If you have any urgent questions, please contact your usual Kelley Drye attorney or any member of the Communications Practice Group. For more information on other aspects of the federal and state response to the COVID-19 pandemic, as well as labor and employment and other issues, please visit Kelley Drye’s COVID-19 Response Resource Center.

FCC Establishes the COVID-19 Telehealth Program

On April 2, 2020, the FCC issued a Report and Order (FCC-20-44) establishing the COVID-19 Telehealth Program. The COVID-19 Telehealth Program will provide $200 million in funding, appropriated by Congress as part of the CARES Act, to help health care providers provide connected care services to patients at their homes or mobile locations. The COVID-19 Telehealth Program will provide immediate support to eligible health care providers responding to the COVID-19 pandemic by fully funding telecommunications services, information services, and devices purchased on or after March 13, 2020 until the program’s funds have been expended or the COVID-19 pandemic has ended. The COVID-19 Telehealth Program represents the FCC’s most significant action yet to ensure telehealth services remain affordable and available during the crisis.

On April 8, 2020, the Wireline Competition Bureau (“WCB”) released guidance on the COVID-19 Telehealth applications process. The barriers to funding are relatively low. There are three steps interested providers should take immediately to prepare to apply for the COVID-19 Telehealth Program: (1) obtain an eligibility determination from the Universal Service Administrative Company (“USAC”); (2) obtain an FCC Registration Number (“FRN”); and (3) register with the System for Award Management. The WCB recommends that potential applicants undertake these steps now to apply for the early stages of funding.

On April 10, 2020, the WCB announced via Public Notice (DA 20-403) that it will begin to accept applications for the COVID-19 Telehealth Program beginning today, April 13, 2020 at 12:00 PM ET. Applications for the program may be filed through a dedicated application portal, available on the COVID-19 Telehealth Program page: www.fcc.gov/covid19telehealth. The WCB will accept applications on a rolling basis. To assist applicants in preparing their applications, the WCB will hold a webinar today, April 13, 2020 at 11:00 AM ET, which also will be available on the COVID-19 Telehealth Program page: www.fcc.gov/covid19telehealth. The presentation will assist interested parties in navigating the application portal and provide answers to frequently asked questions regarding the COVID-19 Telehealth Program’s application process. The webinar will remain publicly available for viewing.

FCC Adopts Connected Care Pilot Program

On April 2, 2020, in the same Report and Order (FCC 20-44) establishing the COVID-19 Telehealth program, the FCC adopted the Connected Care Pilot program. This three-year Pilot Program will provide universal service support to help defray certain health care provider costs incurred in delivering connected care services, with a primary focus on services aimed at low-income or veteran patients. The FCC will support selected pilot projects to help health care providers improve health outcomes and reduce health care costs, thereby supporting efforts to advance connected care initiatives. The Pilot Program also would study how connected care could become a permanent part of the Universal Service Fund. All eligible nonprofit and public health care providers that fall within the statutory categories under section 254(h)(7)(B) of the Communications Act, regardless of whether they are non-rural or rural, can apply for funding under the Pilot Program.

FCC Extends E-Rate Program Deadlines

On April 1, 2020, the WCB granted extensions of key deadlines for participants in the Schools and Libraries (or E-Rate) program (DA 20-364). Specifically, the Bureau waived the service implementation deadline for special construction projects for all funding year 2019 applicants and extended the deadline for funding year 2020 applicants by one year (from June 30, 2020 to June 30, 2021). Under the FCC’s rules, applicants normally must complete special construction projects and the network must be in use by June 30th of the applicable funding year. With schools and libraries closed for lengthy periods of time, the Bureau recognized that service providers may not be allowed on the premises and may experience significant challenges in meeting this construction deadline. The Bureau also (1) extended the service delivery deadline for nonrecurring services for funding year 2019 by one year (from September 30, 2020 to September 30, 2021); (2) granted schools and libraries an automatic 60-day extension to file requests for review or waiver of decisions by USAC; (3) provided applicants and service providers an automatic 120-day extension of the invoice filing deadline; and (4) gave all program participants an additional 30-day extension to respond to certain information requests from USAC.

FCC, FTC Demand Gateway Providers Cut Off Robocallers

On April 3, 2020, the FCC and the Federal Trade Commission (“FTC”) demanded that service providers take action to stop coronavirus-related scam robocalls from bombarding American consumers. They specifically warned three gateway communications providers allegedly facilitating COVID-19-related scam robocalls originating overseas that they must take action to stop carrying these calls or face serious consequences. Specifically, if the providers do not take action to address the scam robocalls, the FCC will allow other providers to block all traffic from these gateway providers’ networks. The FCC and FTC have been working closely with the Department of Justice (“DOJ”) on this first-of-its-kind effort to stop scammers from reaching American consumers. The warning shows that the FCC, FTC, and other agencies plan to aggressively address consumer protection-related issues during the crisis. Click here to read more about the FCC and FTC actions.

Chairman Pai Announces More Keep Americans Connected Signatories

On March 25, 2020, Chairman Pai announced that additional service providers have signed the Keep Americans Connected Pledge (see our coverage of the pledge here). Under the pledge, service providers agree to forgo service terminations due to inability to pay, waive late fees, and open Wi-Fi hotspots for those who need them for a 60-day period. There are now 626 service providers and 14 trade associations that have signed the Chairman’s pledge.

FCC Enables Rural Broadband Providers to Waive Certain Consumer Fees

On April 1, 2020, the WCB approved waiver requests from the National Exchange Carrier Association (“NECA”) and John Staurulakis, Inc. (“JSI”) to allow the two organizations to quickly implement tariff changes to ensure that NECA and JSI participant companies have the flexibility to meet the Keep Americans Connected pledge during the COVID-19 pandemic. The WCB’s action immediately permitted waivers of late payment penalties as well as installation and early cancellation fees that the providers normally would be required to assess in accordance with their tariffs. The WCB’s waiver deserves close attention by tariffed service providers and signals the agency’s openness to regulatory relief benefitting consumers.

FCC Waives Restrictions on Hiring Contractors for ASL Interpretation Services

On April 3, 2020, the Consumer and Government Affairs Bureau granted a temporary, limited waiver of the Commission’s rule restricting providers of video relay service (“VRS”) from contracting for video interpretation services with an entity that is not itself an eligible provider (DA 20-378). With increased VRS traffic levels and employee absences due to health concerns, school closures, and other restrictions imposed by state and local authorities, VRS providers continue to face a shortage of interpreters able to work as communications assistants. By allowing VRS providers additional flexibility to contract for qualified American Sign Language (“ASL”) interpreting from other entities, such as providers of video remote interpreting, the FCC hopes to alleviate this shortage.

FCC Postponing 3.5 GHz Auction on Account of COVID-19

On March 25, 2020, the FCC announced a one-month postponement of the 3.5 GHz auction (3550-3650 GHz) in the Citizen’s Broadband Radio Service (“CBRS”), a.k.a. Auction 105 (DA 20-330). The Commission cited the need to protect the health and safety of Commission staff during the auction and the ancillary benefit that parties would have additional time to prepare to participate. FCC Chairman Ajit Pai reiterated the agency’s commitment to hold the auction this summer. The auction is the first in the so-called mid-band, a range of spectrum seen as critical to the rollout of 5G wireless applications. Commissioner Michael O’Rielly tweeted that a further delay would be unlikely absent absolutely compelling circumstances. The start of the auction has been postponed to July 23, 2020 (from June 25, 2020), and the new short-form application filing window is April 23 through May 7, 2020. For more information on the postponement and the auction, please see our blog post.

Wireline Competition Bureau Extends Mozilla Remand Comment Cycle

On March 25, 2020, in response to a March 11, 2020, petition asking for a 30-day extension, the WCB issued a Public Notice (DA 20-331) granting a 21-day extension of the comment and reply comment cycle for the proceeding in the wake of the D.C. Circuit’s remand in Mozilla v. FCC (2018). Comments are due on April 20, 2020 (from March 30, 2020), and reply comments are due on May 20, 2020 (from April 29, 2020).

In issuing the extension, the WCB agreed with the petitioners’ argument that individuals, organizations, and state and local governments whose work is dedicated to public safety are increasingly focused on managing the COVID-19 pandemic and may be unable to submit comments on the public safety issues discussed in the remand proceeding. However, the FCC cited the need for expediency in remand proceedings as the reason for granting a 21-day extension instead of the petition’s request for a 30-day extension.

In addition, the FCC took the following actions in response to the pandemic:

• On March 25, 2020, the Office of Engineering and Technology issued a Public Notice (DA 20-334) granting a 21-day extension of the reply comment deadline in the 5.9 GHz proceeding. Reply comments are now due on April 27, 2020 (from April 6, 2020). Initial comments were due on March 9, 2020. The entire 75 megahertz of the 5.850-5.925 GHz Band is allocated for connected car intelligent transportation systems using dedicated short-range communications ("DSRC") technology. Under pressure to allocate more spectrum for Wi-Fi operations and dissatisfied with the pace of DSRC development and deployment, the Commission has proposed reallocating 45 megahertz of the Band for unlicensed use and 20 megahertz to cellular vehicle-to-everything intelligent transportation system technology, while preserving only 10 megahertz for DSRC.
• On April 10, 2020, the FCC’s Office of Economics and Analytics (“OEA”) extended via Public Notice (DA 20-401) the comment and reply comment deadlines for its Public Notice, released on February 27, 2020, which sought input on the state of the communications marketplace to inform the Commission’s required assessment of competition within the communications industry in its second Communications Marketplace Report to Congress. The Report provides an opportunity for stakeholders to evaluate competitive barriers to wireless and fixed broadband deployment, as well as international services. With this extension, comments are now due April 27, 2020 and reply comments are due May 28, 2020.
• On April 1, 2020, the Wireless Telecommunications Bureau (“WTB”) announced (DA 20-365) a compilation of instructions for filing Special Temporary Authority (“STA”) and waiver requests in response to the declaration of national emergency due to COVID-19 issued on March 13, 2020. The WTB STA and Wavier Filing Guide can be found online here. On April 10, 2020, the Public Safety and Homeland Security Bureau provided guidance to public safety entities on requesting STA and waivers (DA 20-404). All providers should consider whether an STA is appropriate to provide additional flexibility and improve service.
• ​On March 27, 2020, the FCC granted​ STA for 33 wireless Internet service providers (“WISPs”) to use the lower 45 megahertz in the 5.850-5.925 GHz Band for 60 days to address the increase in consumer demand because of the COVID-19 pandemic. Participating WISPs are required to file FCC Form 601 (application for an STA) within 10 days to access the full 60-day STA, and are required to operate in the band on a secondary, non-interference basis so as not to interrupt existing DSRC and federal radiolocation operations.
• ​On March 26, 2020, the FCC's WTB granted AT&T Special Temporary Authority (“STA”) to utilize additional spectrum in Puerto Rico and the U.S. Virgin Islands for 60 days to handle increased network traffic as a result of the COVID-19 pandemic. On March 30, 2020, the WTB granted A:shiwi College & Career Readiness Center an STA to utilize unassigned Educational Broadband Service(“EBS”) spectrum for 60 days in the eligible rural tribal land on the Zuni Reservation in New Mexico for similar reasons. These STAs are in addition to the ones previously granted by the Commission. ​
• On April 10, 2020, the FCC’s WTB enabled AT&T to deploy two cell sites in Wisconsin to support wireless service for a critical medical facility. That facility is being constructed by the U.S. Army Corps of Engineers at the Wisconsin State Fair Park in Milwaukee, Wisconsin to care for COVID-19 patients. The WTB granted AT&T’s request to expedite environmental review of the two proposed wireless tower sites, which will also serve first responders as part of AT&T’s FirstNet public safety broadband network. It is likely that the FCC will grant similar requests to expand communications infrastructure during the crisis.
• On April 2, 2020, the Public Safety and Homeland Security Bureau released a Public Notice (DA 20-367) reminding authorized alert originators, including state and local governments, that the Wireless Emergency Alert (“WEA”) system is available as a tool to provide life-saving information to the public during the coronavirus COVID-19 pandemic. In recent years, the FCC, together with the Federal Emergency Management Agency (“FEMA”) and participating wireless service providers, have taken important measures to promote the effectiveness of WEA, and to make such messages more accessible, including the capability to send more detailed alerts of up to 360 characters for 4G-LTE networks, the option to convey recommended actions for saving lives or property for use in connection with Imminent Threat Messages, and the ability to send alerts in Spanish.
• On March 26, 2020, the WCB waived a number of rules in its Rural Healthcare Program affecting existing users of the support programs. Most importantly, the Bureau’s order (DA 20-345) permits RHC applicants to extend existing evergreen arrangements with service providers by one year, without conducting an additional competitive bidding process, thereby ensuring continuity of service during the crisis. This builds on the Commission's previous waiver of rules for both the Rural Healthcare Program and the E-Rate program.
• On March 30, 2020, the FCC's WCB issued an order (DA 20-354) waiving certain rules requiring involuntary de-enrollment of Lifeline subscribers, including for non-usage of the service, until May 29, 2020. The Bureau also extended the previous waivers​ of the annual recertification and National Verifier reverification process de-enrollments to May 29 so that all of the waivers will expire at the same time.

FirstNet Background

The Middle Class Tax Relief and Job Creation Act of 2012’s Public Safety Spectrum Act (the “Act”) established FirstNet and charged it with creating, deploying, and operating the NPSBN in the 700 MHz spectrum band. The Act directed the FCC to license the 758-769/788-799 MHz band to FirstNet on a nationwide basis for use by the NPSBN. In addition, the Act called for a “single, national network architecture,” consisting of a core network and a RAN. The Act allowed States to choose to participate in the Network as proposed by FirstNet or deploy their own RAN. The Act designated the Commission as the entity responsible for approving or denying State alternative RAN plans while NTIA will decide on applications for grant money for State plans that are approved by the FCC.

In late March 2017, FirstNet selected AT&T as the provider to build and manage the Network under a 25-year contract. FirstNet will provide 20 MHz of spectrum and success-based payments of $6.5 billion over the next five years to support AT&T’s build out of the NPSBN. AT&T will spend about $40 billion over the course of the contract. First responders will have priority and preemption rights of use on the Network. A few days before the June Open Meeting, FirstNet and AT&T provided initial versions of the customized buildout RAN plan to each State for them to evaluate, as discussed below.

Opt-out Notification Process

Under the Act, if a State chooses to opt out of the FirstNet RAN plan, the State must notify FirstNet, the NTIA, and the FCC of the decision and then submit an alternative RAN plan to the FCC for its approval. This Order implements the Act’s provisions regarding a State’s notice of intention to opt out as follows:

• FirstNet must immediately notify the FCC’s Public Safety and Homeland Security Bureau (“Bureau”) when it provides the State with notice of the final State plan.
• Upon receipt of this notification from FirstNet, the Bureau must issue a Public Notice formally commencing the 90-day opt-out period.
• A State Governor or the Governor’s duly authorized designee must be the one to provide an opt-out notice should a State make that decision. The notification should include a certification that the State is providing “simultaneous notice of its opt-out decision to both NTIA and FirstNet.”

The Order also requires a State to certify that its alternative RAN plan adheres to FirstNet technical interoperability network policies and support such certification with specific references to corresponding sections of the RFP and/or bid responses.

FCC Assessment of Alternative Plans

The FCC’s review of State alternative plans will apply a two-prong test to assess

1. Whether the Plan is compliant with recommendations from the Technical Advisory Board for First Responder Interoperability; and
2. Whether the Plan demonstrates interoperability with the Network.

The Order also explains that FirstNet filed with the FCC, on an ex parte basis, an interoperability compliance matrix with technical standards to inform how the FCC could consider whether a State plan was interoperable with the NPSBN. FirstNet urged the FCC to limit its consideration to recommended requirements numbered 4 and 5 of the 3GPP LTE Standards, Interfaces, and Guidelines section from the May 2012 FirstNet Technical Advisory Board Report which deal with hardware and software systems that are a part of the NPSBN supporting access point names, a connection gateway between a carrier’s cellular network and another network (often the Internet). Specifically, recommendations 4 and 5 state:

• Hardware and software systems comprising the NPSBN SHALL support access point names (“APNs”) defined for public safety application network (“PSAN”) usage.
• Hardware and software systems comprising the NPSBN SHALL support nationwide APNs for interoperability.

Upon review of the resulting record, the FCC intends to issue a subsequent order clarifying the considerations that will guide its review of alternative plans.

FCC Evaluation Procedure

Every State alternative plan will be placed in a separate FCC docket with access restricted to the relevant State, FirstNet, and the NTIA. At the end of the 90-day opt-out period, the FCC will issue a Public Notice listing all States pursuing approval of alternative RAN plans. At that point, members of the public wishing to comment on a particular State plan may petition the FCC for leave to intervene as a party based on a presentation of an interest that is not already represented by the State government, FirstNet or the NTIA.

The Bureau will conduct initial reviews of States’ alternative plans as they are filed. Within ten business days of receipt of a State plan, whenever possible, the Bureau will determine whether it meets the baseline requirements and is, thus, accepted for filing, issuing a Public Notice in such cases. After the Public Notice, recognized parties to the restricted proceeding, including NTIA and FirstNet, will have 15 days within which to provide comments then the State will have 15 days to amend or respond. The Public Notice will also trigger an aspirational 90-day shot clock for the FCC to make a final decision about the application.

FirstNet Individual State Plans

State Governors will have up to 45 days to preview the FirstNet plan and engage in feedback with FirstNet before the official 90-day opt-out notification period starts to accrue. Some states, including New Hampshire, Arizona, Colorado, Michigan, Alabama, Wisconsin, and California, have already issued RFPs for their RAN but the States say they have made no decision and are merely exploring options. AT&T has indicated that States that opt in early could start accessing FirstNet capabilities at some point in 2017 via AT&T’s commercial wireless network in advance of the NPSBN being deployed. AT&T has expressed its desire to have 100 percent state participation but it remains to be seen whether the perks AT&T is offering will eliminate any desire to opt out.

Each agenda item is summarized below. Note: these brief summaries are based on draft items, which may differ from the final items released following the Open Meeting. Please check with Kelley Drye after the meeting for more information on the items below.

“Blue Alerts” Notice of Proposed Rulemaking (NPRM)

Chairman Pai has set forth a proposal to amend the Commission’s Emergency Alert System (EAS) rules to add a dedicated event code, “BLU,” for “Blue Alerts.” This is modelled on the highly successful Amber Alerts used during instances of child abduction. Blue Alerts would notify the public when there is actionable information related to a law enforcement officer who is missing, seriously injured or killed in the line of duty, or if there is an imminent and credible threat to an officer. The Department of Justice has previously identified the need for a dedicated Blue Alert EAS code. The Commission is proposing that any required technical changes to equipment be made within 6 months of the effective date of the rules.

The Commission seeks comment on several issues, including the effectiveness of the EAS to deliver Blue Alerts, whether Blue Alerts can be sufficiently geographically targeted, how Blue Alerts can be incorporated into states’ existing Blue Alert plans, the proposed alerts’ costs and benefits, and how the public will likely respond to Blue Alerts.

Report and Order on FirstNet Opt-Out Plans

Under the Middle Class Tax Relief and Job Creation Act of 2012, states that are opting out of the First Responder Network Authority’s (FirstNet’s) national plan are required to obtain FCC approval for their own radio access network (RAN) plan. The FCC will determine if the plan meets interoperability requirements. If the FCC rejects a state’s alternative plan, the state must accept FirstNet’s plan.

The draft Report and Order gives states 90 days following receipt of FirstNet’s plan to notify the Commission, FirstNet, and the National Telecommunications and Information Administration (NTIA) of their decision to opt-out of FirstNet’s plan. After notifying all parties of its decision, a state has 180 days to conduct an RFP process (including picking a winner), and then an additional 60 days to further develop the alternative plan it must submit to the FCC.

States’ alternative plans must address the RAN construction, maintenance, operation, and improvements on the existing state RAN. They must also address interoperability requirements, and all requirements of the Technical Advisory Board for First Responder Interoperability. The FCC establishes for itself an “aspirational” 90-day shot clock to review states’ alternative plans. This review will solely focus on the RAN elements, and will not include elements related to user equipment, or issues related to coverage or financing. The Commission believes these other factors will be adequately addressed by NTIA’s subsequent review.

NPRM on Law Enforcement Accessing Caller ID Information

This NPRM would allow law enforcement and interested parties to have quick access to blocked caller information in cases of threatening phone calls. The Commission argues that threatening callers have no legitimate privacy interest. The Commission has previously found public interest reasons to waive the rules, such as calls to 911, a poison control line, or other public emergency lines.

The rules propose to define a “threatening call” as any call that includes a threat of serious and imminent unlawful action posing a substantial risk to property, life, safety, or health. The Commission seeks comment on whether it should require anyone reporting a threatening call do so in conjunction with a law enforcement agency, to prevent individuals from circumventing existing caller ID privacy protections. The Commission also asks what requirements it should impose on recipients of caller information to safeguard it.

This NPRM follows an earlier waiver of the rules following a series of bomb threats against Jewish community centers across the country.

Order and Declaratory Ruling on WorldVu Satellites Limited, d/b/a OneWeb’s Request to Launch an NGSO Constellation for Broadband Service

In a draft Order and Declaratory Ruling, the Commission proposes to grant OneWeb access to the U.S. market with a proposed Ku- and Ka-band non-geostationary-satellite orbit (NGSO) constellation in the fixed-satellite service (FSS) to provide broadband service. This would be the first Commission approval of an anticipated new generation of NGSO constellations that seek to provide low latency broadband connectivity across the United States and enhance prospects for rural broadband access. Eleven other applications were filed in November 2016 in response to the processing round initiated when the FCC put the OneWeb petition for U.S. market access on public notice in July 2016. Those applications remain pending and would not be affected by adoption of the draft Order, although ten of the eleven applications were accepted for filing on May 26, 2017.

The proposed grant to OneWeb of U.S. market access would be conditioned on, among other things, ITU coordination, power limits, avoidance of in-line interference, orbital debris mitigation, the outcome of pending and future rulemakings, and satisfaction of bond and milestone requirements.

The draft Order would grant OneWeb several waivers. OneWeb seeks waivers to operate on a non-interference, secondary basis in the 17.8-18.3 GHz band (not allocated for FSS operations) and the 18.3-18.6 GHz band (allocated for FSS operations, but not NGSO systems). OneWeb also seeks a waiver allowing shared operations between OneWeb and other NGSO constellations in the 17.8-18.6 GHz, 27.5-28.6 GHz, and 29.5-30 GHz bands via in-line interference avoidance procedures rather than the existing band-splitting requirements.

Notice of Inquiry (NOI) Broadband Deployment in Multitenant Buildings

The Commission will consider a Notice of Inquiry seeking comment on ways to facilitate greater consumer choice and broadband deployment in multitenant environments (e.g., apartment buildings, condominium facilities, shopping malls)(MTEs).

In 2000, the FCC prohibited common carriers from entering into contracts that restrict owners and managers of commercial multitenant buildings from permitting access to competing carriers, and in 2007 expanded those rules to apply to multichannel video programming distributors (MVPDs).

In this NOI, the Commission asks whether there are any state and local regulations that may inhibit broadband deployment and competition in MTEs and whether the Commission should revisit an earlier decision not to prohibit MVPDs from entering into exclusive marketing and bulk billing arrangements. The FCC also seeks comment on several issues about revenue sharing agreements and exclusive wiring arrangements. The Commission also invites comment on its legal authority to address the issues raised in the NOI.

NPRM and Order to Modernize Payphone Compensation Rules

Chairman Pai circulated a Notice of Proposed Rulemaking and Order that would begin the process of eliminating the payphone call tracking system annual audit requirement and associated reporting requirement. Given the decline in payphone usage, the NPRM and Order is intended to eliminate requirements that are no longer necessary. The Commission also waives the 2017 audit and associated reporting requirement for the interim period while it considers the NPRM.

Enforcement Bureau Order

The Commission will consider an Enforcement Bureau order, which will remain confidential until the day of the meeting.

Deleted Item:

On Monday, June 19^th, the Commission adopted and removed the following item from its agenda. The final text of the item was not available at the time this advisory was published.

Declaratory Ruling on Delivery of Cable Operators’ Annual Notice

The Commission adopted a Declaratory Ruling granting a 2016 petition by the National Cable & Telecommunications Association and the American Cable Association to clarify that the “written information” that cable operators must annually provide to their subscribers under FCC rules can be provided via e-mail.

All parties in the record agreed that e-mail delivery would satisfy this obligation. Under the text of the public draft, the Commission will require that the cable operator use a “verified” email address, which must satisfy one of the following criteria: (1) an e-mail address that the customer has provided to the cable operator (and not vice versa) for purposes of receiving communication, (2) an e-mail address that the customer regularly uses to communicate with the cable operator, or (3) an e-mail address that has been confirmed by the customer as an appropriate vehicle for the delivery of notices. If no verified e-mail contact information is available for a particular customer, cable operators must continue to deliver the annual notices via paper copies.

The FCC declines to allow cable operators to meet this obligation by providing a link to a publicly available website within a customer’s bill.

The FCC issued FirstNet a license for Band 14 to develop, deploy and operate the NPSBN. At this time, a number of public safety entities around the country operate on the Band 14 frequencies. To ensure that this spectrum is unencumbered for the successful deployment of the NPSBN, these entities will be required to relocate their communication operations from Band 14 to other frequencies allocated by the FCC. During yesterday's FirstNet Board meeting, FirstNet Chief Executive Officer Mike Poth said that the Band 14 incumbent public safety agencies already have plans for how they will relocate; they just need the funding. FirstNet established the Grant Program to facilitate the relocation and enable these affected public safety entities to continue operations without interruption. Applications have until May 16, 2016 to submit an application.

Public safety entities currently occupying Band 14 frequencies will be able to apply for grant funds to cover the costs associated with retuning and reprogramming communications equipment. FirstNet will only consider the procurement of new communications equipment (i.e. radios, vehicle repeaters, fixed site repeaters, antenna combiners) by incumbents if the application clearly demonstrates that the retuning or reprogramming of existing equipment is not cost effective or cannot be achieved due to equipment obsolescence.

Applicants receiving grant funds will be required to establish a project plan, develop and meet key milestones within the 12-month period of performance (likely August 1, 2016 to July 31, 2017), to show progress, and other activities as determined by FirstNet. FirstNet anticipates up to 15 public safety incumbents will be eligible for the award with award amounts varying by estimated project costs.

FirstNet intends to make award decisions by July of this year.

If you have any questions about the Grant Program or FirstNet, please contact Jennifer Holtz at [email protected] or your Kelley Drye communications attorneys.

The Funding

What's unique about this RFP is that the winning bidder will receive up to $6.5 billion in funding from FirstNet but the winner will have to make regular payments to FirstNet based on the following estimated costs that FirstNet expects to incur over the life of the contract, including base operating and general administrative costs: at least $80 million during the first five years, $130 million in year 6, $205 million in year 11, $305 million in year 16, and then $430 million each of the last five years. Any revenue FirstNet generates from these payments will be reinvested in to the network. This will also account for the Contractor's proposed total amount of payments for all 56 States and Territories. Should a State or Territory "opt-out," the Contractor's payments to FirstNet will be adjusted accordingly.

One factor which will affect the payments flowing from FirstNet to the Contractor is how many States and territories decide to "opt-out" and deploy, operate and maintain the Radio Access Network (RAN) within their own State or territory. For those states and territories that "opt-out," the Department of Commerce's National Telecommunications and Information Administration (NTIA), which oversees the quasi-independent FirstNet, reserves the right to administer a RAN construction grant program. FirstNet will reduce the Contractor payments for each State or territory that notifies FirstNet of its intent to deploy its own RAN. The onus is on the Offeror to propose the payment adjustments. NTIA will not finalize the RAN Construction Grant amount until after FirstNet awards the RFP.

The Solution: An Objectives-Based Approach

Specifically, FirstNet seeks a “comprehensive network solution covering each of the 56 states and territories,” which includes: "the deployment and provisioning of a nationwide Core Network (Core), and RAN services; backhaul, aggregation, and the use of national transport networks and operation centers; a device ecosystem; use of network infrastructure; deployable capabilities; use of operational and business support systems; an applications ecosystem; network services; and the integration, maintenance, operational services, and ongoing evolution of these systems required to function fully as an operational wireless 3rd Generation Partnership Project (3GPP) standards-based Long Term Evolution (LTE) NPSBN."

What's unique about this RFP is FirstNet's approach, which is an objectives-based model rather than a traditional requirements-driven model. This means that FirstNet is requiring offerors to achieve broad objectives through innovative solutions not limited by any particular type of solution or type of entity. FirstNet directly states that the RFP is open to all entities, "whether traditional wireless incumbents or new entrants." The rationale for using an objectives-based model is to provide industry with the "maximum opportunity and flexibility in the development of innovative solutions for the NPSBN."

The winning bidder must meet sixteen objectives:

1. Building, deployment, operation, and maintenance of the NPSBN
2. Financial sustainability
3. First responder user adoption
4. Device ecosystem
5. Applications ecosystem
6. Accelerated speed to market
7. User service availability
8. Service capacity
9. Cybersecurity
10. Priority services
11. Integration of state-deployed rans
12. Integration of existing commercial/federal/state/tribal/local infrastructure to support NPSBN services
13. Life-cycle innovation
14. Program and business management:
15. Customer care and marketing:
16. Facilitation of FirstNet’s compliance with the act and other laws

Timeline

Interested parties may submit questions seeking clarification no later than February 12, 2016. FirstNet will hold an in-person, pre-proposal conference on March 10, 2016, which requires registration. Parties submitting proposals must file a capability statement by March 17, 2016. Those parties interested in subcontracting and teaming opportunities with other potential Offerors who would like their contact information on a FirstNet compiled list must submit their business name, size, email and phone number no later than March 17, 2016.

Proposals are due no later than April 29, 2016.

If you are interested in learning more about FirstNet, please contact Jennifer Holtz at [email protected] or any member of the Communications Practice Group.