Eshoo, and Issues, Crash a U.S. House 'Platitude Party'

11/06/2017 09:52 am ET

Apparently, if your U.S. House subcommittee is planning a platitude party disguised as an oversight hearing, it’s likely best to leave California Congresswoman Anna Eshoo off the invite list.

“Members of the House communications subcommittee seemed generally pleased with the progress of the First Responder Network Authority (FirstNet) and its contractor AT&T based on dialog during a hearing Wednesday,” reported Sandra Wendelken, editor of Mission Critical Communications, accurately echoing a trade-press consensus.

Rep. Eshoo was not among the “generally pleased.”

The California Democrat whose district includes a swath of Silicon Valley interrupted the "dialogue" with questions that had the federal executive in charge of FirstNet backpedaling on controversial spectrum agreements that some states say are really efforts to penalize states that don’t federalize – by law, governors have a right to "opt out" of the new network if they want to pursue other options. One of the opt-out incentives might be that states have plans to use excess capacity from wireless spectrum set aside for FirstNet usage for their own purposes, like trying to improve rural cellular phone service.

The potential conflict seems clear: FirstNet more or less gets to predict the downside of not joining FirstNet.

Rep. Eshoo backgrounded that, under terms supplied by FirstNet, California could face a $15 billon termination fee if it opts out. Then she asked, with some heat, “… who came up with that? How do you make that determination? And why are there penalties?”

Her concerns meshed with those of a hearing witness, John Stevens, the “state point of contact” for New Hampshire. In NH, the governor has been critical of both the policies and process for FirstNet consideration, arguing that they are really attempts to punish states that want to opt-out of the federal program and instead evaluate other options.

As TR Daily’s Paul Kirby explained, “… [FirstNet] Chief Executive Officer Mike Poth stressed … that FirstNet will work to ‘minimize’ the impact on states and first responders of opt-out states that fail to fulfill the terms of spectrum manager lease agreements (SMLAs). He also said that the agreements provided to states are only ‘working draft’ documents.”

The hearing was the latest step in a fascinating hurry-up process that began back in March when a civil lawsuit was finally settled, allowing AT&T to become the designated FirstNet contractor to build out the national network. I’ve previously written about the issue, starting after Alabama Political Reporter’s Bill Britt broke the 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 joined AT&T in June, he is still under the two-year prohibition of the state’s ethics code revolving door provision.” (AT&T responded that Mr. Burchnell has a regional job and does not work with his recent employer.)

At that time, I mentioned that the real challenge might be that Alabama is not a one-off and similar hirings begin to surface. That seemed likely, since New Jersey’s “single point of contact” for the state’s decision-making process, Fred Scalera, also joined AT&T’s FirstNet Initiative for the same purpose of “market development.”

Apparently, the hiring issues is not limited to just the “state points of contacts.” A FirstNet-critical blogger in Maine, the only New England state so far to join AT&T/FirstNet, had little trouble linking the chair of the “Maine Interoperable Communications Committee” to AT&T.

It turns out that Bruce Fitzgerald apparently left the public sector after more than a decade right around when Maine joined the AT&T project, and now he’s showing up at a trade show representing the communications giant.

In Texas, it was widely said that a former chief of staff of Governor Greg Abbott linked up with AT&T shortly after the state’s opt-in status, but this time the link reportedly came via a lobbying gig.

I’m assured that it’s not terribly difficult to find other “situations.” The hiring practice reports are common enough that former Maryland Gov. Martin O’Malley, who is a board member of an AT&T competitor, mentioned the issue during a recent industry conference. He also referred to the FirstNet process as “third world thuggery.” He and former Florida Governor Jeb Bush, also on an AT&T competitor board, questioned if state constitutions even allow the sort of deal being contemplated by FirstNet.

As for the congressional hearing’s mutual embrace of “transparency,” that also had to ignore some fairly loud howling from state-level watchdogs.

Like the warning from Ron Kumetz, a first assistant fire chief in Alburgh, Vermont who is a representative to the state’s broadband commission for 4,500 volunteer firefighters. In an interview with the hell-raising VTDigger he explained “… that he is unable to tell his fellow firefighters what AT&T is proposing and get their feedback because of the secrecy surrounding the plan.”

The VTDigger added context that “… a ‘terms of use’ document FirstNet sent to state officials makes extensive references to the proprietary nature of AT&T’s proposal, which is available only through a special web-based portal accessible to those with a sign-on and password.”

Vermont journalists are also seeking more information via a civil lawsuit to enforce Freedom of Information Act provisions.

My guess is nobody told Rep. Eshoo about those state-level issues, which is odd for a hearing that was billed as offering the state’s perspective. The real challenge now is not that all this information is surfacing, it’s that there’s a Dec. 28 deadline for governors to decide.

This is shaping up as a slow-motion civil lawsuit slugfest. Indeed, in some of the rare non-trade reporting on the issue, a reporter at the Vail Daily (Colorado) newspaper began his story by noting that “… after taking five years to plan a nationwide first responders network, the federal government gave states only 90 days to say whether they want in or out.”

That means these are about to become fast, strange times and people will work in fast, strange ways. Maybe that’s easier as former state officials migrate onto the AT&T team, but perhaps not.

My prediction is that the next phase of this slow-motion train wreck is going to be the civil courts as Dec. 28 pressure mounts.

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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