNet.
- No public safety agency is obligated to use FirstNet in any circumstance. But by contributing assets, cities, counties and states become partners — they have “skin in the game” — which is a powerful incentive to use FirstNet and help improve it.
At least one more option exists, which I’ll call Opt-in Partner. In this scenario, FirstNet would create a State Plan, but then authorize and fund the state government itself to build the network. Some states — Colorado, Missouri, Michigan, and Indiana as examples — have statewide public safety land-mobile radio networks today. MACINAC — the mid-Atlantic Consortium for Interoperable Nationwide Advanced Communications (there’s a mouthful) is a group of states around Washington D. C. who have publicly stated they’d like to be an early builder of FirstNet. States and regions like these might very well want to take on the responsibility of building FirstNet within their borders.
There are significant advantages to Opt-in-Partner. This option might allow much faster deployments, as some states might be ready-to-go almost immediately. Many state governments already have established relationships with public safety in their borders which they’d leverage to bring a large number of users onto FirstNet. In many cases these states already have billing systems and contracts (or interlocal agreements or interagency agreements) to provide service. Building and providing mobile broadband services could be a natural extension of the existing relationship.
Of course there are issues and problems as well. Under the Federal Acquisition Regulation (FAR) must FirstNet bid the network construction in a state and must the state (if it wants to build) respond with the lowest bid? Or could FirstNet simply decide to do the government-to-government partnership without the bureaucracy of an RFP?
The licensing (SMLA) issue described above is another potential problem — would the state have an SMLA and authority to use or resell the excess spectrum capacity? If so, this reduces FirstNet’s revenue stream. Upgrades and “staying in sync” with the FirstNet nationwide architecture is another problem — if a state decides to upgrade its network from LTE release 10 to release 11, but the nationwide FirstNet is not yet ready (or able) to upgrade, can it proceed? How is interoperability affected?
The bottom line: since FirstNet was created in February, 2012, we’ve always looked at the opt-in/out decision as a simple “one way or the other” decision. But actually there are other options which could actually allow network deployment to proceed faster and result in a more robust network.
9:43 PM PT, 7 February 2014, Revision 2