FCC Gives Opt-Out States Extra 60 Days, Asks for Input on FirstNet Interoperability Requirements
Friday, June 23, 2017 | Comments

The FCC released a report and order that establishes the standards and procedures it will use to review state alternative plans for states that want to opt out of the First Responder Network Authority (FirstNet) and build their own radio access network (RAN). The rules give states that opt out of the FirstNet state plan an extra 60 days to complete a request for proposals (RFP) process, providing for 240 days total.

The 2012 legislation that created FirstNet requires FirstNet to develop a national plan to deploy the RAN within each state but also gives each state the right to opt out and build its own RAN, provided that the state RAN will be interoperable with FirstNet’s core network. FirstNet released initial state plans to the 50 states, the District of Columbia and two territories June 19.

The new rules deal with two main issues — timelines and interoperability — for opt-out states.

Each state has 90 days after they receive a final state plan to make a decision whether to opt in or out of the FirstNet state plan. The FCC directed FirstNet to immediately notify the commission when FirstNet notifies a state, and the FCC will issue a public notice announcing the beginning of the 90-day period and specifying the deadline for the relevant state or states to file opt-out notifications with FirstNet, the National Telecommunications and Information Administration (NTIA) and the FCC.

After deciding to opt out, the governor or “the governor’s duly authorized designee” shall notify FirstNet, NTIA and the commission. “While the statute clearly assigns sole responsibility to the governor for the decision whether to opt in or opt out, we do not believe Congress intended for the governor to be responsible for the purely ministerial act of transmitting notice of the decision to the commission,” the FCC said.

States that opt out have 180 days to develop and complete an RFP. “The statute is unclear as to how far states must have progressed in the RFP process to meet the 180-day ‘develop and complete’ requirement,” the FCC order said.

The FCC said it concluded that states should have additional time beyond the 180-day RFP completion period to assess RFP bids and finalize their alternative plans for commission consideration. The FCC is giving states that have developed and completed RFPs an additional 60-day period to submit alternative state plans to the commission.

“… We believe providing this additional time will provide states flexibility to complete their alternative plans without significant delay and will assist in ensuring that the plans filed with the commission are robust and fully realized,” the order said. “The 60-day window will also allow an opt-out state to focus, within the 180-day period, on efforts to develop and complete its RFP without having to develop its alternative plan in parallel, possibly taxing finite state resources.”

The commission also said it found no indication in the act that a state must have a signed contract to “complete” an RFP. However, the FCC also rejected suggestions that a state should be allowed to resubmit its alternative plan if the commission disapprove of that plan. The statutory remedy of appeal to the U.S. District Court for the District of Columbia is the only remedy available at that point, the order said.

Upon each state filing an alternative plan, the FCC will review the plan and initially determine whether the plan meets relevant filing criteria. The FCC will issue one or more public notices identifying each application that has been accepted for filing, which will trigger the relevant “shot clock.”

The FCC established a 90-day “aspirational” shot clock for commission action, which will start after it issues the “accepted for filing” public notice for each alternative plan. The 90-day shot clock will establish clear expectations for the FCC and for the parties involved to encourage prompt action and avoid delay, the order said.

After the accepted for filing public notice is issued, NTIA, FirstNet, and others granted party status in the proceeding have 15 days to file comment on the alternative plan in the relevant docket. States will then have 15 days to amend their plans and/or file reply comments. State responses will be limited to those points raised in the initial comments, and the FCC said the comment process will not allow a state an opportunity to revise its submission.

“This 30-day pleading cycle allows for some iterative discussion between a state, FirstNet, and interested parties, while still providing a firm deadline and certainty of process,” the FCC said.

All told, including statutory timeframes, the FCC processes and timing provide 12 months from FirstNet’s delivery of final state plans for states to make their opt-out decision, develop and submit alternative plans, and complete the 30-day pleading cycle once plans are filed. The FCC said a state alternative plan must certify and provide evidence that the 180-day timeframe was met.

Any state that chooses to opt out must submit a plan for its proposed state RAN to the FCC. To obtain FCC approval, the state must demonstrate that its plan meets the interoperability requirements of the statute. Plans filed with the commission must, at a minimum, address the four general subject areas identified in the act —construction, maintenance, operation and improvements of the state RAN — and address the two interoperability requirements in the legislation.

The first interoperability requirement must address the RAN-related interoperability requirements of the Technical Advisory Board for First Responder Interoperability. In 2012, the FCC approved the minimum technical requirements submitted by the Technical Advisory Board for First Responder Interoperability. The report set forth the recommended minimum technical requirements for interoperability.

The second interoperability requirement is the state’s adherence to FirstNet network policies relating to technical interoperability. The FCC is seeking comment on the prong-two interoperability criteria. FirstNet submitted a revised interoperability compliance matrix to the FCC June 16.

The public notice will seek expedited comment on FirstNet’s proposals as related to interoperability and the commission’s statutory review. Upon close of the record, the FCC will issue a subsequent order specifically identifying those elements of FirstNet’s network policies that it will consider in evaluating state compliance with the second prong of the statutory test.

“Whatever our final decision on prong two criteria may be, we emphasize that our review of state plans under both prongs one and two will be a purely technical review, consisting of a snapshot evaluation based on the application,” the FCC said in its order.

The FCC will confine its review to the RAN elements of state alternative plans, which it defined as all the cell site equipment, antennas and backhaul equipment, based on commercial standards, that are required to enable wireless communications with devices using the public-safety broadband spectrum including standard E-UTRAN elements such as the eNodeB, and including, but not limited to, backhaul to FirstNet-designated consolidation points. “Thus, we will not examine plan elements pertaining to equipment or applications or issues related to coverage/financing, etc.,” the report said. “These elements are more appropriately the focus of NTIA’s subsequent review of the plan as directed by the act.”

Finally, the FCC said the decision of whether a state may include a separate state network core in its alternative plan is outside the scope of its statutory review responsibility. “Although we will not reject an otherwise qualified alternative plan that includes a proposed state core, we will limit our review solely to the interoperability of the state RAN with the FirstNet network as directed by the act and will not examine possible RAN interconnection with non-FirstNet networks or cores,” the order said.

The order said the commission will treat each state opt-out application as a separate restricted proceeding under its rules with only the affected parties able to participate. At the conclusion of the opt-out notification period, the FCC will issue a public notice identifying the states that have filed opt-out notifications with the commission and establishing individual dockets for each opt-out proceeding. Other persons or entities seeking to participate in a proceeding may petition the commission for leave to intervene based on a demonstrated showing of interest.

“Today’s decision is intended to provide states with a fair and meaningful opportunity to pursue their own network plans without causing undue delay and while still ensuring the integrity of the nationwide network,” an FCC statement said.

“States are entitled to make a deliberate, informed choice to opt out of the network, so long as the statutory requirements are met,” the order said.

“FirstNet commends the FCC for taking this important next step in its rulemaking proceeding for alternative state plans," said FirstNet CEO Mike Poth. "The FCC has an important role to play in ensuring the interoperability of the network. FirstNet thanks the commission for its continuous support and involvement with the success of the nationwide public-safety broadband network and looks forward to working with the commission to ensure that Congress’ interoperability objectives are met for the network.”

The full report and order is here.

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