FirstNet’s Proposed “Public Safety Entity”, “Rural” Definitions Draw Concerns

First Responder Network Authority (FirstNet) proposals for defining “public safety entities” and “rural” are coming under fire from some stakeholders, including the Association of Public-Safety Communications Officials-International and some states.

Regarding the definition of public safety entities, critics said FirstNet should adopt a narrow definition that includes only traditional first responders.  As for the definition of rural, some states said they were concerned that it was too narrow and might leave out areas from FirstNet coverage; some also said they were worried about separately defining “wilderness” and “frontier.”  However, others, including utilities, states and localities, and industry entities, said they supported the definitions of public safety entities and rural proposed by FirstNet.

Some entities also said that states should play a role in determining who can use the network and how to define rural.  Comments were filed by yesterday’s deadline in response to a public notice released in September (TRDaily, Sept. 17) seeking comments on preliminary interpretations and other issues regarding FirstNet’s authority under the Middle Class Tax Relief and Job Creation Act of 2012, which created FirstNet.  Yesterday was also the deadline for responses to a FirstNet comprehensive network solution request for information (RFI) soliciting views on a wide range of matters ahead of a draft request for proposal (RFP) scheduled for release by March 2015.

FirstNet released the filings submitted in response to the public notice, but it did not release those submitted in response to the RFI. There were 63 comments filed in response to the public notice, and 122 in response to the RFI, FirstNet said

“This was a success for both FirstNet and our stakeholders,” acting FirstNet General Manager TJ Kennedy said in a news release today. “Many of the items discussed in both the RFI and the Public Notice could have significant impact on the economics of the network and the various solutions proposed by vendors.  FirstNet looks forward to thoroughly reviewing and evaluating the responses, as the information will play a significant role in the drafting of the comprehensive network RFP.”

The public notice solicited comments on a number of issues, including the definition of public safety services and which entities and people should be able to use the network; the core network and radio access networks (RAN); the definitions of rural and “substantial rural milestones”; the RFP process; the leveraging of existing infrastructure; excess network capacity and network infrastructure fees; user fees; and leasing agreements.

The proposed definitions of public safety entities and rural drew considerable criticism.  FirstNet’s preliminary interpretation was that there should be three baskets of users: public safety entities, secondary users that may access the network but don’t provide public safety services, and other users.

As for the definition of public safety entities, FirstNet’s preliminary interpretation was that it should use a definition of those services that fall under the definition in the 1934 Communications Act, as amended, or the Homeland Security Act of 2002. FirstNet said it preliminarily concluded “that an entity may offer other services in addition to a non-de minimis amount of public safety services and still qualify as a public safety entity.”

That would mean that those entities can include utilities, airport operations, transportation departments, hospitals, and entities that protect city infrastructure, FirstNet said.

The public notice proposed that rural should have the same meaning as “rural area” in the Rural Electrification Act (REA) of 1936, as amended, or “a city, town, or incorporated area that has a population of less than 20,000 inhabitants and is not adjacent and contiguous to an urbanized area that has a population of greater than 50,000 inhabitants.” FirstNet also sought comment on whether it “should define a separate term for a frontier or wilderness area that would bound the term rural in connection with provisions of the Act.” It asked “whether a population density below a five person per square mile or lower standard should be considered frontier, rather than rural, for purposes of the Act.”

In its comments, APCO said it “strongly disagrees with FirstNet’s analysis of the types of nationwide public safety broadband network (NPSBN) users that would fall under the definition of a ‘public safety entity.’ FirstNet’s interpretation focuses on determining the broadest legally defensible interpretation at the cost of overlooking the fundamental premise of the Act itself. While recognizing that FirstNet seeks to define its legal boundaries as a prerequisite to developing policies, APCO is concerned that an overbroad interpretation risks defeating the purpose of the act: serving our nation’s first responders.”

APCO added that it “disagrees with FirstNet’s interpretation that an ‘entity may offer other services in addition to a non-de minimis amount of public safety services and still qualify as a public safety entity.’ Given the complexity of the definition for ‘public safety services’ in Section 6001(27) and that the types of entities providing such services are elements of each of the definitional parts, it makes sense to read the definitions for entities and services together, rather than conjure the ‘non-de minimis’ concept. …  FirstNet compounds this overbroad interpretation by concluding that ‘an electric utility could come within the definition of public safety entity.’ APCO must strongly disagree. An electric utility, or any equivalent entity, does not fall within the definition of public safety entity. Any conclusion to the contrary would be a plainly wrong reading of the Act’s provisions, and a stark departure from Congress’s intent to create a dedicated network for first responders.”

The comments were drafted by Jeff Cohen, APCO’s chief counsel- law and policy and director-government relations who worked on the Middle Class Tax Relief Act as a Democratic aide on the House Energy and Commerce Committee.

AT&T, Inc., said that it “believes that Congress unambiguously intended for there to be only two categories of users on the network: (1) public safety entities (which are the primary users of the network) and (2) consumers (also known as non-public safety entities, which may access the network on a secondary basis). The text, purpose, and structure of the Act indicate that Congress intended to limit the scope of primary users—i.e., public safety entities— to traditional first responders: law enforcement, firemen, and EMS providers.” The broader definition proposed by FirstNet “could also invite chaos by undermining the NPSBN’s ability to route essential communications during spikes in network use in the event of crisis.”

But the National Public Safety Telecommunications Council, a federation that includes representation of APCO and other major public safety groups, said it “concurs with providing greater flexibility than the definition in Section 337(f) of the Act alone.” It said that “the broader definition as set forth in Section 2 of the Homeland Security Act of 2002 … provides for a broader inclusion of public safety entities having access to the FirstNet NPSBN.”

“Even within the public safety category the same individual may warrant a higher priority at some times than at others,” NPSTC said. “The requisite prioritization for a given user can vary across different incidents and even at different times within the same incident.”

As to the eligibility of non-governmental entities, NPSTC said that “the mission of the entity should be examined to determine if they are eligible to use the network and under what level of priority. For example, a private ambulance service should have a comparable mission in assisting the public as that of government-owned emergency medical service ambulances. Normally, a non-governmental entity providing public safety services would have a sponsoring local or state governmental agency. NPSTC recommends that FirstNet set threshold parameters and then coordinate with the relevant state and/or local governmental agency to approve an NGO request for access to the network.”

The Washington State Interoperability Executive Committee (SIEC) said that it agreed with a broad definition of public safety entities and said that FirstNet, as it consults with each state, should “agree upon which kinds of governmental, non-governmental and private entities and users would be allowed to use the network.”

As for a definition of rural coverage, the Washington SIEC said that during the consultation process, states should be permitted “to help specify which areas are rural for setting coverage milestones and other purposes required by FirstNet.” It questioned why there is a need to define frontier, but it said that states should be permitted to help specify those areas as well “for setting coverage milestones and other purposes required by FirstNet.”

The state of California said that FirstNet has the authority “to consider a broad range of users, and should set user definition … ‘ceilings’ as broadly as legally allowable. However, we believe that each state, tribal and local agency should be allowed limited discretion to develop reasonable user definitions within the ‘ceiling’ set by FirstNet, as part of the state plan.” The state added that its position is that “entities with a mission dedicated to public safety services be designated as primary users. And, entities with a mission for other services that may be called upon during an emergency incident be designated as secondary users, for example, utility entities.” The state also said that each state should be given the discretion to define the term rural.

The state of Texas, which secured a spectrum leasing agreement from FirstNet on behalf of Harris County, said it “rejects the proposed definition of ‘Rural Area’ based upon The Rural Electrification Act as inadequate because it is not specific or comprehensive enough. It requires complex data management compared to alternatives and it results in an inadequate accounting of rural coverage.” The state argued that determining rural areas should be done on the county level; it said that 224 of the state’s 254 counties are rural.

It added that the rural “should be measured using Population Density by County (Persons/square mile) with a Rural County being defined as “a County with less than 160 persons per square mile. … Because it may be possible that no one definition will either work or gain consensus, and because it is possible for rural definitions to vary as demonstrated by the analysis of the multitude of ‘rural’ definitions, the State of Texas recommends that States be given the flexibility to define ‘Rural Areas’ on behalf of their State.”

The state of New Mexico, which also is an early builder, said FirstNet should “adopt a broad definition of the term ‘rural’ to assure that all areas within a state, including high-risk unpopulated areas, are covered by the National Public Safety Broadband Network (NPSBN). … There is no legitimate reason to adopt ‘a separate term for a frontier or wilderness area that would bound the term rural in connection with provisions of the Act.’” It said that FirstNet should use the U.S. Census Bureau’s 2010 definition of rural, which it said includes “all population, housing, and territory not included within an urban area.’”

As for the definition of public safety entities, the state said FirstNet “should adopt an inclusive definition” that would permit “users requiring priority access to serve public safety on the NPSBN. Prioritization and issues of preemption should be resolved on an incident level basis based on guidelines developed in the state consultation process.”

“We object to FirstNet’s proposed definition of ‘rural’ and to FirstNet’s proposed classifications for ‘frontier and wilderness,’” the state of Minnesota said. “FirstNet seeks to define ‘rural’ areas in such a manner that would limit the area that is considered rural and could, in effect, reduce FirstNet’s obligation to ensure build?out and coverage milestones across vast geographies of the country, including 42 Indian reservations, one entire state, the majority of three additional states, and a large portion of Minnesota.”

As for eligibility to use the network, Minnesota said it agreed “with FirstNet’s preliminary conclusions that the Act does not expressly preclude any group of users and grants FirstNet discretion to consider a broad range of users within its mission; these conclusions are consistent with both the letter of the Act as well as the policy mandate that the network be financially self?sustaining. Without the ability to serve a broad base of users, FirstNet cannot hope to accomplish sustainability. As more fully developed below, however, the drive to generate revenues must not hamper access to the network for public safety purposes. The NPSBN is for public safety, and it must always be available for public safety communications.”

“The State of Alaska (SOA) suggests that the definition of types of non-governmental organizations account for the importance of Regional Alaska Native Non-Profit Corporations which provide important public safety services to Alaska’s most remote communities, which are generally only accessible by air or water and are populated primarily by Alaska Natives,” the state said in its filing. “For example, the Alaska Department of Public Safety administers a contract wherein Regional Alaska Native Non-Profit Corporations hire Village Public Safety Officers (VPSOs) with SOA funds to provide a law enforcement presence in remote, predominantly Alaska Native communities. While VPSOs are not recognized as police officers by the Alaska Police Standards Council, they do meet the State’s statutory definition of peace officers.”

The state also expressed concern about using the REA definition of rural, saying that FirstNet should work with it “to create an Alaska-specific definition of ‘rural’ that would meet FirstNet’s statutory obligations, but in a way which accounts for Alaska’s unique circumstances.”

“The definition of ‘rural’ should be decided on a state-by-state basis during the consultation process and with deference to the state’s preferred definition,” the state of Hawaii said. “In no event should a definition of ‘rural’ exclude areas that a state or territory requires to be served in the interests of public safety. Hawaii also supports a broad definition of ‘public safety entity’ as proposed by FirstNet and believes that issues of priority and preemption as developed by the stakeholders in Hawaii should be discussed and worked through in the consultation process for implementation by incident commanders.”

“In Oregon, a definition of rural is where there is no 4G or 3G wireless cellular coverage available – this definition is a better model than using the ‘Electrification Act’ definition. In the case of the latter, a majority of Oregon would be considered rural,” the state of Oregon said.  “States should be allowed, during the consultation process, to help specify which areas are rural, and to apply that definition on a regional basis with other states. For example, southern Oregon and northern California should be classified as rural.” The state also said that it Oregon “supports an open policy for a public safety user definition inclusive of both government and utility providers.”

The state of North Dakota described “an approach to maximizing coverage in large rural states by leveraging commercial services; this approach is not a proposal, but rather a suggestion for FirstNet’s evaluation to determine feasibility.” The state also urged FirstNet “to allow each State to determine its own deployment milestones, including rural deployment milestones.” It also stressed “the importance of permitting private public safety service providers to use the nationwide public safety broadband network (‘NPSBN’) as ‘public safety entities’ (not secondary users) that are capable of receiving prioritized access under appropriate circumstances.”

The state of Arizona said that “the emphasis placed on opening up the user base to virtually anyone gives the impression that some level of financial analysis has been performed by FirstNet.  If this is the case, it would be beneficial for the States to have visibility of the results so they are aware of the hurdles and projected costs and have the financial context for FirstNet priorities and design decisions.”  Arizona warned that opening the network up on a “blanket” basis to entities such as transportation and city planning departments “defeats the purpose of creating a ‘public safety’ broadband network.” The state said that instead, those that generally are not considered traditional public safety entities can be given permission to use the network by entities whose primary mission is public safety.

The state also argued that one “definition of ‘rural’ based solely on population will not adequately determine coverage requirements and/or build out milestones due to the many factors which mitigate coverage requirements. FirstNet should establish build out milestones based on the unique coverage requirements of each State through the state consultation process.”

“Setting the correct mix of eligible users will be critically important to the success of the network,” said the Bay Area Regional Interoperable Communications System (BayRICS) Authority. “BayRICS supports the position that FirstNet has discretion to consider a broad range of users, and we recommend that FirstNet establish a ‘ceiling’ for eligible users that is as inclusive as legally allowable. However, we believe that FirstNet’s mission requires it to allow State, tribal and local agencies discretion to develop reasonable user policies within this ceiling set by FirstNet, consistent with their responsibilities as public safety agencies. To do their jobs effectively, local agencies must have the ability to assign broadband users in similar ways to the ways they currently assign Land Mobile Radio (‘LMR’) users. User policies vary among local and state agencies, and agencies need the flexibility to apply their established local policies to the FirstNet network.”

BayRICS also said it was “concerned that key elements of the network are not included in either the Core or RAN [radio access network] definitions. For example, critical backhaul transport components of the network are not clearly included in either definition. Although Section 6202(b) includes in the RAN definition ‘Backhaul Equipment required to enable wireless communications with devices using the public safety broadband spectrum,’ this language arguably excludes dark fiber or other long-haul connections between the RAN networks and the Core. Also, ‘back end’ connectivity between the Core and the many geographically distributed information databases and application servers do not appear to be included in either definition. The classification of such backhaul elements becomes important for states when evaluating the service offering and pricing incorporated into their state plans, and when estimating (for opt out) what should be included in RAN costs or included as FirstNet Core services. FirstNet should clarify whether such backhaul elements are included as part of the Core or RAN, or excluded from both definitions.”

Other states raised issues with the network elements as well.   In a joint response to the public notice and the RFI, the Mid-Atlantic Consortium for Advanced Interoperable Communications (MACINAC) urged “FirstNet to allow a regional consortium of states, such as MACINAC, to jointly determine the best course of action for the planning, deployment and implementation of FirstNet as part of a modified ‘opt-in’ scenario. … Within this framework, MACINAC urges FirstNet to allow multi-state regions to have a more substantial role in an ‘opt-in’ scenario. This regional approach would give States greater input into the building, deployment, operation and maintenance of the network, while also fostering increased buy-in and facilitating network convergence.” It wants to pilot the concept.  MACINAC includes Delaware, Maryland, Pennsylvania, Virginia, and West Virginia.

“Local governments, including the member agencies of the LA-RICS Authority, must have the latitude to assign FirstNet users as member agencies do today on their Land Mobile Radio networks,” said the Los Angeles Regional Interoperable Communications System (LA-RICS), another early builder. “This means that a local agency should have the authority to distribute ‘public safety’ devices that operate as ‘primary’ users on the NPSBN and have access to the FirstNet applications. This authority should extend to granting access to non-government entities when they require access as a public safety entity in the interest of interoperability and the mission of the protection of life and property. FirstNet should not get in the way of local government’s ability to meet its broad public safety mission as that entity sees fit.”

The New York City Police Department said it “concurs with FirstNet’s interpretation of the definition of public safety entities as defined in Section 6001 of the Act. However, emergency first responders must be afforded the highest priority among public safety entities on the network.” It also said that it “agrees with the inclusion of secondary users on the network but cautions FirstNet that LTE priority and preemption mechanisms must be tested and stressed prior to loading the network with secondary and potentially tertiary users, and prior to deploying a nationwide network that public safety users depend upon for mission critical applications.”

The Navajo Nation Telecommunications Regulatory Commission (NNTRC) said consultation by FirstNet “must be done directly between FirstNet and Tribes, and not through the states. This is especially necessary for the Navajo Nation, which straddles three states.” NNTRC also expressed concern “that FirstNet is attempting to avoid its obligations to meet the ‘substantial rural coverage milestones’ contained in Section 6206(b)(3) by simply excluding certain areas as being “frontier’ or ‘wilderness’ rather than ‘rural.’”

Southern Company Services, Inc., and SouthernLINC Wireless concurred with the public safety entities definition, suggesting that “[a] broader user base will advance public safety by creating a more robust and reliable network.” It also backed the REA definition of rural.

Alcatel-Lucent said it “agrees that the law allows FirstNet great discretion to accommodate on the NPSBN a broad range governmental and nongovernmental organizations, personnel as well as countless anticipated (and not-yet-anticipated) machine applications.” It also urged FirstNet to “seek opportunities to provide greater feedback to the vendor community.”

“While there is no specific language in the statute establishing a threshold for how much, or what type of activity an entity engages in with respect to public welfare and safety, Nokia believes that the preliminary conclusion reached by FirstNet is correct and appropriate,” Nokia Solutions and Networks US LLC said. “Participation in frontline public safety activities as the primary purpose of an entity is too strict a construction and does not reflect the broad community of agencies and NGOs involved in protecting the public welfare.”

As for elements of the network, Nokia said that although it “concurs with the interpretation that a single national core for the network should be built, we do not share the view that the statutory language precludes all forms of state and local core capability in addition to this national core.  Indeed, Nokia believes that as a practical matter allowing for the construction of certain elements as extensions of the national core within each of the states to enable local control and help spur local public safety interest is prudent.”

“Leveraging existing wireless infrastructure would ensure the NPSBN is deployed in the most efficient and cost-effective manner possible, giving first responders the best chance to use a system that is fully operational in the widest possible area during emergencies,” PCIA said. “Expanded coverage and cost savings are major incentives for FirstNet to consider public-private partnerships. Moreover, FirstNet should inform potential RFP participants to the requirements of the FAR [Federal Acquisition Regulation] and could endeavor to make those guidelines clearer through outreach efforts, which will drive participation from a wide swath of the industry. Finally, establishing a well-tailored definition of ‘rural’ will ensure coverage from the NPSBN, safeguarding our nation’s most challenging geographical areas and centers of economic activity.” It said that while using the REA definition “may streamline certain processes, basing what constitutes ‘substantial rural coverage’ on population density could be problematic.”

Motorola Solutions, Inc., said that FirstNet’s definition of public safety entities “appropriately encompasses a broad pool of potential priority NPSBN users who could be vital in responding to a variety of emergencies.”  Motorola added that “FirstNet’s RFPs should be flexible and encourage multiple business models rather than restricting responses to one model over another.” The company also said that FirstNet should ensure that fees on the network are comparable to current carrier data plans.

NTCA said that “FirstNet should ensure that public safety entities and secondary users are not given license to offer commercial services in a manner that places existing providers at a competitive disadvantage or detracts from the core mission of public safety.” The group said it supported using the definition of rural proposed by FirstNet but “should reject the proposal to define the term ‘frontier’ in relation to certain areas that bound rural areas.” FirstNet also should leverage, where possible, the assets and expertise of rural carriers, NTCA said.

T-Mobile US, Inc., said that “FirstNet should interpret its authorizing legislation as broadly as possible to take advantage of these opportunities. In particular, FirstNet should provide ‘secondary users’ with multiple ways to use or access the NPSBN. At a minimum, they should be able to roam on the NPSBN under Section 6208 of the Act and enter into CLAs [covered leasing agreements] that do not necessarily require a nationwide build out agreement under a public-private partnership. FirstNet should also find that, under the Spectrum Act, it is obligated – not merely encouraged – to leverage commercial infrastructure as it develops and deploys the NPSBN. By taking these steps, FirstNet will be better able to accelerate build out, develop redundancies in network architecture, and generate critical revenues that will give first responders the best chance of deploying and operating the NPSBN.”

“Secondary users, if appropriately coordinated with the State, local and tribal first responders, may prove to be a financially invaluable partner to FirstNet as it seeks to leverage a broad base of secondary users fees, capital, and resources the secondary user community may contribute to this national objective,” the Telecommunications Industry Association said. “Failure to consider mission critical service needs alongside network architectures threatens to put the project’s ‘solution’ ahead of the ‘needs,’ when in reality they are symbiotic in nature. The risk of developing specific requirements after the architecture is completed is that future specifications may be far more difficult or costly to incorporate into the network because inadequate provisions had been made for these requirements.”

The Coalition of WISPs for FirstNet stressed the importance of leverage existing infrastructure, including wireless Internet service provider infrastructure, and said it has no objection to the REA definition of rural.

Lockheed Martin Corp. said it supports the proposed broader definition of public safety entities. “However, the term must also explicitly include those entities entering into mutual assistance agreements with local emergency responders,” it said. “Numerous public safety agencies have existing mutual aid agreements with other entities, such as the National Guard or a local department of public works, which may fall outside of traditional definitions of ‘public safety.’ Categorizing these organizations as public safety entities would improve interoperability, increase the sustainability of the NPSBN services, and allow NPSBN users to deliver more integrated and comprehensive public safety services to the public.”

Hughes Network Systems LLC said that it “supports FirstNet’s preliminary conclusion of the definition of ‘rural,’ and that FirstNet should define ‘substantial rural coverage milestones’ in terms of geographical coverage.”

In joint comments, the Edison Electric Institute and the Utilities Telecom Council said they agreed that “electric utilities qualify as public safety users of the network because they perform a ‘non-de minimis amount’ of public safety services. Partnerships between public safety and electric utilities as well as with other critical infrastructure industries (‘CII’) will go far to ensure development of a ubiquitous, highly reliable, cost efficient interoperable network, which benefits the public at large.” The groups also endorsed the adoption of the REA’s definition of rural.

The National Rural Electric Cooperative Association endorsed the broader definition of public safety entities, saying that CII entities “are essential to recovery from all types of disasters, be they man made or natural.” It also backed the use of rural included in the REA.  “Public power utilities provide important public safety services to their communities, and work closely with public safety entities on a regular basis,” the American Public Power Association said.

The American Petroleum Institute also favored the broader definition of public safety entities. “FirstNet should also ensure that remote areas critical to the exploration and production of oil and natural gas, including the Gulf of Mexico, are included in its plans for the NPSBN,” it said.

A number of other utility and other CII companies also endorsed the broader definition of public safety entities.

Even the Association of Flight Attendants argued that their members should qualify as first responders, citing their “significant public safety and emergency response duties …”

Ericsson, Inc., said it “supports the inclusion in the core network of ‘all other network elements and functions other than the radio access network’ as this is critical to interoperability as the national public safety broadband network evolves over time. Thus, if and when IMS (IP Multimedia Subsystem) and/or VoLTE (Voice over LTE) features are integrated into the network over time, this same division between the core network and radio access network should be maintained in the interest of interoperability. The statute mandates that interconnection with the Internet and the public switched network be a core network function. Accordingly, the infrastructure used for providing and managing such interconnection must be part of, and controlled by, the FirstNet core network.”

The National Association of State 911 Administrators asked “that FirstNet include in its RFPs a specific requirement that responding suppliers must leverage existing NG911 infrastructure where such would bring clear economic benefits. We believe that it would be short-sighted and bad public policy to exclude the relationship between FirstNet and NG911 from the FirstNet RFP. NASNA firmly believes that sharing the NG911 core network would prevent the build-out of redundant broadband networks and thereby result in both infrastructure and cost efficiencies to NG911 authorities and to FirstNet. It would also result in more effective relationships with the front lines of the public safety first responder community.” – Paul Kirby, paul.kirby@wolterskluwer.com