Florida Weighs in on Alternative State Plan Rules

States that submit an alternative state plan seeking to build their own radio access networks (RANs) aren’t required by law “to complete the entire RFP process” by the time an alternative plan is submitted, according to the state of Florida.

In comments filed in PS docket 16-269, the state said that “it must be concluded that states are not required to complete the entire RFP process, but only the RFPs themselves, by the time they submit their alternative plans. The Commission should be mindful of this clear statutory distinction when issuing its final rule.”

The state submitted comments on a notice of proposed rulemaking released by the FCC in August seeking comments on the rules it should it adopt to evaluate alternative plans from states that want to opt out of having FirstNet’s partner build a RAN in their states (TRDaily, Aug. 26).  Initial comments were filed by other entities recently (TRDaily, Oct. 24). The state of Florida was given additional time to file its comments due to recent hurricanes (TRDaily, Oct. 20).

“Fairness also demands that the level of detail required from the state-submitted alternative plan to be no greater than that of the plan provided to each state by FirstNet,” Florida also said in its filing. “FirstNet, which has had more than 180 days to complete the request for proposal process, interprets its obligation to submit completed plans as requiring only ‘sufficient information to present the State plan with the details required pursuant to the Act for such plan, but not necessarily at any final award stage of such a process.’ Thus, FirstNet, which is required to complete the entire RFP process, does not believe a final award, let alone contract formation, is necessary in satisfying this obligation. It would be anomalous for the Commission to interpret a more rigorous standard on the states in their submission of alternative plans to the Commission.”

“The Commission should also not require a state that chooses to opt out to have received bids prior to the Commission’s evaluation of the alternative state plan,” the state said. “Such a requirement would serve only as an arbitrary check point and be of no appreciable benefit to the Commission’s evaluative process of the alternative plans. The bids, which prior to the execution of a contract are merely offers, cannot be relied on to accurately forecast the state’s final alternative plan. Moreover, because of trade secret and public procurement exemptions to the public records law in Florida, the submitted bids would likely be unavailable to the Commission prior to an actual award.”

The state also said that “states should be granted reasonable time extensions, on a case-by-case basis, when circumstances, especially those beyond the state’s control, hinder the timely completion of the RFP.”

“The Commission should allow FirstNet to have access to review the state opt-out plans in order to ensure all plans meet the national interoperability requirements,” Florida also suggested. “FirstNet and NTIA should be able to comment on the states’ alternative plans only to the degree that states are afforded the opportunity to amend their plans in response to the feedback received from those agencies. To allow those agencies to simply criticize the state plans, without granting the states an opportunity to address the criticisms, adds nothing constructive or meaningful to the process, especially since those agencies will have their opportunity to formally review the alternative plan later in the process.”

“Considering the hardship imposed by excessive delays in the decision making process, we commend the use of a ‘shot clock,’ and propose that this be set for 30 calendar days following the Commission’s receipt of a state’s alternate plan,” Florida advised. “The only variances that should be measured are those between the opt-in proposal and the opt-out proposal. The ‘shot clock’ should only be 30 days. A question and answer period between the Commission and the State(s) may be needed to clarify any unknown requirements from the FCC, or to determine if additional information is needed. Each time the State responds, it is reasonable for the shot clock to reset to 30 days. The Commission should not be permitted to request information it could have previously requested as a pretense to reset the shot clock.”

Also, the FCC “should not disapprove a plan without first addressing the alleged deficiencies with the State and allowing for the response or corrective action. The process should be an open dialogue between the two parties,” Florida said.

In addition, “Due process demands greater detail in the event of a disapproval notice. The Act prescribes a specific forum and standard for judicial review of the Commission’s disapproval. Because states have appeal rights to the Commission’s decision, the Commission must provide sufficient detail of its decision in order for the states to exercise those rights. A disapproval notice without adequate explanation of the basis for the decision would render judicial review meaningless,” the filing said. – Paul Kirby, paul.kirby@wolterskluwer.com

Courtesy TRDaily