Monday, February 22, 2016

FirstNet and the looming battle of a States Rights under the 10th Amendment to "Opt Out"?

I recently read the article about the New Hampshire RFP asking for a P3 entitled “New Hampshire gets five RFP bids for a public-safety LTE system, but no opt-out decision has been made.” (Feb 22, 2016, Donny Jackson | Urgent Communications)

The article got me thinking about a State’s Opt Out decision. Does a State have to wait for the FirstNet solution? The answer is no. In fact, the law only talks about the process that FirstNet has to take and how a State may review the FirstNet plan and then decide on FirstNet's proposal. Nowhere does it say anything about a States requirement to actually wait for, or even listen to, the FirstNet plan.

Here is what the law states:

HR 3630
(e) STATE NETWORK.—
(1) NOTICE.—Upon the completion of the request for proposal process conducted by the First Responder Network Authority for the construction, operation, maintenance, and improvement of the nationwide public safety broadband network, the First Responder Network Authority shall provide to the Governor of each State, or his designee—
(A) notice of the completion of the request for proposal process;
(B) details of the proposed plan for build out of the nationwide, interoperable broadband network in such State; and
(C) the funding level for the State as determined by the NTIA.
(2) STATE DECISION — Not later than 90 days after the date on which the Governor of a State receives notice under paragraph (1), the Governor shall choose whether to—
(A) participate in the deployment of the nationwide, interoperable broadband network as proposed by the First Responder Network Authority; or
(B) conduct its own deployment of a radio access network in such State.

The law does not say anything about the State requirement to wait for the FirstNet plan, which by all accounts will be a nightmare anyway. If you look at subsection (2) above, you will note that it only addresses how the State should respond to the FirstNet plan; nowhere does it say that the State has to wait. What will you have to wait for, what process is defined, and who is to say which States will be build out first? Who says a State must wait? I can guarantee you that if New Hampshire hadn’t stood up to solicit an RFP asking for a P3 to facilitate the Opt-Out decision, they would not have even been on the radar of FirstNet as one of the initial rollout States. Kudos to the State of New Hampshire -- they are now on the radar.

How do we define the “absence of law”? Just trying to define the role will confront the States against the Federal Government and the 10th Amendment of the Constitution. “the federal government possesses only those powers delegated to it by the United States Constitution. All remaining powers are reserved for the states or the people”. Okay, who really wants to go there at this moment? I would prefer we just stay out of that fight and ease off the States ability to do what they want. To much politics now days anyway.

Regardless, the State does have a defined process to fulfill the requirements of an “Opt Put” which are defined below:

(3) PROCESS —
(A) IN GENERAL — Upon making a decision to opt-out under paragraph (2)(B), the Governor shall notify the First Responder Network Authority, the NTIA, and the Commission of such decision.
(B) STATE REQUEST FOR PROPOSALS — Not later than 180 days after the date on which a Governor provides notice under subparagraph (A), the Governor shall develop and complete requests for proposals for the construction, maintenance, and operation of the radio access network within the State.
(C) SUBMISSION AND APPROVAL OF ALTERNATIVE PLAN — (i) IN GENERAL — The State shall submit an alternative plan for the construction, maintenance, operation, and improvements of the radio access network within the State to the Commission, and such plan shall demonstrate —
(I) that the State will be in compliance with the minimum technical interoperability requirements developed under section 6203; and
(II) interoperability with the nationwide public safety broadband network.
(ii) COMMISSION APPROVAL OR DISAPPROVAL —Upon
submission of a State plan under clause (i), the Commission (defined as the FCC) shall either approve or disapprove the plan.
(iii) APPROVAL —If the Commission approves a plan under this subparagraph, the State—
(I) may apply to the NTIA for a grant to construct the radio access network within the State that includes the showing described in subparagraph (D); and
(II) shall apply to the NTIA to lease spectrum capacity from the First Responder Network Authority.
(iv) DISAPPROVAL —If the Commission disapproves a plan under this subparagraph, the construction, maintenance, operation, and improvements of the net- work within the State shall proceed in accordance with the plan proposed by the First Responder Network Authority.
(D) FUNDING REQUIREMENTS —In order to obtain grant funds and spectrum capacity leasing rights under subparagraph (C)(iii), a State shall demonstrate—
(i) that the State has—
(I) the technical capabilities to operate, and the funding to support, the State radio access network;
(II) has the ability to maintain ongoing inter- operability with the nationwide public safety broadband network; and
(III) the ability to complete the project within specified comparable timelines specific to the State; (ii) the cost-effectiveness of the State plan submitted under subparagraph (C)(i); and
(iii) comparable security, coverage, and quality of service to that of the nationwide public safety broadband network.

Once again you can easily see that there is no real connection between the FirstNet required process under the law and the State’s requirements to meet the FCCs requirements for technical and self-funding adherence with the law. In essence, the State can put forth its own plan without even considering the FirstNet solution as long as it meets the demands as laid out for approved vendors and technical capability; interoperable, the ability to be self sustaining and equal to, or better than, broadband coverage.

In the end, the law sets the framework for the commissioning of the Public Safety Broadband Network, but it does not specifically step on the toes of the States in its ability to control its own plan to build, operate and prosper from its own deployment strategy. I would imagine that there will be those who believe that the State must wait, but is this a fight you really want to take on – especially now? We all want to build the PSBN to support our First Responders, lets not get in the way of that progress. If a State wants to do its own thing, and has its own plan, then let them.



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Moto

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