FCC Agrees to Limit Interoperability Review of Alternative State Plans

In a report and order it adopted June 22, (TR Daily, June 22), the FCC agreed with its proposal in a notice of proposed rulemaking and the First Responder Network Authority (FirstNet) that it should limit its review of alternative state plans under one prong of its review to radio access network (RAN) requirements stipulated by its Technical Advisory Board for First Responder Interoperability, rather than also including some or all of 55 other considerations, as some parties had advocated. “For the reasons stated in the NPRM, and as recommended by FirstNet in its June 16 ex parte, we will limit our review under the first prong to the ‘SHALL’ criteria originally proposed. In particular, we reject the suggestions of DVA [Consulting LLC] and Illinois to expand the scope of the Commission’s review under the first prong,” the FCC said in the order, which was released late yesterday afternoon in PS docket 16-269.

The Commission also noted that an interoperability compliance matrix submitted by FirstNet earlier this month had drawn concern from some parties that said states might not have a chance to include it in their alternative state plans and the Commission might not be able to use if in its review of those plans. “While FirstNet originally stated that it intended to promulgate ‘network policies’ that would inform the Commission’s review under prong two, FirstNet’s June 5 and June 16 ex partes indicate that it now proposes that the Commission’s review under this prong be limited to whether state plans comply with recommended requirements [4] and [5] from the Interoperability Board Report,” the FCC said. “In light of the recent nature of these filings, and in order to ensure that our decision is based on a complete record, we will defer a final decision on the prong two criteria until after an opportunity for brief public comment on FirstNet’s proposal. In doing so, however, we emphasize our intent to act with dispatch to resolve these issues well in advance of the need for states to make their statutory opt-out decisions[.]”

The order directs “the Bureau to issue and publish in the Federal Register a Public Notice seeking comment on FirstNet’s June 5 and June 16 ex parte filings, and any related filings by FirstNet as appropriate. The Public Notice will seek expedited comment on FirstNet’s proposals as related to interoperability and the Commission’s statutory review. Upon close of the record, the Commission will issue a subsequent order specifically identifying those elements of FirstNet’s network policies that we will consider in evaluating state compliance with the second prong of the statutory test.”

Regarding its shot clock for reviewing alternative plans, the order said, “While there is no requirement that the Commission place a shot clock on itself for action, we find it appropriate to establish a 90-day aspirational shot clock for Commission action, which will start upon issuance of the ‘accepted for filing’ public notice for each alternative plan. The 90-day shot clock will establish clear expectations for the Commission and for the parties involved to encourage prompt action and avoid delay. We do not agree with the suggestion that the Commission establish a much shorter shot clock that would require a decision within 10 business days. This underestimates the potential complexity of these technical filings, could inhibit the Commission’s ability to evaluate fully all material relevant to a decision, and would clearly impede the ability of the Commission, NTIA, and FirstNet to consider the application and for the state to respond to any concerns.”

The order added, “Although the shot clock is aspirational, we intend to apply it in the ordinary course and only anticipate suspending it under special circumstances, such as a national, state, or local emergency that requires diversion of Commission staff resources to address the situation. We reject the suggestion that no suspension of the shot clock should be allowed. To do so would tie the Commission’s hands in times of crisis with respect to allocation of resources, which is clearly contrary to the public interest. We also disagree with APCO and Florida and decline to impose a default ‘consequence’ (i.e., either automatic approval or automatic disapproval) if the Commission exceeds its self-imposed deadline. Establishing such a consequence would be contrary to the Act, which requires affirmative action by the Commission, and automatic approval of a plan triggered by exceeding the shot clock would risk allowing the construction of a non-interoperable state RAN — an outcome clearly at odds with the intent of the Act. Since these opt-out evaluations are unique proceedings, we believe our decision balances the need for thoroughness with speed, while ensuring that the Commission hear and evaluate all evidence pertinent and material to its decision.”- Paul Kirby, paul.kirby@wolterskluwer.com

Courtesy TRDaily