APCO Supports NTIA's Approach on Agency Oversight of FirstNet Fees

“As an initial matter, APCO fully agrees with NTIA’s approach ‘to execute its statutory fee review duties to afford FirstNet as much flexibility as possible to establish its business and budgetary goals and to adjust those goals as necessary to respond to the day-to-day realities of the broader competitive marketplace in which FirstNet must operate,’” APCO said. FirstNet needs to be able to move quickly and NTIA proposes to give it freedom to act, APCO said. It said that throughout the NPRM, NTIA adheres to the “clear and limited directives” contained in the spectrum law that created FirstNet. “NTIA properly proposes a straight-forward approach to carrying out its responsibility,” the public safety group said.

Building and maintaining a nationwide public safety broadband network (NPSBN) won’t be easy, AT&T said. AT&T has indicated it will make a major push to be named the carrier that will work with FirstNet on the network (see 1601130046). “Deploying, operating, and maintaining the NPSBN in a competitive marketplace will be an unprecedented task,” AT&T said. “Challenges are bound to arise, particularly with respect to how to manage FirstNet’s business model as technology and first responder needs evolve.” Making the network commercially viable “will require careful planning and flexibility,” the carrier said.

States must still decide whether to participate in the national network or develop their own alternatives, AT&T said. “Demand will hinge on FirstNet’s ability to ‘distinguish its product in terms of features, price, and reliability’ from services offered by private competitors.” NTIA is on the right track in the NPRM, AT&T said. But it urged the agency to lay out clear guidelines for fee review and approval: “NTIA’s review should include contingencies that address the practical consequences of NTIA rejecting FirstNet’s fees.”

NTCA argued NTIA should take a fairly deep look at whether the fees charged by FirstNet are reasonable and not ask just whether they are the appropriate amount to cover the network’s costs. NTCA said NTIA misinterprets the spectrum law and can probe more deeply than it suggests in the NPRM. NTCA expressed concern about the behavior of the carrier that will partner with FirstNet. Its partner’s “ability to utilize excess spectrum for commercial purposes decreases as the number of public safety users increases,” the rural association said. “This introduces the perverse incentive to artificially set public entity user fees out of the reach of public safety entities. Such a result would run entirely counter to the very purpose of the [spectrum] Act and ignores the statutory scheme as a whole.”

States Comment

Ensuring the fees generated by the NPSBN will be used to self-fund the network is essential to FirstNet's success, said Pennsylvania. It said it agrees NTIA has the authority to review fees, but is concerned that there's no discussion of potential fees associated with a state that opts out of the FirstNet NPSBN. If NTIA has a role in determining those fees, Pennsylvania said, the states should be included in the process of setting and reviewing fees. “State involvement is essential to ensuring that FirstNet fees are ‘just and reasonable’ and that the NPSBN is sustainable given the considerable amount of capital investment to build-out the network within the states,” the filing said.

If there's no oversight of how fees are assessed, it may invite the potential to have disproportionate ratios of fees in states such as Idaho, which is made up of primarily rural small agencies and volunteer agencies, said the Idaho Bureau of Homeland Security. It may not be the best policy to not review the reasonableness of fees assessed by FirstNet if the primary consideration is that the finances are in the black, the bureau said. It expressed concerns about what's considered non-fee based income -- are charges outside of the review process? If that's true, are those charges not intended to have the same requirement to only equal the amount necessary to recoup the total expenses of FirstNet in carrying out its duties and responsibilities, the bureau asked.

NTIA should extend the comment period or allow interested entities an additional opportunity to submit comments to allow for a reasonable time for review of the request for proposals and submit more informed input on the matter, said Bay Area Regional Interoperable Communications Systems Authority. BayRICS Authority said it's concerned about the definition of a “fee” that would be subject to NTIA review. Because there have been so many different FirstNet business models proposed, BayRICS said a full review of the fee rules may be premature.

NATOA believes NTIA should keep the proceeding open for comment, to address the scope of authority regarding FirstNet fees that may arise in the RFP, it said. NATOA also agrees with NTIA’s proposal that it won’t make subjective determinations that any network user fees, lease fees, or access or use fees from any network equipment or infrastructure constructed or owned by FirstNet are “reasonable, proportionate, or otherwise subjectively appropriate.”