FirstNet: Is Opting Out an Option?

Adam Stone, Government Technology
Published: December 2, 2014

Although states are mandated to participate in the network that will be proposed by the First Responder Network Authority (FirstNet), there is an opt-out option that would allow states to construct the network themselves, rather than leave the task to the federal government. Many details of the nationwide network remain unknown or undecided, however, which leaves the opt-out question up in the air. But at this early stage, opting out may not be a viable option for most states.

As part of a tax-and-jobs bill in 2012, Congress created FirstNet with the aim of delivering the first high-speed, nationwide wireless broadband network dedicated to public safety, using nationwide 700 MHz spectrum to break down decades-long interoperability and communications challenges.

Congress allocated $7 billion in funding to build the new network throughout 56 states and territories involved. Every state will have to be connected, but no one is obliged to let the feds do the heavy lifting. An opt-out clause lets states choose, if they wish, to build and operate their own piece of the network. But is it realistic?

Bolstered by what looks like sheer common sense, there is a growing sentiment that opting out would be a foolhardy measure. Simply put, why would any state reject government funding and opt instead to draw some vast untold sum from its own coffers to create and run the new network?

Despite such surface logic, some states say they are leaving open the opt-out option, while they wait for myriad unknowns to be resolved. “We’ve got to see what the design is,” said Bill Schrier, senior policy adviser in the office of the chief information officer for Washington state. “I have a committee of police and fire chiefs who will work on that design with FirstNet. If at the end of the process, the chiefs and mayors and county executives cannot get behind that design, I cannot see how we would opt in.”

This wariness of the unknown dominates much of the civic consideration when it comes to FirstNet and the opt-out option. FirstNet has just begun to circulate preliminary questionnaires polling states as to their needs, and has only recently launched a series of state-by-state conversations about the new network. In Ohio, leaders are following that process closely, while simultaneously polling their own internal users.

“We talk to people about this virtually every day,” said Darryl Anderson, program director of Ohio’s statewide Land Mobile Radio system. “We are constantly watching the development of FirstNet, and we are interacting as necessary with FirstNet to make sure we represent the taxpayers and our first responders correctly.”

“We have done our initial outreach to our regional interoperability subcommittees for homeland security purposes,” Anderson said. “Our next logical step will be to go to our 88 counties and try to amass as many potential users of the system as possible.”

Managers of the FirstNet program say they intend to have similar conversations with states in the coming months. According to the FirstNet website, they plan to explore the project’s specifications including:

• construction of a core network and any radio-access network build-out;
• placement of towers;
• coverage areas of the network, whether at the regional, state, tribal or local levels;
• adequacy of hardening, security, reliability and resiliency requirements;
• assignment of priority to local users; and
• assignment of priority and selection of entities seeking access to or use of the nationwide interoperable public safety broadband network and training needs of local users.

If Anderson and other state leaders are taking measured steps toward evaluating FirstNet, it should come as no surprise.

In the first place, few details have so far emerged as to the nature of the network: What it would comprise; how far it might reach; how operations would be organized and who would pay for what. Amid these general unanswered questions, a number of more specific concerns remain open, such as the possible legal issues surrounding the choice to opt in or out.

Suppose, for instance, that FirstNet’s proposal appears too one-sided. “If they put a plan on the governor’s desk that says, ‘Here is what it will do and here is it will cost,’ that’s fine, he will sign that,” Schrier said. “But if they say, ‘We want to use 25 radio towers in various parts of Washington and we don’t want to pay for it,’ well, the governor probably can’t do that because it would be giving a valuable state asset to a non-state entity.”

Maybe the deal would violate state competitive bid requirements, or it might let federal authority pre-empt some aspect of state authority. “We would have to investigate something like that,” said Schrier.

It’s not that FirstNet would be legally problematic for certain, it’s just that no one knows for sure right now, as no final proposals have been formulated. Along these same lines, and perhaps of even more immediate concern, is that no one is quite sure how the money is going to work.

It’s easy to construct a scenario, for example, in which FirstNet cannot afford to operate itself, regardless of who builds it. “There are a number of different ways that capital could be acquired that would offset the cost for building a network, but do they have the number of users in the state to justify the ongoing cost of operating and maintaining it?” asked Robert LeGrande, founder of The Digital Decision consulting firm. He consulted early on the legislation that created FirstNet.

A number of factors will have to go into the consideration of long-term affordability. Perhaps states won’t need a network to extend absolutely everywhere. Maybe they can set up roaming deals with commercial carriers. Maybe they license the network out to utilities, social services and other users. Maybe they can sell excess capacity back to the carriers. There are many variables and few solid answers so far.

On this crucial question of ongoing operations, LeGrande has strong opinions. Failing any sign that FirstNet is going to assume these duties, he said, states should seriously consider contracting out the work.

“This is a complex network that requires care and feeding,” LeGrande said. “I don’t think it is reasonable for a state to hire personnel just to maintain and operate that network. They need to partner with folks who have experience not just in operating a broadband network, but also operating a public safety network.”

Who would that be? Well, there’s the rub. Carriers can run a network, but they’ll play hold music on a service call. That’s no good in public safety. The logical support team would include some mix of commercial carrier talent and expertise drawn from the ranks for land mobile radio network operators. Right now, there’s no such entity in the marketplace, and LeGrande added, “This is not an entry-level position.”

These are big picture questions, most often pondered at higher levels of government. FirstNet typically has been treated as a state issue and perhaps rightly so. Much of the heavy lifting in terms of construction and operation likely will fall on the shoulders of state authorities.

At the same time, public safety is an intimately local affair, and some say the conversation about FirstNet needs to be playing out not just in the state house but also in city hall.

“This is a new dynamic for public safety, especially for local government,” said Yucel Ors, federal advocacy program director for public safety and crime prevention at the National League of Cities. “Many localities currently subscribe to commercial broadband services for law enforcement, fire and EMS, so there will have to be considerable buy-in.”

“The municipalities need to be heavily involved in what is happening in the state. They have enormous amounts of infrastructure that can be leveraged,” Ors said. States could tap those resources more easily, had the role of municipalities been better defined in the law. “There is this assumption that the states will do all the negotiating with FirstNet, which is probably the right place to do it, but the expectations for the municipalities have not been clearly spelled out.”

As the details of FirstNet are shaken into place, Ors said, “There has to be more outreach and more engagement with the municipalities moving forward. They need to be fully considered, even if the state as a whole is not ready to move forward.”

In practical terms, municipal involvement is critical, LeGrande said, since it is only at this level that the true scope of existing assets can be discerned. “Do you know what streets don’t have carrier coverage? Do you know how many users you have and what applications they are using? States need to partner down to the county and local jurisdictional levels to understand these things.”

By the same token, state leaders must also reach outward, engaging utilities and the commercial telecommunications sector to get a full picture of the existing situation. “You’ve got all these utilities, we are overbuilt with fiber, microwave systems, carriers on top of carriers. We’ve got backhaul providers, and we’ve got all these towers,” LeGrande said. “The state needs to know what all these resources are, to know what they can physically bring to the table.”

If assets are fundamentally local, the same may be said even more emphatically about operations. Reflecting on Washington’s recent tragic mudslides, which involved 900 responders and caused 43 deaths, Schrier said issues of operational control could be a deal-breaker.

“Who gets priority on the network? Will it be cops or firefighters, rescue dogs or guys driving bulldozers?” he said. “Somebody who is close to the incident commander needs to determine that. And is it going to be someone in Reston, Va., or someone here in the state of Washington?”

It’s uncertain whether management issues would cause Washington to opt out, “but it’s not clear in the law and so far there haven’t been any public pronouncements,” said Schrier. Thus concern persists.

Jurisdictional questions may run deeper. Some states may reject a scheme that puts too much control of local networks in the hands of federal operators. Partisan concerns may push some Red states to reject the help of a Blue administration, or vice versa, in developing new public safety apparatus.

Bottom line: Why would any state opt out of federal funding and decide to shoulder the bulk of FirstNet development and operations on its own?

• Jurisdiction: Will the system ultimately belong to the states or to the federal government?
• Design: Who determines the structure of the network and will it meet all local needs?
• Operations: Who bears responsibility for the ongoing care and feeding of the system?
• The unknowns: What other factors have not even surfaced yet, in a process that is still in its early days?

Despite the various sticking points, Anderson gives voice to many state leaders when he said that, barring something really exceptional percolating up, the-opt out clause is simply unrealistic. It would cost Ohio about $1 billion to tackle FirstNet without federal help.

“I really don’t see how a state can logically opt out and build out its own data system with the resources states have for public safety and communication,” he said. “We haven’t declared yet, but it doesn’t seem to me that opting out is a logical thing for a state like ours to do. It just comes down to cost.”

This story was originally published by Emergency Management.