53 States, Territories, D.C. Agree to Opt into FirstNet

– TR Daily, January 2, 2018

The First Responder Network Authority and AT&T, Inc., its network partner, are 53-0 on opt-ins to the network, even by one state that had originally decided to opt out.

With the passing of last Thursday’s deadline for most states and territories to decide whether to opt into the FirstNet system or seek to opt out and build their own radio access networks (RANs), all 50 states have opted in, in addition to New Hampshire, which earlier had said it planned to opt out (TR Daily, Dec. 7, 2017), and the District of Columbia, Puerto Rico, and the U.S. Virgin Islands.

The Pacific U.S. territories of American Samoa, Guam, and the Northern Mariana Islands have until March 12 to decide whether to seek to opt out of the network as they received their state plans later than others. However, they are expected to opt into FirstNet as well.

“We are grateful to have every state say ‘yes’ to the FirstNet solution,” FirstNet Chief Executive Officer Mike Poth said in a blog posting today. “The scale of participation by the states and territories is significant for many reasons. First, it accelerates the vision, deployment, and availability of FirstNet from coast to coast. With more than 50 states and territories on board, millions of first responders now have instant access to an inherently interoperable network today.  Also, having full, nationwide participation supports the more efficient and coordinated expansion of the network – including the buildout of Band 14 spectrum – across the country.  It ensures that we will have an enduring, self-sufficient network for public safety for years to come.”

“This is a landmark day and monumental achievement for public safety – one that has been years in the making,” FirstNet board Chairwoman Sue Swenson said in a news release Friday.  “There are many who said this network would never happen, but public safety never gave up on their network.  Because of their vision and hard fought efforts, I can proudly say that this life-saving network is now a reality across America; FirstNet is going to enhance the safety and security of our first responders and the people they serve.”

“With all 50 states and several territories participating in FirstNet, we have a clear path to delivering a truly nationwide broadband network for first responders,” Commerce Secretary Wilbur Ross said in another news release. “We are now one step closer to delivering on a key recommendation of the 9/11 Commission, and I commend the governors and leaders of these states and territories for demonstrating their commitment to the safety of all Americans.”

“Our FirstNet offering will forever change the way first responders communicate,” said Chris Sambar, AT&T’s senior vice president-FirstNet. “Securing 53 opt-ins is significant for the public safety personnel that this network will serve. And we’re honored to give first responders across the country quick access to this life-saving solution.”

The final opt-ins last week came from Washington state, Oregon, Washington, D.C., Mississippi, New York, New Hampshire, Florida, and California.

New Hampshire Gov. Chris Sununu (R.) cited the opt-in decisions of other states in deciding to change his decision, but he said it got a better deal from AT&T than it would otherwise have had.

“Following our decision to opt-out and go with the Rivada plan that provides better coverage, more system control, and an opportunity to share in the revenue streams of the business, we proceeded to have extensive discussions with other governors across the country to help them understand the benefits of such a system,” he said. “Many of these states had previously expressed serious interest in pursuing an independent opt-out path. While we were successful in working with FirstNet to remove the unreasonable fees and penalties, the decision deadline of Dec. 28 approached too quickly for these other states to feel confident in an opt-out decision. As a result, it now appears likely that no other states will opt-out. While Rivada’s plan remains the better option for New Hampshire, I have determined that the additional risk associated with being the only state to opt-out creates too high a barrier for New Hampshire to continue down the opt-out path alone.”

Mr. Sununu added, “Through this entire process New Hampshire has been able to maintain strategic leverage and ensure that the alternative AT&T proposal was one of the best in the country. By moving to opt-in today, New Hampshire will retain AT&T’s commitment to build 48 new tower sites across the state. These new sites will lead to a top quality public safety network for our first responders and enhanced coverage for all of our citizens. I look forward to working with AT&T as they begin the build out and deployment of their New Hampshire plan, and I pledge to continue our efforts to ensure that FirstNet remains responsive to the public safety needs of every state.”

New Hampshire Safety Commissioner John Barthelmes added, “It is unfortunate that the federal government did not provide states with sufficient clarity in time for most states to adequately evaluate their options. Because New Hampshire started early and conducted a thorough evaluation of both paths, we were presented with a strong opt-out plan that strengthened the state’s negotiating position. I want to thank Rivada again for their efforts in developing an incredible plan for New Hampshire, and wish them all the best in their future endeavors.”

After New Hampshire announced its opt-out decision last month, FirstNet told New Hampshire that it was clarifying the spectrum lease manager agreement (SMLA) for opt-out states to lease spectrum from FirstNet to clarify that “if the opt-out state build or operation of its RAN fails during the term of the SMLA, the state will only be responsible for the actual cost of reestablishing the RAN in the state” (TR Daily, Dec. 19, 2017). New Hampshire had faced a termination fee of up to $600 million if it opted out and then failed to fulfill the terms of a draft SMLA.

While California also decided to opt into FirstNet, it also criticized the FirstNet process last week (see separate story).

“California is electing to opt-in to the FirstNet state plan, in part, because FirstNet’s regulatory and procedural process makes the opt-out option in California untenable,” said a letter Thursday from Mark Ghilarducci, director of the California Governor’s Office of Emergency Services, to Mr. Poth. “Opting-out requires a number of approvals from federal agencies with discretion to reject California’s plan and force the state to revert to the FirstNet option. Further, to pursue an opt-out scenario, the state would have been required to enter into a spectrum manager lease agreement with FirstNet. The draft of the agreement provided to California imposed undefined financial liability on the state and its selected opt-out vendor in the event the opt-out plan was unsuccessful. The terms of the spectrum manager lease agreement were impossible for the state to accept and unpalatable to potential vendors. This stifled competition and ultimately acted as a major barrier to the pursuit of a meaningful opt-out process.”

The state had said that the termination fee included in the draft SMLA ranged as high as $15 billion if it opted out and then did not fulfill the terms of the lease.

Rivada Networks LLC, which had hoped that the initial New Hampshire opt-out would lead to others, now has no contracts to build RANs.

“We respect Gov. Sununu’s decision,” the company said in a statement. “We salute New Hampshire’s vision and courage in selecting us. If more states shared the Granite State’s diligence, integrity, and commitment to transforming public safety communications, New Hampshire would not have had to stand alone at the deadline.  We are proud to say that thanks to our efforts, first responders all over the country have gotten a better deal and better service than they could have hoped for without the competitive pressure we offered. Rivada will continue to work to transform the wireless industry through our open access wireless technology.”

Only days before the deadline for deciding whether to opt out, Rivada had urged all states to opt out in the wake of the clarification provided by FirstNet concerning the opt-out terms. “This dramatic change makes opting out much less risky and more attractive to states, and that is to be applauded,” Rivada said. “But the manner in which it was done and the timing of the change leaves states with no opportunity to fully weigh its ramifications. It also seriously harms states that had earlier expressed an intention to opt in under the threat of ‘draconian’ penalties for opting out. In some cases, those states canceled legally required RFPs or ended them without award, based on threats that FirstNet now seeks quietly to disown. … We urge all governors to obtain this updated information from FirstNet and to carefully consider the benefits of opting-out in light of the very manageable risks that will actually be imposed by FirstNet under the SMLAs.”

For its part, Verizon Communications, Inc., which had submitted bids in response to some state requests for proposals and is hoping to compete with AT&T with its own public safety offering, said in response to the opt-in decisions, “2017 generated significant dialogue regarding public safety communications. That was good and it drew increased attention to this critical customer segment. 2018 will be the year that actions and results speak louder than words. For Verizon, that means continued leadership in network excellence by launching our dedicated public safety network and continuing to lead the market with the introduction of products, services, and other advanced technologies designed for first responders – all running on the country’s only public safety-grade LTE network.”

FirstNet boosters said they were pleased that 53 states, territories, and Washington, D.C., had opted into the system.

“APCO congratulates FirstNet and its partner AT&T on this significant milestone towards an advanced, nationwide, interoperable public safety broadband network,” said Derek Poarch, executive director and CEO of the Association of Public-Safety Communications Officials-International. “APCO has always believed that the main vision and goal behind the FirstNet legislation – interoperability – would be best ensured if all states chose to opt in to FirstNet.  Having reached this outcome, FirstNet and AT&T must now put the confidence and trust placed upon them by the states and territories into action by creating a fully interoperable, reliable, secure, open network and device ecosystem for first responders and 911 professionals throughout the country.”

FirstNet said it would issue work orders to deploy the 53 RANs early this year. It said AT&T was on schedule to deploy its public safety core in March.

“While getting to this point is a major achievement for public safety, our job is not finished,” Mr. Poth said in the FirstNet news release issued on Friday. “We still have much work to do to realize the full potential of FirstNet for public safety everywhere, including rural America, and we will move full speed ahead to make it happen.”

In the blog posting today, he noted steps still ahead and said, “One aspect of our mission that we won’t change is our vigorous public safety advocacy: First responders will continue to have a role in the growth and evolution of their network. We will seek public safety’s feedback on FirstNet products and services and ask them for ideas on how to best deliver public-safety focused innovation.” — Paul Kirby, paul.kirby@wolterskluwer.com