The First Responder Network Authority (FirstNet) got a generally friendly reception from lawmakers during a Senate hearing today, although members voiced a number of concerns about the nationwide public safety broadband network, including whether it will serve rural areas, whether there will be enough funding to complete it, and whether it will be affordable to first responders.

During the hearing before the Senate Commerce, Science, and Transportation Committee, several lawmakers echoed the frustrations voiced by FirstNet Chairwoman Sue Swenson about delays that the independent federal entity, which is housed within the National Telecommunications and Information Administration, faces because it is subject to federal rules and regulations, including those dealing with hiring and procurement.

However, FirstNet drew some criticism at the hearing from the Government Accountability Office, which said that while FirstNet has made strides in planning for the deployment of the network, it “lacks certain elements of effective internal controls” and should do a better job of articulating how it will evaluate lessons learned from early builders.

The Commerce Department’s Inspector General also cited a number of future challenges that FirstNet must address if it is to be successful. The IG also said that FirstNet and other government entities have moved to address financial disclosure and procurement problems raised in a report released in December (TRDaily, Dec. 9, 2014).

In his opening remarks, Sen. John Thune (R., S.D.), the committee’s chairman, expressed echoed several concerns in the wake of the recent three-year anniversary of Congress’s creation of FirstNet with passage of the Middle Class Tax Relief and Job Creation Act of 2012.

“The title of this hearing asks whether we are any closer today to having this twenty-first century public safety network. Of course, in a literal sense, we are: the Spectrum Act was enacted; FirstNet has been stood up; consultations with the states have begun; and FirstNet is on the verge of releasing its highly-anticipated draft Request for Proposals (RFP),” the senator said.

“But in other ways, we are still a very long way away from having an interoperable public safety network. There are a great many things that can go terribly wrong unless good decisions are made right now,” Mr. Thune added. “For example, FirstNet’s forthcoming RFP will give us a sense of whether a network can be built to meet the needs and expectations of a diverse audience of emergency responders in a cost-effective way that secures FirstNet for future generations.  FirstNet must work diligently to make itself a self-funding entity because, frankly, we are not in a budget environment that can easily tolerate spending more than the $7 billion in taxpayer dollars that has already been committed to the network.

“We are also confronted with many pressing and unanswered questions due to the complexity of establishing a new communications system,” the senator added. “Stakeholders, including many in my home state of South Dakota, have questions about what FirstNet will mean for them. There are legitimate concerns about how much network access will cost local police and fire departments who are already dealing with constrained budgets.  And, if the network is competitive from a cost perspective, many wonder whether it will be appreciably better than what first responders currently use. I know FirstNet is aware of these issues and I encourage the organization to be sensitive to the unique challenges of local communities.”

Mr. Thune also noted that he asked GAO last year to study FirstNet and said that he hopes the authority “will take this constructive criticism seriously and will improve its approach to building the network. Specifically, I urge FirstNet to more fully assess the risks it may face in pursuing its laudable objectives. I also ask FirstNet to implement a detailed data-analysis plan that builds upon the valuable lessons learned from the early builder projects. I share GAO’s view that, without such a plan, FirstNet might not take full advantage of the sizeable federal investment that has already been made in these early builder projects.”

Sen. Bill Nelson (D., Fla.), the committee’s ranking member, said that “there have been a few bumps along the way” for FirstNet. But he said that FirstNet and the Commerce Department “have taken steps to remedy” concerns raised by the Commerce IG and GAO.

“I am confident that FirstNet’s board and executive leadership team will redouble their efforts to carefully abide by all applicable rules and regulations going forward and refine their operations, where it makes sense, to incorporate GAO’s suggestions,” Mr. Nelson added. “This is even more important given the limited federal funds for this critical effort.”

In his testimony, Mark Goldstein, director-physical infrastructure issues for GAO, noted that its findings were preliminary and that it is finalizing a report on FirstNet.

He said that GAO has found that FirstNet “has made progress carrying out” its mission “but lacks certain elements of effective internal controls. FirstNet has made progress establishing an organizational structure, planning the nationwide public-safety broadband network, and consulting with stakeholders. Nevertheless, stakeholders GAO contacted cited upcoming issues, such as deciding the level of network coverage, which will be difficult for FirstNet to address as it continues to carry out its responsibilities. With respect to internal controls, FirstNet has begun establishing policies and practices consistent with federal standards, but it has not fully assessed its risks or established Standards of Conduct. Given that FirstNet faces a multitude of risks to achieve its complex objectives, fully assessing risks would help FirstNet respond to risks in a proactive way. Developing standards of conduct would help FirstNet address conduct and performance issues in a timely manner.”

“Our preliminary results indicate that, although FirstNet has set objectives and taken some steps to assess risks it has not yet fully assessed risks it may face in accomplishing its objectives,” the testimony said. “Specifically, FirstNet has set three key objectives and has further delineated how it will accomplish these objectives in a ‘roadmap’ that identifies additional long-term and short-term objectives and milestones. To support its development of this roadmap, FirstNet created a ‘risk register’ that identifies some risks related to its financial sustainability as well as possible counter-measures.

“However, FirstNet officials told us in November 2014 that they had not yet fully assessed risks because they were in the process of defining risk factors and, again in December 2014, because they were in the process of conducting a legal compliance risk assessment of certain key risk areas,” Mr. Goldstein said. “In December 2014, FirstNet officials also said that they intend to perform periodic risk assessments in various areas to manage risks on an iterative basis. However, as of February 2015, FirstNet has not yet completed these risk assessment activities; therefore, we were unable to evaluate them and it remains unclear how effective FirstNet’s efforts will be in helping it to identify and respond to obstacles to fulfilling its responsibilities.”

Mr. Goldstein also said that “FirstNet has taken steps to collect and evaluate information and lessons from the five ‘early builder projects’ that are developing local and regional public-safety networks, but could do more to ensure that it properly evaluates and incorporates these lessons. For example, FirstNet has asked the projects to report on the experiences of their networks’ users and has assigned contractors to collect and log lessons. However, preliminary results indicate that FirstNet does not have a plan that clearly articulates how it will evaluate those experiences and lessons.

“GAO has previously found that a well-developed evaluation plan for projects like these can help ensure that agencies obtain the information necessary to make effective program and policy decisions,” he said. “Given that the early builder projects are doing on a local and regional level what FirstNet must eventually do nationally, an evaluation plan can play a key role in FirstNet’s strategic planning and program management, providing feedback on both program design and execution and ensuring FirstNet has not missed opportunities to incorporate lessons the projects have identified.”

FirstNet’s plan “should include, among other things, a detailed data-analysis plan to track performance and evaluate the project’s final results,” GAO said.

Another challenge that FirstNet faces is the cost of building the network, Mr. Goldstein noted, citing estimates that it could cost from $12 billion to $47 billion over the first decade.

In his testimony, Commerce IG Todd Zinser cited his report on FirstNet that was released in December, saying that all of its recommendations are being implemented.

He also said that last November, his office “initiated an audit of FirstNet’s technical development of the NPSBN. We initiated our audit after coordinating with the GAO, which had already started an ongoing review. Our objectives are to evaluate and assess FirstNet’s efforts and progress to develop the technical design aspects for the NPSBN against key technical requirements and standards, the requirements of the Act, stakeholder requirements, and established performance metrics and milestones. These activities are central to FirstNet achieving its mission to ensure the creation, deployment, and operation of a single, nationwide network design of the NPSBN. We plan to issue a final report on our audit later in FY 2015.”

Mr. Zinser also cited several challenge facing the Commerce Department and FirstNet, including ensuring that there is enough money to build the network, determining what assets will be contributed by government and private entities, addressing “internal control weaknesses” and “staffing and organizational issues,” and completing consultation.

In her opening testimony, Ms. Swenson cited progress that FirstNet has made since its board was appointed in August 2012, while acknowledging that it has had “growing pains.” She noted that it plans to issue a comprehensive network RFP later this month, released a second public notice this week (TRDaily, March 9), and said it has met the major milestones of its road map. But she said FirstNet has undertaken an initiative that is “unprecedented, complicated, and one that faces headwinds each and every day.”

In particular, she cited “federal rules and processes” that have been “extremely challenging at times.”

“I know there are some in the stakeholder community who would have liked to see more progress at this point – I would too. But the fact remains – we are a Federal entity subject to Federal rules and regulations,” she said.

But she added that there is some hope on the horizon. FirstNet has discussed with Commerce Secretary Penny Pritzker “areas where processes and cycle times need to be improved and she has committed the necessary resources” to achieve that. “The first two areas we’re exploring are the hiring process and Procurement,” she said.

“To the degree that FirstNet can assume responsibility for functions like hiring and procurement, much like we have for Finance, we would be in a position to have more control of our destiny,” Ms. Swenson said, making a point she would come back to again and again during the hearing. “I believe that having people dedicated to these functions, whose first priority is FirstNet, would enable us to move things along quickly and efficiently while still adhering to the Federal rules and regulations under which we operate.”

Ms. Swenson said later that it can nine months to a year to hire a FirstNet employee, a fact that means it finds it difficult to recruit some candidates. As for internal Commerce Department and NTIA processes, she also said it can take two months to just write a job description.

In her written testimony, Ms. Swenson also stressed that FirstNet has worked “to strengthen our compliance processes. FirstNet has also incorporated lessons learned from an Inspector General (OIG) report examining certain processes relating to Board member financial disclosure filings and identification of potential conflicts of interest and procurement oversight practices. FirstNet has a positive working relationship with the OIG, and we look forward to continuing our open and constructive coordination with this office.”

In his testimony, Deputy Commerce Secretary Bruce Andrews said that his department concurred with the IG report and has acted to implement its recommendations.

“To be clear, administrative errors were made along the way, and the Department takes those mistakes seriously,” he said. “The Department has taken significant steps to address these errors. For example, we are implementing increased review of financial disclosure reports filed by FirstNet Board members and staff, increasing the level of review of potential conflicts arising from FirstNet acquisitions and other matters, and working to ensure that FirstNet and Department employees receive appropriate ethics training. In addition, we have provided additional training to and oversight of the Department Contracting Office handling certain FirstNet contracts.”

Mr. Andrews added that “we know and understand that the FirstNet mission will not be fulfilled quickly. We want FirstNet to set ambitious, but realistic time frames and deadlines. And we understand that some internal deadlines have not and will not be met. None of that undermines the hard work being performed by the terrific team in place at FirstNet.”

Keith Bryant, president and chairman of the International Association of Fire Chiefs, testified that “there was skepticism from some in public safety after FirstNet was formed that our concerns were not being heard initially and that the network would not end up being a mission-critical network.”

But Mr. Bryant, who is chief of the Oklahoma City Fire Department, said that under Ms. Swenson’s leadership, “FirstNet has sought greater input from the Public Safety Advisory Committee (PSAC) and engaged with public safety far more than previously.”

“We believe FirstNet has worked to create opportunities for the public safety community to help shape the design of the network in several states and territories,” he added. “For instance, FirstNet Board members, including Chair Swenson and executive-level staff, have traveled throughout the country over the past year, reaching out and connecting with local and state public safety officials. This outreach has dramatically improved over the past year and we look forward to it continuing as the network is deployed.”

“While there are still gaps in understanding and agreement during these in-person meetings on what the final network will look like, how much it will cost for public safety to use, and the network’s exact coverage areas, these are exactly the types of questions that should be – and are being – asked and debated at state consultations throughout the country,” Mr. Bryant stressed.

Ms. Swenson and Mr. Andrews told the lawmakers that FirstNet so far has been unsuccessful in convincing the Office of Personnel and Management to give FirstNet direct hiring authority, which would greater streamline the hiring process. The first request to OPM was rejected and there has been no response to the second request, they said.

But Mr. Andrews said that Commerce has moved FirstNet to the department’s alternative hiring process, which he said is more streamlined than the OPM process.

Sen. Richard Blumenthal (D., Conn.) said he was surprised that it takes FirstNet nearly a year to hire someone due to the federal government’s hiring rules. He suggested that FirstNet is “crippled by procurement procedures,” and he declared, “The federal government is failing you.” The senator added, “We have an obligation to compel the relevant agencies,” such as OPM “to do better and to do more.”

Sen. Joe Manchin (D., W.Va.) also expressed frustration by the red tape that FirstNet encounters, including the required interagency review for its annual report and the difficulty it faces in hiring people.

In response to a question from Sen. Cory Gardner (R., Colo.) and other lawmakers about whether FirstNet will be able to construct the network in rural areas, Ms. Swenson said again and again that it would – that, in fact, such rural deployment is one thing that makes it unique from commercial networks. She noted that the second notice released this week goes into depth about the need for revenues in opt-out states whose network and user fees surpass the costs of constructing their radio access networks (RANs) to be distributed to other states where the cost of deployment is higher and expected revenues are lower.

“We take the rural coverage very, very seriously,” Ms. Swenson told Sen. Thune. “In fact, it’s as high a priority as urban.” She added that in meetings with states, FirstNet officials find out what priorities they have, “which then we’re going to feed into the RFP process.”

Mr. Thune asked Ms. Swenson if she were concerned that some people could “lose confidence” in FirstNet if the RFP is not released soon. She noted that a draft RFP is scheduled to be considered by FirstNet’s board at its March 25 meeting and that the final RFP would be released “towards the latter part of the calendar year.”

Sen. Thune asked if anything could delay the timeframe for release of the final RFP. “I’m not aware of any,” Ms. Swenson replied, before saying that the schedule could get pushed back slightly based on responses to the draft RFP.

Sen. Kelly Ayotte (R., N.H.) said that some first responders in her state are “saying, ‘What’s the benefit of FirstNet?”

“I don’t think your feedback is different than what we hear,” Ms. Swenson replied. Among the benefits she said FirstNet needs to educate first responders about are rural coverage, a dedicated network, priority and preemption, and a hardened network. “We have to create a compelling value proposition that gives them more value than they have today,” she added.

Ms. Swenson also repeatedly said that she was confident that FirstNet’s business plan would allow it to be self-sustaining, but she also said the RFPs will help determine if the assumptions are correct. “We believe that there is interest in our spectrum” by partners, she said. If FirstNet fails to realize the value of those frequencies, “we could literally fold up our tent and go home.”

Ms. Swenson also said that FirstNet has changed its thinking on requiring an inventory of public assets in states as an early step in the process. She said the LA-RICS early builder project showed it how difficult it can be to sign agreements with localities and hammer out excess capacity leases. So instead FirstNet will issue its comprehensive network RFP and find partners and then see if public assets can be used. She noted that depending on who owns those assets, they may be part of responses to an RFP.

Ms. Swenson drew a big laugh when she answered a question from Sen. Deb Fischer (R., Neb.) about when she expects the network to be “fully operational.” Ms. Swenson indicated that it was premature to speculate. When asked if she thought FirstNet would be fully providing service by 2022, Ms. Swenson said, “If we don’t, we should be shot.”

Several members of the committee stressed the importance to states of the second phase of SLIGP (State and Local Implementation Grant Program) funding. In response to a question from Sen. Manchin on when those grant funds will be released, Mr. Andrews said he expects movement on that phase of funding in the “next couple of months.”

An NTIA spokeswoman told TRDaily later in the day that “NTIA and FirstNet have been coordinating closely on the second phase of SLIGP activities. We expect in the next several weeks we will be making an announcement regarding details of phase two of SLIGP.”

Sen. Roger Wicker (R., Miss.), chairman of the communications, technology, innovation and the Internet subcommittee, complained that NTIA canceled a prospective early builder project in his state even though it was “weeks away from going live.” “We in Mississippi are disappointed and upset,” he said. Mr. Andrews said that the plan for the Mississippi project did not provide the details required by Congress of BTOP (Broadband Technology Opportunities Program) grants. “We wanted to try to make this work,” he said.

Sen. Steve Daines (R., Mont.) said he was concerned about FirstNet’s “definition of rural,” and added that there is little commercial LTE coverage in the state.

Sen. Amy Klobuchar (D., Minn.), Senate co-chair of the Congressional NextGen 9-1-1 Caucus, stressed the importance of NG-911 deployment being incorporated into the FirstNet system. Ms. Swenson said that FirstNet has an “ongoing dialogue” with the 911 community.

After today’s hearing, Ms. Swenson spoke briefly with reporters, saying that the senators “were quite receptive to our concerns, and I think are willing to support us in some of the challenges that we have.”

As for GAO’s criticism that FirstNet has not established a regime for properly evaluating lessons learned from early builders, she said, “We’re a startup, and I think people in the federal government are used to a lot of process and documentation. We actually have a lot of interaction with the people who are on the ground with the early builders. … We’ve had 61 kind of significant learnings from those. Those are fed into the technical team and into the RFP.”

Ms. Swenson added, “Maybe there’s more documentation that needs to occur, but I think we’re doing a pretty good job of sharing the information that we learned.”

As to GAO’s suggestion that FirstNet needs to improve its internal controls, Ms. Swenson noted that GAO said it has made progress, adding, “It just takes time to get those things in place.”- Paul Kirby, paul.kirby@wolterskluwer.com

Courtesy TRDaily