Gaps with the FirstNet Opt-Out Process Remain (Op-Ed)

While the FCC's draft order for opting out of FirstNet does clarify much of what had been unclear about the process, it does fall short on some critical points.

by Jeff McLeod, National Governors Association’s Center for Best Practices / June 22, 2017

Earlier this week, the clock began ticking for each governor in the U.S. to make a series of decisions with important consequences for the nation’s public safety.

On June 19, each governor received a draft plan from FirstNet and its vendor, AT&T, for building out a radio access network (RAN) in his or her state. Collectively, the state RANs will make up the Nationwide Public Safety Broadband Network (NPSBN). And later this year, governors must decide whether to accept the plan and opt-in to FirstNet’s RAN, or to opt-out and build and maintain their own RAN.

This marks a significant decision point for our first responders and the public's safety. Regardless of whether a state opts in or opts out, it brings to fruition one of the last recommendations of the 9/11 Commission: to create a nationwide broadband network for exclusive use by our country’s first responders.

The promise of the NPSBN is to allow first responders to communicate with one another — unimpeded — during critical emergencies. If successful, the result will be more lives saved.

To make the right decision for their states, however, governors require clear guidance on the process for opting-out from FirstNet, the Federal Communications Commission (FCC) and the National Telecommunications and Information Administration (NTIA).

Unfortunately, until the FCC released its draft order this past month, guidance had been minimal on what exactly that process entails. Not only does the draft order clarify much of what had been unclear about the opt-out process, it also helps governors make the best decision for their states by extending the deadline for submitting alternative plans from 180 to 240 days. This additional flexibility will provide opt-out states needed time for ensuring alternative plans can pass the stringent interoperability review standards they are obligated to meet. Additionally, the draft order’s opt-out process finally clarifies that states need only select a winning bidder, rather than award a contract.

Further, the order rightly recognizes the statutory role that each governor has in determining his or her state’s opt-in or opt-out status. It also provides governors reasonable flexibility in communicating their decision to FirstNet by allowing a duly authorized designee to represent them. Requiring otherwise would be burdensome and unnecessary.

The order does fall short on some critical points, though. It fails to clarify the definition of interoperability, and it leaves unclear which federal entity is responsible for evaluating the interoperability of alternative RAN plans. States need additional guidance on these points immediately.

The FCC’s guidance is helpful, but gaps with the opt-out process remain. Importantly, NTIA has yet to clarify the procedures it will use to assess alternative state plans.

At its core, the success of the NPSBN depends on governors' ability to make the right decision for their states, which in turn requires that they fully understand the implications of opting in or opting out of FirstNet.

Jeff McLeod is the director of the Homeland Security and Public Safety Division at the National Governors Association’s Center for Best Practices.

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