FCC Adopts Order Establishing Procedures to Consider Alternative FirstNet Plans

The FCC June 22 unanimously adopted a report and order establishing procedures for reviewing alternative plans filed by states that want to “opt out” and contract to build their own radio access networks (RANs) rather than have the First Responder Network Authority’s (FirstNet) partner, AT&T, Inc., build them. “Today’s decision is intended to provide states with a fair and meaningful opportunity to pursue their own network plans without causing undue delay and while still ensuring the integrity of the nationwide network,” the FCC said in a news release on the item. In recent weeks, FirstNet, AT&T, and others sought changes to the draft version of the order circulated earlier this month (TR Daily, June 1). The text of the item was released late this afternoon.

Under the Middle Class Tax Relief and Job Creation Act of 2012, which established FirstNet, governors have 90 days after receiving the FirstNet state plan to notify the government that they want to opt out of having FirstNet’s partner build a radio access network in their states. The law said that within 180 days after that, states must complete a request for proposals (RFP) and submit an alternative plan for approval by the FCC, which is charged with reviewing whether plans would comply with minimum technical interoperability requirements. If the FCC approves a state plan, the state has to apply to the National Telecommunications and Information Administration for authority to secure a spectrum capacity lease agreement with FirstNet. States seeking to build their own RANs may also apply to NTIA for grant funds to help cover those costs.

The order adopted today in PS docket 16-269 is “essentially the same” as the draft version circulated earlier this month, Lisa Fowlkes, chief of the Public Safety and Homeland Security Bureau, told reporters after today’s FCC meeting. However, the order as adopted does not instruct the bureau to issue a public notice seeking comments on FirstNet’s network policies to enable the Commission to identify elements of FirstNet’s network policies that it will consider as part of its interoperability review, as the original draft order did. That provision drew complaints from FirstNet, which argued that the Commission has no “oversight authority  over FirstNet’s network policies” (TR Daily, June 21).

But the order adopted today instructs the bureau to seek comments on an interoperability compliance matrix that FirstNet submitted to the FCC recently. The bureau plans to seek such comment “on an expedited basis,” said Roberto Mussenden, attorney-adviser in the Policy and Licensing Division of the Public Safety Bureau. In his presentation to Commissioners at today’s meeting, Mr. Mussenden said that states must complete an RFP, including selecting a vendor, within 180 days of providing opt-out notification, but the FCC will give it another 60 days to actually file its alternative plan. States can ask for confidentiality for sensitive information and the FCC will provide “a limited pleading cycle” for FirstNet and NTIA to submit comments on alternative plans. Other impacted parties may also participate, he said. He said that the FCC will have “a 90-day aspirational shot clock” to act on alternative plans.

As to the scope of the FCC’s review, Mr. Mussenden said plans must demonstrate compliance with recommendations of the FCC’s Technical Advisory Board for Interoperability and demonstrate “interoperability with the FirstNet network.” The order confirms the FCC’s review will focus only on RAN interoperability and not core elements. After comment is sought on FirstNet’s interoperability matrix, the bureau will refer the issue to the FCC “for final determination,” he said. “Today, the Commission takes a significant step forward in carrying out its responsibilities to help the First Responder Network Authority, or FirstNet, establish a nationwide, interoperable public safety broadband network,” FCC Chairman Ajit Pai said. “We establish procedures and timelines governing a state’s decision to opt out of FirstNet’s radio access network, or RAN, and to construct, maintain, and operate a RAN on its own initiative.  We also lay out the criteria for evaluating, and ultimately approving or disapproving, any alternative plans from states that elect to opt-out.”

“Generally, today’s order appears consistent with the authority provided to the Commission under the Act and attempts to apply its provisions fairly. Hopefully, we struck the right balance, providing states the ability to make an informed choice and FirstNet the certainty needed to proceed,” said Commissioner Mike O’Rielly.

But he added that he was “disappointed that the Commission’s 90-day shot clock for the review of state alternative plans is just ‘aspirational.’ The Commission has a history with aspirational shot clocks that seem to be stopped and started at will. In fact, they have proven to be as reliable as a sundial on a cloudy day. The item states, however, that the shot clock will only be suspended for special circumstances, such as ‘a national, state, or local emergency that requires diversion of Commission staff resources to address the situation.’ I expect the Commission to live up to this commitment. Ultimately, the Commission must do what it can to move the process along so that this network can finally be built.”

Commissioner Mignon L. Clyburn said she hopes “that each state will elect to opt-in, but Congress expressly and rightly, afforded each state the ability to opt-out of FirstNet, and this option is what we sought to capture in today’s Order. If some say that opting out is an impossible feat, my answer is that was not Congress’ intent. Congress intended to give states a meaningful, if difficult, opportunity to decide if it is in their best interest to submit an alternate plan to the Commission. And for any state wishing to opt-out, once the plan is submitted, the Commission is committed to working diligently to review the submission within the targeted 90 day shot clock timeframe and our technical review of a state’s alternate plan, will align with our statutory mandate. And that is a promise we intend to keep.”

Among the issues that drew complaints from FirstNet, AT&T, and others were the additional 60 days that the FCC proposed to give states to submit their alternative plans, the intention to allow parties to comment on plans, the length of the FCC’s shot clock, and the Commission’s determination that it only had authority to review RANs in plans.

Some parties, including Rivada Networks LLC, criticized filings by FirstNet and AT&T, saying they were trying to make it as difficult as possible for states to submit alternative plans and get them approved.

FirstNet Chief Executive Officer Mike Poth said in a statement today, “FirstNet commends the FCC for taking this important next step in its rulemaking proceeding for alternative state plans. The public safety community advocated for a single, nationwide broadband network and they continue to underscore the need for this network today. The FCC has an important role to play in ensuring the interoperability of the network. FirstNet thanks the Commission for its continuous support and involvement with the success of the nationwide public safety broadband network and looks forward to working with the Commission to ensure that Congress’ interoperability objectives are met for the Network.”

“AT&T commends the FCC for moving quickly to adopt a FirstNet order, which paves the way for meaningful and in-depth Commission review of any alternative state deployment plans.  It is critical to our nation’s first responders that states that propose an alternative to FirstNet’s national public safety broadband network fully demonstrate compliance with the statutory requirements,” said Joan Marsh, AT&T’s senior vice president-federal regulatory.

Derek Poarch, executive director and CEO of the Association of Public-Safety Communications Officials-International, said, “APCO appreciates the Commission’s efforts to prepare for its important role to support FirstNet’s mission by guarding against alternative RAN plans that fail to make an initial showing of interoperability with the NPSBN.  A state that attempts to opt out will not only need to ensure interoperability, but account for the significant delays that will result to the delivery of advanced, interoperable broadband communications to its first responders.”

“We appreciate the commission’s commitment to ensuring that states have a fair and reasonable opportunity to exercise their opt out rights,” said Brian Carney, SVP-corporate communications for Rivada Networks, which led the Rivada Mercury LLC consortium that lost out to AT&T for the FirstNet contract.- Paul Kirby, paul.kirby@wolterskluwer.com

Courtesy TRDaily