In FirstNet-BTOP Negotiations, LA-RICS Scores First Spectrum Lease Agreement

In February, the FirstNet board decided to negotiate spectrum leases (CD March 29 p7) with the projects in an attempt to reactivate them and turn them into FirstNet pilots. The board failed to reach an agreement in its initial 90-day negotiating window and earlier this month, resolved to extend the period through July 12. Among the seven projects is the Los Angeles Regional Interoperable Communications System Authority, known as LA-RICS. That project’s board approved a spectrum manager lease agreement Wednesday, negotiated with FirstNet board member Sue Swenson. It now awaits final approval from the FirstNet board.

The draft of the five-year agreement “authorizes the Lessee to provide wireless communications services to public safety entities as described in Section 6001 of the Tax Relief Act ('Public Safety Entities'), and as otherwise provided for herein in Section II:D,” according to a copy drafted for LA-RICS (http://bit.ly/1atXCqk). “Subject to the terms and conditions below, FirstNet intends for this Agreement to continue until the time at which FirstNet has provided the governors of each of the states with the details of its proposed plan for the build-out of the nationwide, interoperable broadband network, and the Governor of State of California ('State') has made the decision required under Section 6302(e) of the Tax Relief Act on whether the State will participate in the deployment of the nationwide interoperable broadband network as proposed by FirstNet, or will seek approval to conduct its own deployment of a radio access network within the State ('State’s Decision').”

"While there are common elements of the lease agreement, FirstNet is negotiating individually with each of the public safety BTOP grantees,” a FirstNet spokeswoman told us. FirstNet has supported the reactivation of the projects but stressed at past meetings that NTIA has the final say on the BTOP grantees’ suspensions.

Other BTOP grantees are moving forward in their own negotiations, project leaders told us. The seven projects started with joint negotiations, but “unique circumstances” compelled individual negotiations, said Barry Fraser, interim general manager of fellow grantee Bay Area Regional Interoperable Telecommunications Systems Authority (BayRICS). LA-RICS “worked out those last details first” partly due to the timing of that project’s board meeting, but “we will follow along pretty closely,” he said of BayRICS’ potential agreement. “Somebody’s got to go first!” He expects to present a similar agreement draft in a few days and said he is pleased with the LA-RICS draft. BayRICS will probably require a year before being operational, with a need to purchase equipment, if the suspension lifts, he said. Fraser praised FirstNet’s negotiating efforts and expressed optimism that other grantees will reach agreements. “FirstNet’s going to want these projects up and running."

"We're looking at the big picture for the state of Mississippi,” said Vicki Helfrich, executive officer of the Mississippi Wireless Communication Commission. “We need to have a sustainable business plan ready now.” The BTOP project in Mississippi may be able to go live within two weeks of the suspension’s lifting, she said, which raises many questions relating to business certainty, return on investment and the desire to “minimize the risk to the state.” Costs have added up in the year of suspension, she said. Going operational will be “the point of no return” for the state, once the network starts acquiring users. “We're not going to walk away.”

Helfrich acknowledged the difficulty of the negotiating process, while praising the efficiency of negotiating jointly: “There’s still a lot of unknowns, so I think it’s difficult to craft an agreement like this under these circumstances.” But the sense is that “we're at the end of that,” she said, noting hopefulness for meeting the July 12 deadline.

The LA-RICS agreement, once executed, calls for the grantee to request NTIA lift its suspension within 15 days, after which it would then have to comply with the award conditions of an amended BTOP grant and stick to BTOP-defined territory. The document included all the terms and conditions that the stakeholders would abide by. FirstNet, for instance, is “responsible for the final resolution of all interference-related matters, including conflicts between the Lessee and third parties,” once it gives LA-RICS the chance to resolve the conflicts first. FirstNet also is charged with reasonably keeping track of what LA-RICS is doing, make appropriate FCC-required filings and making sure LA-RICS “complies with the Communications Act and all applicable policies and rules directly related to the FirstNet Spectrum by providing oversight and enforcement of the Lessee’s use of the FirstNet Spectrum.” LA-RICS’ spectrum usage rights will be “no less favorable” than any other grantee, it said.

LA-RICS would also have substantial obligations. Under the agreement draft, it would be “independently accountable to the FCC” and accept FCC oversight regarding the Communications Act and FCC policy and would have to send over filings to FirstNet and allow FirstNet to inspect its facilities. LA-RICS would be authorized to provide “wireless communications services to Public Safety Entities as defined under the Tax Relief Act,” the document said. “In addition, and for the purposes of this Agreement, the definition of Public Safety Entities is further expanded to include any government or private entity with statutory responsibility to protect life, property, and/or the environment in the jurisdiction, and those entities assisting or cooperating in the mitigation of emergency incidents as defined in the Glossary of Terms by the Department of Homeland Security’s Federal Emergency Management Agency ('FEMA') National Incident Management System.” LA-RICS would not be able to sublease or offer any excess capacity of the spectrum except to accomplish that end. The agreement does not preclude LA-RICS from paying any potential future FirstNet fees. LA-RICS would also have to consult with FirstNet before issuing any requests for proposals. FirstNet “shall enter into good faith negotiations” to co-locate on LA-RICS sites, the draft proposed.

The agreement specifies what type of LTE equipment LA-RICS can use. The infrastructure must operate on the “3GPP Band 14 in a l0 X 10 MHz configuration, to the extent compatible with international agreements concerning operations in border regions,” it said, complying with the Technical Advisory Board for First Responder Interoperability’s recommended minimum technical requirements. Standards must be open, non-proprietary and commercially available. But if FirstNet opts for more or different requirements and standards, LA-RICS would not be forced to pay for those changes “until the Lessee and FirstNet have first entered into an agreement concerning how the costs of such replacements or modifications shall be covered,” the draft specified. FirstNet also wants LA-RICS’ supplier to disclose certain information to FirstNet, and FirstNet wants to test and certify any of the project’s equipment “at approved labs for FCC type certification in 3GPP Band 14 and PTCRB certification specific to 3GPP Band l4 devices.”

LA-RICS Executive Director Patrick Mallon received authority to add non-substantive amendments as part of the LA-RICS board’s approval Wednesday. “It may become necessary for the Lessee’s Equipment to be relocated and reinstalled in another location based on the FirstNet build out plan,” Mallon said in his memo to the LA-RICS board. “Such new location may be in another city, county or state within the United States of America where, in FirstNet’s judgment, the equipment can be more effectively and/or economically integrated into the FirstNet nationwide network.” LA-RICS would not face those costs, and the transition would be done in a manner that would not hurt LA-RICS’ operations.

FirstNet and LA-RICS would, within 90 days’ of the agreement’s execution, develop a key learning condition plan “to assist FirstNet in the development, deployment, and management of the nationwide public safety broadband network.” The draft mentioned exploring secondary responder partnerships.