FCC Approves Rules for Reviewing State FirstNet Opt-Out Plans

Commissioners approved 3-0 rules on first-line review by the FCC of state plans to opt out of FirstNet. Commissioners said the rules give states a legitimate choice and path forward if they don’t want to set up their own networks. Earlier this week, FirstNet and AT&T transmitted plans to states and territories (see 1706190072).

The rules specify that for a state to opt out, it must file an alternate plan within 180 days of receiving the proposed plan from FirstNet, which means a state must have issued a request for proposal, received bids and made a vendor selection in that time frame, FCC officials said Thursday. A state will then have up to 60 days to file its plan with the commission. The order also allows states to request confidentiality for elements of their plan containing sensitive information, officials said.

The rules say the commission will determine whether a state alternative plan demonstrates compliance with the recommendations of the FCC Technical Advisory Board for First Responder Interoperability approved by the FCC in 2012 (see 1206250059), officials said. They also say FCC review is limited to the review of the interoperability of the radio access network, officials said. It directs the Public Safety Bureau to seek comment on an expedited basis on FirstNet’s proposed matrix detailing areas of responsibility for the FCC, which FirstNet recently filed.

Commissioner Mike O’Rielly said the FCC’s 90-day shot clock for states to make a decision on whether to opt out of the national network should be more than “aspirational” in that it potentially allows states more time if the shot clock is suspended. “The commission has a history with aspirational shot clocks that seem to be stopped and started at will,” he said. “They have proven to be as reliable as a sundial on a cloudy day.” But O’Rielly said the item clarifies that the shot clock will be suspended only for special circumstances “such as a national, state or local emergency that requires diversion of commission staff resources to address the situation,” he said. “I expect the commission to live up to this commitment.”

O’Rielly said as a congressional aide, he pushed for the FCC to have a larger oversight role on FirstNet. “I didn’t win that policy argument,” he said.

“I fully believe in FirstNet’s mission and personally hope that each state will elect to opt in, but Congress expressly and rightly afforded each state the ability to opt out of FirstNet, and this option is what we sought to capture in today’s order,” Commissioner Mignon Clyburn said. “If some say that opting out is an impossible feat, my answer is that was not Congress’ intent. Congress intended to give states a meaningful, if difficult, opportunity to decide if it is in their best interest to submit an alternate plan to the commission.” Clyburn said commissioners are generally on the same page on public safety issues, unlike the “heated debate” on some other issues.

Chairman Ajit Pai called the order “a significant step forward” toward meeting FCC responsibilities on FirstNet. "Consistent with duties entrusted to the FCC by Congress, [it] will help ensure that state-built portions of the network are interoperable with the core network so that public safety officials can communicate seamlessly with each other during emergencies," said a Thursday FCC news release.

“The public safety community advocated for a single, nationwide broadband network and they continue to underscore the need for this network today,” said FirstNet CEO Mike Poth. “The FCC has an important role to play in ensuring the interoperability of the network.”

The regulator was right to move quickly on rules for states to opt out of the network, blogged Joan Marsh, AT&T senior vice president-federal regulatory. “It is critical to our nation’s first responders that states that propose an alternative to FirstNet’s national public safety broadband network fully demonstrate compliance with the statutory requirements.”