Former governors criticize FirstNet effort; congressional oversight hearing set for next week

FORT WORTH, Tex.–Former governors Jeb Bush and Martin O’Malley took to the stage at the Competitive Carriers Association show for a fireside-chat-style discussion of public safety communications that was more than a little scorching in its criticism of the First Responders Network Authority.

FirstNet awarded a $6.5 billion contract to AT&T earlier this year to build out a nationwide LTE network for public safety use, and 27 of the 56 U.S. states and territories have so far “opted in” to allow AT&T to build out the FirstNet network in their area. Opting in does not obligate states’ first responders to use the FirstNet network.

Both Bush and O’Malley acknowledged to the audience that they sit on the board of Rivada Networks, which was one of three known companies that competed for the national contract, two of which were excluded from the “competitive range” of the contract. Rivada sued over its exclusion and was rebuffed in court, then vowed to take its battle to the states and persuade them to opt out of the nationwide AT&T build.

As former governors, both men had sharp words for federal control of the contract process and the network itself. O’Malley called the deal being offered to states “a pig in a poke”, while Bush categorized it as “this is not ground-up, this is from Mount Washington, lighting bolts being sent down.” O’Malley said that states felt threatened by AT&T and stiff penalties — between millions and billions — that states face if they opt out and their opt-out network fails, referring to this as “third-world thuggery.” AT&T was indeed judged by FirstNet to be the only company in the “competitive range” that had bid on the contract and could meet the criteria that FirstNet was demanding, according to the court ruling on Rivada’s exclusion from the competitive range, and O’Malley made a number of critical references to the “sole source” contract and state plans that have been issued through a limited-access online portal, with what he said was a lack of transparency around AT&T’s coverage and build-out plans as well as what accountability mechanisms are in place. In addition, there was criticism that what was intended to be a “purpose-built, hardened, secure network”, as O’Malley put it, will be operating as essentially a part of the AT&T network. AT&T has offered public safety access to all of its existing spectrum and is supporting prioritization for first responders’ traffic, with preemption capabilities on the way, but has sidestepped questions about Band 14-specific build-out plans (Verizon is also stepping up its prioritization and preemption capabilities, plans to build a public safety-specific core network and also says that it plans to compete aggressively with FirstNet on pricing). AT&T executives have said that FirstNet funding will help them turn up Band 14 coverage at the same time that they do other, non-public-safety-specific upgrades to their network.

“We now have more than 60 megahertz of fallow spectrum that we’re ready to light up, and we’ll be deploying all the bands simultaneously starting this fall when states begin to opt in to the FirstNet,” said AT&T CEO Randall Stephenson on the company’s April call. “The efficiencies we’ll gain from climbing the tower once to put up multiple bands of spectrum — those efficiencies are significant.”

If a state opts out by the initial deadline, Bush said, “that doesn’t necessarily mean that they will stay opted out — but it gives the state that that chance to ask the questions that I’m sure many people are having.” O’Malley pointed out that with the rise of smart city deployments, particularly around public safety use cases, there are future “sensors that will need to be part of government and governing, and public safety” and that there needs to be assurance that the spectrum set aside for public safety communications by Congress after 9/11 — the 20 MHz of Band 14 spectrum that FirstNet holds — will sufficiently support such internet of things applications.

Contacted by RCR Wireless News for a response to Bush and O’Malley’s comments, a FirstNet spokesperson issued a statement which said, “It’s unfortunate that some feel the need to resort to name calling instead of having a substantive conversation on the communications needs of our nation’s first responders. FirstNet, however, remains focused on public safety. We look forward to working with our partners in the states and territories as we have done for several years to ensure the successful and speedy deployment of the Nationwide Public Safety Broadband Network – opt in or opt out – in the coming months.”

In terms of the fees and penalties associated with the Spectrum Management Lease Agreement if a state’s opt out network should fail — which both Bush and O’Malley criticized — FirstNet responded that “the SMLA is required by FirstNet’s enabling statute to ensure that an opt-out state’s deployment, operation, and maintenance of their portion of the network – the RAN – is sustainable and supports the nationwide public-safety broadband network. The SMLA terms and conditions are fair and balanced to ensure the state’s network is self-sustaining for 25 years. Further, they are in parity with the terms and conditions that FirstNet’s nationwide contractor is expected to meet in opt-in states.”

Governors must make opt-out decisions by Dec. 28th. If they decide to opt out, they have additional time to issue an RFP and present a formal opt-out plan to the Federal Communications Commission as well as to negotiate spectrum lease terms with NTIA. If they make no decision, states are automatically opted in.

“Smarter governors,” O’Malley said, are going through an RFP process in order to assess their options. FirstNet and AT&T have limited public information about intended coverage areas and build-out information, citing both competitive and security issues to free flow of that information, which was a point of concern among the states prior to the plans being released. FirstNet is also exempt from federal Freedom of Information Act requests. Other states which have posted alternative RFPs or requests for information include California, Colorado, Pennsylvania, Michigan, Alabama, Arizona, Wisconsin and Massachusetts; Arizona and Alabama have both since opted in while the other states listed have not yet made final decisions. Texas has been the largest state to opt in thus far.

Outside of the CCA context, a third governor is urging states to “pause” in opt-in/opt-out decisions. New Hampshire Governor Christopher Sununu wrote a recent letter to the other governors of states and territories and noted that his state’s Statewide Interoperability Executive Committee had unanimously recommended that the state opt out of the FirstNet build and contract with Rivada Networks.

“I believe there are some very important questions that still need to be answered, and I urge each of you to hold on on making a final decision while we seek further information from federal officials,” Sununu wrote, adding that New Hampshire is going to seek “clarification from federal officials on fees and penalties that may be imposed by FirstNet in the event that an opt-out is unsuccessful. Our initial review of these fees and penalties has raised some serious questions, and I believe each of us must have the answers to these questions before we make our final decision.”

In response to Sununu’s letter, Rep. Marsha Blackburn (R-Tenn) has called for an oversight committee meeting on Nov. 1 with a focus on “state perspectives”.

“Nationwide interoperability for our first responders has been a long time coming, and it’s critical for their sake and the public’s that we get this right. As next week’s hearing demonstrates, we are committed to monitoring FirstNet’s progress to ensure it brings modern communications capabilities to the brave men and women who keep us safe. It’s vital that we deliver on a system that our firefighters, police officers, EMTs, and all those on the frontlines of public safety can rely on,” said Blackburn.

FirstNet pointed to its years of outreach and communication at the state level as evidence of its good faith and that it is responding to first responders’ needs in its plans for the AT&T network. “We have been consulting with all of the states and territories for several years to get their feedback on the network and involve them in the design of the network, the procurement that led to the network contract selection, and planning for the network, including their state plans. We have provided the opt out information to any state that has asked for it to ensure they have what they need to make an educated decision about their plan,” FirstNet responded.

The organization has also been tweeting items that address a number of the critical points that were made at CCA.

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