– TR Daily, January 2, 2018

Complaints aired by the state of California last week as it agreed to opt into the First Responder Network Authority’s (FirstNet) system being constructed by AT&T, Inc., highlight the challenge that AT&T and FirstNet face in ensuring that a nationwide network is constructed in a way that attracts a sufficient number of public safety subscribers.

California, the largest opt-in prize for FirstNet and AT&T, waited until the last day to announce its decision to opt into FirstNet, and then highlighted a number of concerns.

“During our negotiations with AT&T over the past several months, the state identified a number of concerns with the proposed plan for California,” said a letter from Mark Ghilarducci, director of the California Governor’s Office of Emergency Services, to FirstNet Chief Executive Officer Mike Poth. “While AT&T was able to address some of these issues, they could not ensure each of the state’s needs were adequately addressed.”

He outlined concerns regarding interoperability, security, and site hardening.

Regarding interoperability, Mr. Ghilarducci said that “[w]hile AT&T has agreed that all applications it develops will be interoperable across carriers, FirstNet has not made a similar commitment. Initially, the FirstNet plan for interoperability relied upon all public safety users subscribing to FirstNet, which is an unreasonable expectation. FirstNet deployment will be a multiyear process with stunted adoption due to coverage gaps in much of California. During this time, California will have public safety entities utilizing a variety of carriers to support their mobile data needs. To successfully employ mutual aid, FirstNet should require that all applications be interoperable across all systems and carriers.”

As for security, Mr. Ghilarducci said that “AT&T’s core network is not presently Criminal Justice Information Services (CJIS) and California Law Enforcement Telecommunications System (CLETS) compliant. To meet the needs of public safety subscribers, AT&T has proposed an application to enable mobile CLETS and CJIS connectivity. AT&T plans to charge users for this application. California public safety users should not be charged an additional fee to access an application that provides the minimally acceptable security assurances. To remedy this deficiency in their system, AT&T should provide the Net Motion solution at no charge to all CLETS and CJIS subscribers until AT&T obtains CLETS and CJIS certification of the FirstNet Core through the Department of Justice.”

Mr. Ghilarducci also said that recent U.S. disasters “have highlighted the failure to adequately harden cellular network sites. Site hardening should include back-up power and redundant backhaul connections. Many cell sites do not have an alternative power source. During an emergency, back-up power systems need to last days rather than hours as natural disasters make accessibility extremely difficult.”

He said that “AT&T should commit to implementing a site-hardening plan that includes (1) backup microwave connections sites, space permitting and where allowable per local law; (2) seven days of generator backup for all sites, space permitting and where allowable per local law; (3) eight hours of battery backup for all sites, space permitting and where allowable per local law; [and] (4) quarterly inspections to ensure adequate defensible space is established and maintained for all sites.”

In Mr. Ghilarducci’s letter to Mr. Poth, he also complained that the FirstNet process essentially made it impossible to attempt to opt out – a gripe that has been aired by other state officials, including those in New Hampshire, and other stakeholders and observers of the FirstNet process.

“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,” he said. “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 for California ranged as high as $15 billion if it opted out and then did not fulfill the terms of the lease.

Verizon Communications, Inc., raised some of the same process concerns as California officials when it abandoned its plan to bid on California’s request for proposals (RFP) seeking an alternative to the FirstNet plan (TR Daily, Nov. 20, 2017).

“Technical and financial requirements dictated by the draft Spectrum Management Lease Agreement (SMLA) saddled the state of California’s RFP – through no fault of its own – with onerous and vaguely-defined mandates that impacted our ability to create an RFP response we believe best served public safety and Verizon,” the carrier said last month. “Vigorous competition that allows the industry and the marketplace to continue to grow and innovate is in the best interest of public safety and should be everyone’s shared goal. Instead, we believe FirstNet and its corporate partner are rigging the game in order to stifle true open competition.”

In response to the concerns outlined by California, a FirstNet spokesperson said, “We are very pleased to have California join FirstNet and are committed to providing the state’s public safety community with an enduring, interoperable network that will meet the needs of their lifesaving mission. This means ensuring the network will continue to expand, evolve, and innovate for the next 25 years.  And we look forward to working with our partners in California, AT&T who will be deploying the network, and all other entities who stepped up for public safety.”

“AT&T is proud that after months of work with CALOES, the state chose to opt-in,” a company spokesperson said in response to Mr. Ghilarducci’s letter. “This work included attending more than a dozen town hall meetings and hearing from hundreds of local public safety officials about their needs for a first responder network.  We believe that the thoroughness and transparency of the process allowed us to reach a very strong agreement with the state.  We are committed to ensuring this project is a success for the 25 years of the contract and beyond and will work closely with CALOES and public safety officials to address any issues that arise.” —Paul Kirby, paul.kirby@wolterskluwer.com