Is FirstNet Rebranding AT&T’s Network as the Nationwide Public-Safety Broadband Network?
By Al Catalano
Tuesday, September 05, 2017 | Comments

After an extended deliberative process and pursuant to issuing a request for proposals (RFP), the First Responder Network Authority (FirstNet) selected AT&T as its partner to build, operate and maintain the nationwide public-safety broadband network (NPSBN). The actual terms of the agreement between FirstNet and AT&T remain unavailable to the public for proprietary reasons. However, what has been revealed in public statements and in trade press reports may raise questions about whether the AT&T proposal accepted by FirstNet tracks the vision Congress had when it created FirstNet.

FirstNet Spectrum Held in Reserve?
As mandated by Congress in the Middle Class Tax Relief and Job Creation Act of 2012, the FCC licensed the 758 – 769/788 – 799 MHz band to FirstNet on a nationwide basis. This legislation was the culmination of a persistent effort by the nation’s public-safety organizations to secure a 20-megahertz block of 700 MHz spectrum for broadband use by first responders in urban and rural areas across the country. As recognized by the FCC, the “act charges FirstNet with responsibility for establishing and overseeing a ‘nationwide interoperable public-safety broadband network’ operated in this spectrum.” Emphasis on this spectrum.

The AT&T proposal adopted by FirstNet appears to essentially make the AT&T network the heart of the NPSBN with the FirstNet 700 MHz spectrum playing, at best, a supporting role in parts of the country. FirstNet has widely promoted that the entire AT&T network will be available immediately to first responders, with priority and pre-emption available on the Long Term Evolution (LTE) portion of the network. FirstNet’s beachfront spectrum will be used as part of the NPSBN where deemed necessary by AT&T. In testimony before Congress July 20, an AT&T executive acknowledged that it will use the 700 MHz FirstNet spectrum where added capacity is needed by the AT&T network.

Exactly how much of FirstNet’s licensed spectrum is intended to be incorporated into the NPSBN by AT&T under its contract with FirstNet is a carefully guarded secret. In its congressional testimony, AT&T represented that it will be “significant.” However, when pressed for a percentage on how much of the geography of the United States will be covered by the buildout of licensed FirstNet spectrum, the AT&T executive declined to provide a specific answer saying this information is “proprietary” and cannot be disclosed — even to Congress.

Rural America
The act also speaks in terms of “buildout” and “construction” to meet rural milestones. However, parts of rural America will apparently not see NPSBN base stations deployed on any spectrum. The AT&T plan adopted by FirstNet apparently will rely on deployables, such as cells on wheels (COWs), in those areas of rural America in which neither the AT&T network nor the networks of potential roaming partners extend. In some cases, these deployables may take many hours to reach the site of an incident. How this approach meets the intent of Congress in mandating rural milestones for buildout of the NPSBN is an open question.

Public Safety Grade
FirstNet and AT&T have not articulated the meaning of a public-safety-grade facility. At the congressional hearing, both AT&T and FirstNet struggled in articulating the meaning of this concept, essentially saying that there is no one definition. This lack of clarity is unfortunate because a fundamental purpose of the legislation creating FirstNet was to make sure that public safety would not have to rely on a commercial network that is not sufficiently hardened. Groups such as the National Public Safety Telecommunications Council (NPSTC) have developed detailed descriptions of what the first responder community considers public safety grade. One only need look at the devastating results of Hurricane Sandy, which knocked out service in 25 percent of the cell towers in its path, to understand the importance of this issue to public safety.

Priority and Pre-emption
The concepts of priority — first responders go to the head of the line — and pre-emption — first responders knock other users off the network — under FirstNet’s plan also raise concerns. Following acceptance of its proposal by FirstNet, AT&T raised the issue of whether the FCC’s net neutrality policy, which is aimed in part at minimizing prioritization of Internet-based traffic could complicate its ability to provide priority and pre-emption to public safety users on the AT&T network. Congress or the FCC may eventually change the 2015 Open Internet Order, consistent with the proposal recently released by the FCC. Nevertheless, it is striking that AT&T is concerned with the potential impact of net neutrality on first responder priorities under the plan adopted by FirstNet.

As originally intended under the act, first responders on FirstNet’s 700 MHz spectrum would be entitled to pre-emption, with the potential that non-public-safety or less essential users could lose access to the network during emergency situations. The statute is based on the premise that these secondary users would be well aware of their lower status on the FirstNet spectrum and would be willing to accept this condition in exchange for the right to access the NPSBN.

The proposal to deploy on AT&T’s network flips this concept on its head. Under the plan adopted by FirstNet, the users who are subject to pre-emption during an emergency could potentially be members of the public who are depending on AT&T’s network. It is not entirely clear from public statements if AT&T customers will lose access to the entire network, and if so, under what circumstances. At a minimum, this is an issue that deserves further clarification.

The spectrum licensed to FirstNet is intended under the act to be the centerpiece of a hardened NPSBN that serves public-safety agencies throughout America. It can be argued that the plan adopted by FirstNet is, in effect, little more than a rebranding of the AT&T network as the NPSBN, which raises substantial legal and policy questions.

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Al Catalano is a counsel with Keller and Heckman. He has more than 30 years of experience in telecommunications regulatory and legislative matters, domestic and international joint ventures, litigation and transactions involving communications, properties and investments. He represents states and other entities in matters related to the buildout of the First Responder Network Authority (FirstNet) nationwide public-safety broadband network.



 
 
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