With States on Deadline, Will Ethics Concerns Slow Federalization of First-Responder Networks?

10/09/2017 10:11 am ET

After it won a major civil lawsuit back in March, it seemed that America’s first truly nationwide first-responder communications network was finally in acceleration mode. Housed in the U.S. Department of Commerce’s National Telecommunications and Information Administration (NTIA), the First Responder Network Authority, called “FirstNet,” was created when Congress passed the Middle Class Tax Relief and Job Creation Act of 2012.

Getting serious about building a single federal network replacing the current state-by-state, locality-by-locality system dates back to at least the 9-11 attacks. Congress has set aside prime radio spectrum and there's funding for just such a system, but states are allowed to opt-out of the national system and build their own – so long as that state system works with the other states.

But the lawsuit, filed by a group of firms that had banded together to compete for the FirstNet business, was one of the reasons FirstNet was sometimes criticized for moving too slowly – post-lawsuit, it started whizzing past milestones. Now there's a December deadline for states to federalize or go their own way.

“We have the rigor in place,” FirstNet CEO Mike Poth said after the lawsuit ended. At a quarterly FirstNet meeting covered by the Government Technology website, he added that “We are an up-and-running organization just as Congress intended … We are here and it’s done, and we are ready.”

With AT&T as its national contractor for the $46.5 billion project, FirstNet began urging states to “opt-in” to its system, a decision that Congress placed solidly on state governors. Several states have done so, although it remains unclear how much that means abandoning existing networks for the federal option. In announcing AT&T’s role back in March, Commerce Secretary Wilbur Ross proclaimed that “… today is a landmark day for public safety across the Nation and shows the incredible progress we can make through public-private partnerships.” (Details of that deal can be found at the federal agency’s website.)

Then came a Verizon announcement saying, in corporate speak: Not so fast.

Verizon said it intended to compete for the first responder business, in effect becoming a big-name competitor to the federal effort. Then, just last week, an ethics issue surfaced in Alabama that may signal new legal challenges, this time over the ethics of the FirstNet/AT&T effort hiring state government officials or advisors who likely helped the company secure decisions worth millions of dollars.

The Alabama Political Reporter’s Bill Britt broke a story that a former director of the state’s top law enforcement group, and the designated “single point of contact” for managing Alabama’s decision-making process on opting into FirstNet, “… took a position with AT&T as lead Market Development manager for AT&T’s FirstNet.”

Britt cites the former director’s LinkedIn profile to confirm the AT&T position and notes that “… given when [Ryan] Burchnell left government service in May and jointed AT&T in June, he is still under the two-year prohibition of the state’s ethics code revolving door provision.”

The real challenge, according to sources familiar with the ethics situation, may be that Alabama is not a one-off and other hirings begin to surface. Like Mr. Burchnell, New Jersey’s "single point of contact" for the state’s decision-making process, Fred Scalera, also apparently joined AT&T’s FirstNet Initiative for the same purpose of “market development.” See the former New Jersey lawmaker’s LinkedIn page here, and note that, of course, New Jersey has opted to use AT&T. It's worth pointing out that there may be nothing amiss with all this; perhaps it's the very best way to create a national system – still, even though some states may not have direct ethics rules involving “revolving door” hires, the practice may raise eyebrows and even adversely impact the network’s progress.

The timing is difficult as deadlines approach. As the industry watchdog Urgent Communications website reported, the NTIA has released state construction-grant funding information that triggers a 90-day window for governors in 50 states and three territories to make key opt-in/opt-out decisions – a deadline of Dec. 28.

Writing in his “Urgent Matters” column at Urgent Communications, Editor Donny Jackson explains that “... while the potential timing of the governors’ deadline may be less than ideal for those trying to take a winter vacation, the timeline cited in the law that created FirstNet is straightforward. What is less clear is whether governors will have all of the information they need to decide whether to ‘opt in’ – accepting the FirstNet state plan and let AT&T build and maintain the LTE radio access network within the state’s borders – or pursue the ‘opt-out’ alternative, which would make the state or territory responsible for RAN deployment and maintenance for the next 25 years.”

Other issues abound, including a challenge that AT&T is not really using the specific spectrum to build the dedicated network that Congress envisioned for FirstNet, instead simply “rebranding” its current commercial network as a national first-responder network.

What seems clear is that, even with the big multi-firm lawsuit in its rearview mirror, the federal first-responder network is among those “vital national decisions” that should be front and center of mainstream media, yet in a world of presidential Tweets dominating the news it’s hard to see how that happens beyond the insular world of communications professionals.

However, if that Alabama situation is any indication, we’ll see if that’s the case once the issue expands into additional state ethics controversies and, ultimately, governors’ offices.

Sara Corcoran is publisher of the National Courts Monitor website, “Your Daily Ration of Civil Justice Rationing” and a frequent commentator on national legal policy and civil courts issues.

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