TABLE OF CONTENTS

FirstNets latest legal interpretations make opt-out alternative less

appealing to states, territories

ESChat leverages FirstNet spectrum in pilot LTE networks to deliver

reliable PTT, other services

Links to videos, stories and podcasts

New Jersey, Pennsylvania officials highlight successful public-safety LTE use during papal visit

FirstNets latest legal interpretations make opt-out

10 CONTINUED..
alternative less appealing to states, territories

EDITORS LETTER

FirstNets latest legal

interpretations make opt-out
alternative less appealing to
states, territories
by Donny Jackson | October 20 , 2015

t is a right that state lobbyists fought hard to include in the 2012 federal legislation
that created FirstNet, which is charged with overseeing the development and
maintenance of a nationwide public-safety broadband networkthe ability for a
state or territory to opt out of FirstNet. After last weeks release of the text for 64
FirstNet legal interpretations, many in the industry question whether opt out really
is a practical option.
This is not a surprise. FirstNet
officials have indicated their
intentions on the subject for
s o m e ti m e; t h e f in a l l e ga l
interpretations just codified

t h e m . F i r s t N e t to o k l o g i c a l
positions in the interpretations,
given the o rganizatio ns
mandate to build a nationwide
network with limited funding.

After all, this is going to be a

difficult challenge as a
nationwide project; trying to
integrate a bunch of opt-out
states into the system promises

crisis of 20 0 8, but FirstNet

officials quickly tried to quash
this notion, noting that the law
mandates that revenues be put
back into the network.
Many officials from densely
populated states liked the notion
of putting revenues back into the
network, figuring that keeping
the revenues within the state
would mean that first responders
in their jurisdictions could get
access to a better network with
lower subscriber fees.
But FirstNets legal
interpretations undermine that
idea, removing most of the
reward potential from the risk/
reward equation that governors
must weigh. Without getting into
a lot of legalese, FirstNets
position is that densely
populated states choosing to
opt out must contribute
financially to the nationwide
public-safet y broadband
initiative, just as they would had
t h ey ac c e pte d F ir st N et s
deployment plan for the state.
We need to ensure that any
revenue that s generated
particularly in highly dense,
p o p u l a t e d a re a s t h a t w i l l
generate significant value for
the excess capacity available
that money is appropriately
reinvested back into the network
in a way that benefits the
entire nation, FirstNet Acting
Chief Counsel Jason Karp said
during the last FirstNet board
meeting. We dont want the
national deployment to, in any
w a y, s u f f e r b e c a u s e a
particularly rich state that is able
to generate significant revenue
because of that population
density retains that revenue to
create essentially a higherquality radio access network in
their state than we have in other
localities around the country.
It s c r i t i c a l t h at we a re
leveraging the high-density,
high-revenue-generating areas
in order to pay for the
deployment nationally. We think
thats absolutely what Congress
intended. We think thats the
intent of the act and what the
act says, and we reiterate that
conclusion [in the final legal
interpretations].
What is the risk for an opt-out
state? The biggest factor is how
much it costs a state or territory
to build o ut, maintain and

upgrade the net work in its

jurisdiction.
The good news for states is
that initial deployment figures
should be fairly well known by
the time governors make their
d e c i s i o n s a f te r a l l , b o t h
FirstNet and any opt-out state
will have done ex tensive
research into this area . In
addition, LTE technology is
mature enough that estimating
normal maintenance costs can
be done with decent accuracy.
The bad news for states is that
no one has any idea how much it
will cost to upgrade the network
or when upgrades will happen.
What we do know is that opt-out
states will have to adhere to all
of FirstNets network policies,
no matter how often or when
they may be altered.
Our network policies are
something that are going to be
deployed on an ongoing
basistheyre going to change,
theyre going to be variable for a
long period of time, and theyre
c r i t i c a l , K a r p s a i d . W e
preliminarily concluded in the
original notice and confirm that
our network policies have to
apply across the board, whether
a state assumes that
responsibility or whether its
FirstNet responsibilit y. And
thats key.
Thats key for interoperability,
to ensure that we have one
nationwide network, no matter
who is responsible for the
deployment of pieces of it. [Its
key to ensure] that public safety,
when they cross state
boundaries, are getting the
exact same user experience in
State A as they are in State B,
because we know public-safety
incidents dont stop at the state
border.
In other words, governors will
not know what the ongoing
costs will be, if they choose the
o p t - o u t a l te r n a t i v e . F o r a
governor making an opt-out
decision, the obligation to
remain in sync with FirstNets
technical policies could be
problematic.
What if FirstNet calls for an
u p g rad e to t h e late st LT E
rev i s i o n o r 5 G , w h i c h i s
expected to be deployed by
carriers in less than 10 years
continued on page 10

URGENTCOMM.COM

to be more difficult and could

have a negative impact on its
economic viability.
Before delving further into the
topic, we must provide an
important clarification for anyone
reviewing the opt out alternative
for the first time: choosing the
opt-out alternative does NOT
mean that a state or territory
would actually get out of FirstNet.
The opt out term is used in the
law, but it is not a very accurate
depiction of the alternative.
Under the current law, every
state and territory will be part of
the nationwide public-safety
broadband network overseen
by FirstNet. For states and
territories, the opt-out alternative
is about determining which
entity will build and maintain the
LT E radi o ac c e s s n et wo r k
(RAN) within the jurisdiction.
The path of least resistance is
for a governor to accept the
plan offered by FirstNet, which
then is responsible for all costs
associated with the build out
and maintenance of the publicsafety LTE network within the
state or territory. The alternative
is for the governor to choose the
opt- out alternative, which
would call for the state to deploy
and maintain the RAN within its
borders while continuing to use
FirstNets LTE network core and
700 MHz spectrum.
By law, the decision rests with
the governor of each state or
territory. The reality is that a
governor unilaterally making a
decision to opt outthereby the
state or territory to pay network
costs in perpetuityagainst the
wishes of the state legislature
and others would be taking a
huge political risk, but that is
allowed by law.
S o o n a f te r F i r s t N e t w a s
created, many governors
expressed interest in the opt-out
alternative, which was
understandable it was
something new, and it outlined
a specific role for each governor.
In addition, the opt- out
process got many governors
thinking about myriad
possibilities and synergies.
S o m e s aw F ir st N et a s a
chance to generate revenues
within the state that could be
used to bolster depleted
budgets still suffering from the
aftermath of the global credit

ESChat leverages FirstNet

spectrum in pilot LTE networks
to deliver reliable PTT, other
services
by Donny Jackson | November 10, 2015

IWCES URGENT COMMUNICATIONS

NOVEMBER 2015

ission-critical push-totalk (PTT) functionality

likely will not be part of
LTE equipment for some time,
but Band 14 700 MHz spectrum
licensed to FirstNet promises to
provide the dedicated
resources needed to make
over-the-top applications like
ESChat reliable enough for
f i r s t- re s p o n d e r u s e to d ay,
a c c o rd i n g t o J o s h L o b e r,
president of SLA Corp., which
developed ESChat.
The challenge we always
have is the one that FirstNet is
being built to address, and that
is having dedicated spectrum,
Lober said during an interview
with IWCEs Urgent
Communications. Better than
99% of the time, operating on
the commercial network works.
But, when an incident occurs,
the public utilizes all of the
available bandwidth. If its at a
specific incident site, its often
taken up with pictures and
video, and these things
degrade and impede the
performance of any application
that relies on data, including
ESChat.
FirstNet s dedicated
spectrum resolves that. Using
todays technology, FirstNet is
capable of supporting push-totalk voice and not have it be
affected by whats happening
with the public.
This has been demonstrated
in numerous pilots this year,
with first responders using
ESChat for push-to-talk voice
communications on Band 14
public-safety LTE pilot networks
deployed this year at the FIS
2 015 Alpine World Ski
Championships in Colorado,
the New Mexico State Fair and
the Albuquerque Balloon
F e s t i v a l . T h e re s p o n s e t o
ESChat as a PTT solution was

ver y positive, with FirstNet

Colorado offering the following
assessment from the proof-ofconcept network deployed at
the ski championships.
Push -to -talk (P T T ) is a
requirement, not an option: Far
and away, the most positive
feedback was the abilit y to
have PTT communications on
the LTE device, the FirstNet
Colorado repor t states.
Additionally, there was a strong
sentiment that the responders
desired to use a single device
for all operations. For example,
one first responder said (while
h o lding up his L M R radio)
When can I get rid of this?
S in c e 2 0 0 9, E S C h at h a s
integrated with LMR networks
using conventional radio-overIP (RoIP) gateways, but the
interest level in the ESChat P25
ISSI media gatewaya solution
that leverages the ISSI standard
in P25 to enable interoperability
between a P25 network and
ESChat being used over an LTE
net work has increased
dramatically during the past 12
months, Lober said.
That enables us to take full
ad va nt ag e o f t h e fe at u re s
supported in ISSI, Lober said.
We are able to do not only the
group calling, which is available
with the conventional RoIP
gateway, but we are also able
to take advantage of private
calls from a single LTE ESChat
device to a single P25 radio,
group calls and emergency
calls.
The ISSI also supports
networkwide radio IDs, so each
radio user knows which LTE
user is talking, and vice versa.
And because ESChat includes
integrated mapping, were also
able to overlay the location of
the P25 radios on the ESChat
map screens.

While ESChat is best known

in the industry for its push-totalk capability, SLA engineers
continually have developed
new functionalities in the
application, Lober said.
We have evolved our
product to not only be a pushto-talk product, but an
encrypted, secure
communications solution that
includes push-to -talk voice,
secure text and image
messaging, as well as location
tracking and mapping, he
said. So, weve evolved our
system to include many
features.
The reliability of our system
is well established, and our
product is used by the U.S.
military, the federal government,
state and local law enforcement
across the country, as well as
industry, including some of the
nations largest transportation
c o m pa nie s, h otels, sch o o l
districts and universities.
B u t t h e re li a b ili t y o f t h e
application is dependent
largely on the reliability of the
network, and having a
dedicated network like the one
promised by FirstNet would
a d d re s s t h a t f u n d a m e n t a l
need, Lober said.
It s a game changer for
those of us who require realt i m e i nfo r m a t i o n , a n d t h a t
includes push-to-talk voice,
Lober said. If were able to take
the Band Class 14 spectrum
availability, add that on top of
what were doing with ESChat
and secure push-to-talk voice,
and then we can tie that into the
existing [LMR] radio networks, it
really provides a complete
solution. Now, youve got truly
one ubiquitous system whereby
first responders can
interoperate and communicate
between agencies.

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Live & Historical (Bread Crumb) Tracking & Mapping
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Bittium: Jani Lyrintzis talks about companys name

change from Elektrobit, surprises with durability
demo of Tough Mobile smartphone

Fujitsu: David Oberholzer discusses companys

role in FirstNet early-builder projects

Mutualink: Mike Wengrovitz showcases new

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Beesion: Gustavo Merchan explains how solution

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STORIES

Click on links below to view articles in separate window

September 8, 2015
New Jersey public-safety LTE assets help Atlantic City use video to secure events
September 25, 2015
Preventing a devastating, OPM-like hack of FirstNet
September 29, 2015
FirstNet is sending out an invite (RFP). Will anyone come?
October 1, 2015
New Jersey, Pennsylvania officials highlight successful public-safety LTE use during papal visit
October 2, 2015
FirstNet opts for nationwide acquisition approach for nal RFP
October 5, 2015
FirstNet says opt-out states must share revenues, meet nationwide network policies
October 8, 2015
FirstNet releases cybersecurity plan, seeks comments by Oct. 16for now
October 9, 2015
FirstNet extends comment period on cybersecurity public notice to Oct. 21
October 19, 2015
Congress grants ve-year extension for LA-RICS, other BTOP grant recipients

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trademarks of Fujitsu Limited in the United States and other countries. All Rights Reserved.

New Jersey, Pennsylvania

officials highlight successful
public-safety LTE use during
papal visit
A
by Donny Jackson | October 1, 2015

IWCES URGENT COMMUNICATIONS

NOVEMBER 2015

s Pope Francis visited Philadelphia last weekend, law-enforcement personnel

responsible for ensuring the pontiffs safety had unprecedented access to
real-time video and other key applications, thanks to the use of deployable
public-safety LTE units provided by the state of New Jerseys JerseyNet program.

During an IWCEs Urgent Communications

webinar sponsored by InfoVista, Pennsylvania
State Police Capt. William Williams yesterday
said that the four-site deployable public-safety
LT E n e t w o r k w o r ke d ex t re m e l y w e l l
throughout the Pope Francis visit.
One of the most significant accomplishments
was the proof of concept that it worked and
how it worked in an urban environment during
an incident like this, Williams said during the
webinar, which is available on demand at this
link. The fact [was] that we could stream highdefinition video and that we had full
connectivity the whole weekend, with no
interruptions.
Fred Scalerathe public-safety broadband
m a n ag e r f ro m N e w J e r s ey s O f f i c e o f
Homeland Security & Preparednessechoed
this sentiment, noting that the deployed system
supported about 40 users throughout the
Pope Francis visit, averaging about 4.5 GB per
hour of total usage without ever reaching the
networks maximum capacity.
We got to do a lot of different things, and it
worked very well, Scalera said during the
webinar. Sharing video went well. Overall, if
this proves to be where our network is going,
Im ver y happy, and I think well have a
successful deployment.
To s u pp o r t t h e Po p e Fra n cis v isi t to
Philadelphia, two JerseyNet system-on-wheels
(SOW) trailers were deployed in the upper
levels of separate parking garage and were
connected via microwave to a JerseyNet SOW
in Camden, N.J., Scalera said. In case the
microwave link was disrupted, the sites also
have satellite connectivity, which provides less

data throughput than the microwave link but

wo uld maintain so m e c o m municatio ns,
including all voice communications, he said.
In addition, two vehicles with deployable
LTE gear were used in Pennsylvania to provide
coverage when Pope Francis traveled outside
of the Philadelphia coverage area, such as
when he visited a prison, Scalera said.

Williams said that the statewide LMR system

served as the primary means of communication
for law enforcement during the papal visit, but
LTE communications supplemented and
interoperated with the LMR network.
Because [JerseyNet LTE] was not our
primary means of communication, it was not
utilized extensively by a lot of people, Williams
said. But those who did use it found that it
worked very well. They had phone capabilities
and video capabilities.
Given the success of this deployment,
Williams said he would like to expand the
partnership with New Jersey next year to
provide similar capabilities over a greater
geographic area when Philadelphia host the
Democratic National Convention next year.

Scalera said the Mutualink solution that is

designed to support interoperability and
seamless roaming as a user travels between
the Band 14 public - safet y net work and
co mmercial wireless coverage worked
perfectly during the papal visit.
Scalera said that all sites in the JerseyNet
system were completed by the Sept. 3 0
deadline mandated by law as part of the
B r o a d b a n d Te c h n o l o g y O p p o r t u n i t i e s
Program (BTOP) that funded the public-safety
LTE system. Now that the papal visit is
complete, JerseyNet officials will focus on
testing and optimizing the network, with the
hope of being able to begin running some
applications on the system within a month,
Scalera said.

..LTE network worked extremely well throughout the

Pope Francis visit. One of the most significant accomplishments
was the proof of concept that it worked and how it worked in an
urban environment during an incident like this..

continued from page 3

at the sam e tim e that the

states economy has taken a
massive hit because of
problems in a key industry
sector ? Under the legal
interpretations, the state would
have to find the money
somewhere and pay for the
upgrade within its borders.
Imagine the uproar that would
ensue if a jurisdiction had to lay
off state-police personnel to
fund an upgrade to an LTE
network that troopers were
expected to use.
So, the bottom line is that
FirstNets final legal

interpretations severely limit an

opt-out states potential reward
for building and maintaining its
own RAN, but the risks are
significant. To some extent, an
opt-out state would be writing a
blank check, with FirstNets
network policiessomething
the state would not control
dictating the dollar amount and
when additional payments
would be made.
In addition, an opt-out state
would need to have the
necessary governance and
s u p p o r t i n f r a s t r u c t u re t o
administer the oversight of its
RAN, which will require extra

financial and personnel

resources that many states lack.
The financial factors
associated with the opt-out
alternative are discouraging,
the logistical gauntlet that an
o pt- o u t st ate w ill h ave to
navigate approach the level of
being scar y. Not only is it
complex and full of difficult
timelines for the opt-out state, it
do esn t address the m ost
fundamental issue for any
wireless networkthe terms
associated with accessing the
spectrum needed to operate
the systemuntil the end of
the process.

IWCES URGENT COMMUNICATIONS

NOVEMBER 2015

Here is a summary of the opt-out process:

10

Step 1 FirstNet presents its deployment plan to a state/territory. In the legal

interpretations, FirstNet states that there is some exibility in the plan and stresses
that it is not a contract. Many are interpreting that to mean that FirstNet is not
necessarily bound to meet the terms of the plan; of course, public-safety agencies
always can choose not to subscribe, if they dont like FirstNets implementation of
the plan.
Step 2 After receiving the state plan from FirstNet, the governor for the state/
territory has 90 days in which to opt out of the FirstNet plan for the state. This
timetable is dictated by law. If no action is taken, FirstNet will proceed with its plan
for the state, according to the legal interpretations.
Step 3 If the governor chooses the opt-out route, the state/territory has 180
days to complete its RFP process and submit it to the FCC for its approval. Again,
this timetable is dictated by law. Getting a state-level RFP done in six months
promises to be challenging. As if the logistics were not difficult enough, there also
is the reality that bidders likely will not have all details when responding to the
RFP, because the state will not have a spectrum lease to use FirstNets 700 MHz
airwaves, so the associated costs of using the spectrum probably will not be certain.
Step 4 The opt-out state submits its RAN plan to the FCC. According to the
law, this review would be done primarily to determine whether the opt-out states
plan will be interoperable with the nationwide FirstNet initiative. To some extent,
FirstNets legal interpretation is that this stage is a point of no return for the optout state: if the FCC approves a states opt-out plan, then the state immediately
is on the hook to implement the plan, and FirstNet no longer has an obligation to
build out the RAN in that state. However, it is likely that the state still will not have
a spectrum lease at this point.
Step 5 The opt-out state must get approval from the National Telecommunications
and Information Administration (NTIA), which must weigh the cost-effectiveness of
the opt-out plan. This step is outlined in the law passed by Congress. FirstNets
legal interpretation is that the cost-effectiveness of a states plan should include an
evaluation of its impact on the nationwide initiative, not just its effectiveness within
the opt-out state.
Step 6 Opt-out state/territory must negotiate a spectrum-lease agreement
to use FirstNets airwaves. It is only logical that an opt-out state needs access to
spectrum to implement its RAN. FirstNet is not mentioned in this portion of the law,
which has caused some to believe that the spectrum lease should be negotiated
with NTIA. FirstNets legal interpretation is that the negotiation will be between
the opt-out state and FirstNet, which holds the license to the spectrum.

question whether any state or

territory believes that a legal
challenge would be the best
use of resources, and it could
have negative political
ramifications.
A final issue that the governor
of potential opt-out states should
consider is an intangible one:
the role that the state or territory
wants to play in relation to
FirstNet and the public-safety
agencies in its jurisdiction.
If a governor accepts
FirstNets plan for the state, then
the state or territory can be a
full-time supporter and advocate
for public - safet y agencies
requests with FirstNetit will be
up to FirstNet to come up with
the funding and try to meet the
requests. If the requests are not
met, FirstNet is the bad guy,
and the state/territory can tell
the public-safety agency about
other broadband options,
knowing that it will not impact its
budget.
In contrast, an opt-out state
almost certainly will face some
awkward situations. If a publicsafety agency makes a request
that cannot be met, the opt-out
state or territory becomes the
bad guy for not implementing
it. In addition, there is a chance
that the arrangement will mean
the state budget co uld be
impacted by the willingness of
public-safety agencies in its
jurisdiction to subscribe to the
network, so its advocacy for

public-safety choice could be

met with skepticism.
There also are potential issues
in the relationship with FirstNet,
as well. Many state officials
initially found the opt- out
alternative appealing, because
they perceived that it would give
the state and territory greater
control over the public-safety
b ro adba n d n et wo r k i n t h e
jurisdiction. However, if an optout state has to adhere to
FirstNets network policies, that
level of control has been called
into question.
Now, it should be clear that
F i r s t N e t h a s n o t o b j e c te d
formally to states or territories
choosing the opt-out alternative,
nor should itdoing so would
be in direct opposition to the law
passed by Congress. However,
while staunchly acknowledging
each states right to pursue the
opt-out alternative, FirstNets
final legal interpretations have
made an already difficult opt-out
process about as distasteful as
possible, in the words of one
Beltway source.
Indeed, given the financial,
logistical and intangible factors
involved in the opt-out process,
it is difficult to imagine scenarios
in which governors would want
to pursue this much-debated
alternative to accepting the
FirstNet plan for their states,
unless the rules are changed by
Congress or the courts.

URGENTCOMM.COM

Whether NTIA or FirstNet

should negotiate the spectrum
lease is legally debatable, but
the bottom line is that FirstNet is
part of NTIA. The more important
implication is that an opt-out
state would be sitting at the
negotiating table with FirstNet/
NTIA with very little leverage,
from a legal standpoint. After all,
the opt-out state has to agree to
whatever terms that FirstNet or
NTIA dictate, or it could be
without a public-safety
broadband network entirely
remember, FirstNets obligation
to build a RAN in the opt-out
jurisdiction ended with the FCC
approval. Of course, there may
be other political or publicopinion tactics that a state could
use to improve its negotiating
position.
FirstNet also is subject to the
fundamental rule of government:
if someone doesnt like a law,
they can always try to change it
in Congress or in court. My initial
thought is that it would be tough
to get Congress to revamp the
FirstNet law, but who knows
what the politics will be by the
time that governors make optout decisions.
A legal challenge would be
intriguing, because the law was
written in a manner that certainly
leaves ro o m for debate on
several issues, which is why
FirstNet has spent more than a
year to develop its legal
interpretatio ns. H owever, I

11

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