80 FR 63523 - First Responder Network Authority; Final Interpretations of Parts of the Middle Class Tax Relief and Job Creation Act of 2012
DEPARTMENT OF COMMERCE
National Telecommunications and Information Administration Federal Register Volume 80, Issue 202 (October 20, 2015)
National Telecommunications and Information Administration
Federal Register Volume 80, Issue 202 (October 20, 2015)
| Page Range | 63523-63533 | |
| FR Document | 2015-26621 |
[Federal Register Volume 80, Number 202 (Tuesday, October 20, 2015)] [Notices] [Pages 63523-63533] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2015-26621] ----------------------------------------------------------------------- DEPARTMENT OF COMMERCE National Telecommunications and Information Administration [Docket Number: 140821696-5908-04] RIN 0660-XC012 First Responder Network Authority; Final Interpretations of Parts of the Middle Class Tax Relief and Job Creation Act of 2012 AGENCY: First Responder Network Authority, National Telecommunications and Information Administration, U.S. Department of Commerce. ACTION: Notice; final interpretations. ----------------------------------------------------------------------- SUMMARY: The First Responder Network Authority (``FirstNet'') publishes this Notice to issue final interpretations of its enabling legislation that will inform, among other things, forthcoming requests for proposals, interpretive rules, and network policies. The purpose of this Notice is to provide stakeholders FirstNet's interpretations on many of the key preliminary interpretations presented in the proposed interpretations published on September 24, 2014. DATES: Effective October 20, 2015. FOR FURTHER INFORMATION CONTACT: Eli Veenendaal, First Responder Network Authority, National Telecommunications and Information Administration, U.S. Department of Commerce, 12201 Sunrise Valley Drive, M/S 243, Reston, VA 20192; 703-648-4167; or [email protected]. SUPPLEMENTARY INFORMATION: I. Introduction and Background The Middle Class Tax Relief and Job Creation Act of 2012 (Pub. L. 112-96, Title VI, 126 Stat. 256 (codified at 47 U.S.C. 1401 et seq.)) (the ``Act'') established the First Responder Network Authority (``FirstNet'') as an independent authority within the National Telecommunications and Information Administration (``NTIA''). The Act establishes FirstNet's duty and responsibility to take all actions necessary to ensure the building, deployment, and operation of a nationwide public safety broadband network (``NPSBN'').\1\ --------------------------------------------------------------------------- \1\ 47 U.S.C. 1426(b). --------------------------------------------------------------------------- One of FirstNet's initial steps in carrying out this responsibility under the Act is the issuance of open, transparent, and competitive requests for proposals (``RFPs'') for the purposes of building, operating, and maintaining the network. We have sought--and will continue to seek--public comments on many technical and economic aspects of these RFPs through traditional procurement processes, including requests for information (``RFIs'') and potential draft RFPs and Special Notices, prior to issuance of RFPs.\2\ --------------------------------------------------------------------------- \2\ The pronouns ``we'' or ``our'' throughout this Notice refer to ``FirstNet'' alone and not FirstNet, NTIA, and the U.S. Department of Commerce as a collective group. --------------------------------------------------------------------------- As a newly created entity, however, we are also confronted with many complex legal issues of first impression under the Act that will have a material impact on the RFPs, responsive proposals, and our operations going forward. Generally, the Administrative Procedure Act (``APA'') \3\ provides the basic framework of administrative law governing agency action, including the procedural steps that must precede the effective promulgation, amendment, or repeal of a rule by a federal agency.\4\ However, 47 U.S.C. 1426(d)(2) provides that any action taken or decision made by FirstNet is exempt from the requirements of the APA. --------------------------------------------------------------------------- \3\ See 5 U.S.C. 551-59, 701-06, 1305, 3105, 3344, 5372, 7521. \4\ See 5 U.S.C. 551-559. The APA defines a ``rule'' as ``the whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of an agency and includes the approval or prescription for the future of rates, wages, corporate or financial structures or reorganizations thereof, prices, facilities, appliances, services or allowances therefor or of valuations, costs, or accounting, or practices bearing on any of the foregoing.'' 5 U.S.C. 551(4). --------------------------------------------------------------------------- Nevertheless, although exempted from these procedural requirements, on September 24, 2014, FirstNet published a public notice entitled ``Proposed Interpretations of Parts of the Middle Class Tax Relief and Job Creation Act of 2012'' (hereinafter ``the First Notice''),\5\ seeking public comments on preliminary interpretations, as well as technical and economic issues, on certain foundational legal issues to help guide our efforts in achieving our mission. --------------------------------------------------------------------------- \5\ 79 FR 57058 (September 24, 2014). --------------------------------------------------------------------------- The purpose of this Notice is to provide stakeholders notice of the final legal interpretations on many of the key preliminary interpretations presented in the First Notice. Additional background and rationale for this action and explanations of FirstNet's interpretations were included in the First Notice and are not repeated herein. The section immediately below labeled ``Final Interpretations'' summarizes FirstNet's final interpretations with respect to the First Notice. Thereafter, the section labeled ``Response to Comments'' summarizes the comments [[Page 63524]] received on the preliminary interpretations contained in the First Notice and provides FirstNet's responses to such comments, including further explanations and any changes to FirstNet's interpretations. II. Final Interpretations A. FirstNet Network Final Definitions of Core Network and Radio Access Network 1. FirstNet defines the core network in accordance with 47 U.S.C. 1422(b) of the Act, relevant sections of the Interoperability Board Report, and commercial standards, as including, without limitation, the standard Evolved Packet Core elements under the 3rd Generation Partnership Project (``3GPP'') standards (including the Serving and Packet Data Network Gateways, Mobility Management Entity, Home Subscriber Server, and the Policy and Charging Rules Function), device services, location services, billing functions, and all other network elements and functions other than the radio access network. 2. FirstNet defines the radio access network in accordance with 47 U.S.C. 1422(b) of the Act, commercial standards, and the relevant sections of the Interoperability Board Report, as consisting of the standard E-UTRAN elements (e.g., the eNodeB) and including, but not limited to, backhaul to FirstNet designated consolidation points. 3. FirstNet concludes that a State choosing to conduct its own deployment of a radio access network under 47 U.S.C. 1442(e) must use the FirstNet core network to provide public safety services within the State. B. Users Network Users 4. FirstNet defines a ``secondary user'' as any user that seeks access to or use of the NPSBN for non-public safety services. Prohibition on Providing Commercial Services to Consumers 5. The definition of ``consumers'' as used in 47 U.S.C. 1432 does not include: a. any public safety entity as defined in the Act; b. States when seeking access to or use of the core network, equipment, or infrastructure; or c. entities when seeking access to or use of equipment or infrastructure. 6. The language of the Act under 47 U.S.C. 1432 prohibiting FirstNet from directly serving ``consumers'' does not limit potential types of public safety entities that may use or access the NPSBN for commercial telecommunications or information services. 7. The Act under 47 U.S.C. 1432 does not prohibit or act as a limit on secondary users with which FirstNet may enter into a covered leasing agreement. 8. The Act under 47 U.S.C. 1432 does not limit the pool of secondary users that may gain access to or use of the network on a secondary basis. C. Requests for Proposals Requests for Proposals Process 9. FirstNet, to the extent it utilizes the FAR, concludes that complying with the FAR satisfies the open, transparent, and competitive requirements of 47 U.S.C. 1426(b)(1)(B). Minimum Technical Requirements 10. FirstNet concludes that it may make non-material changes or additions/subtractions to the minimal technical requirements developed by the Interoperability Board, including as necessary to accommodate advancements in technology as required by the Act. Final Definition of ``Rural'' 11. FirstNet defines ``rural,'' for the purposes of the Act, as having the same meaning as ``rural area'' in Section 601(b)(3) of the Rural Electrification Act of 1936, as amended (``Rural Electrification Act''). Section 601(b)(3) of the Rural Electrification Act provides that ``[t]he term `rural area' means any area other than--(i) an area described in clause (i) or (ii) of Section 1991(a)(13)(A) of this title [section 343(a)(13)(A) of the Consolidated Farm and Rural Development Act]; and (ii) a city, town, or incorporated area that has a population of greater than 20,000 inhabitants.'' In turn, the relevant portion of Section 343(a)(13)(A) of the Consolidated Farm and Rural Development Act explains that the ``terms `rural' and `rural area' mean any area other than--(i) a city or town that has a population of greater than 50,000 inhabitants; and (ii) any urbanized area contiguous and adjacent to a city or town described in clause (i).'' Thus, as defined herein, the term ``rural'' means any area that is not:A city, town, or incorporated area that has a population of greater than 20,000 inhabitants any urbanized area contiguous and adjacent to a city or town that has a population of greater than 50,000 inhabitants 12. FirstNet concludes that a lower boundary (e.g., ``wilderness,'' ``frontier'') is not necessary to satisfy its rural coverage requirements under the Act, and thus FirstNet does not intend to establish any such boundary. Existing Infrastructure 13. FirstNet interprets that 47 U.S.C. 1426(b)(1)(B) is intended to require FirstNet to encourage, through its requests, that responsive proposals leverage existing infrastructure in accordance with the provision. 14. FirstNet interprets 47 U.S.C. 1426(b)(3) as requiring FirstNet to include in its RFPs that such proposals leverage partnerships with commercial mobile providers where economically desirable. 15. FirstNet concludes that factors other than, or in addition to, cost may be utilized in assessing whether existing infrastructure is ``economically desirable,'' including: a. infrastructure type/characteristics b. security (physical, network, cyber, etc.) c. suitability/viability (ability to readily use, upgrade, and maintain) d. readiness for reuse (e.g., already in use for wireless communications) e. scope of use (e.g., range of coverage) f. availability/accessibility (time/obstacles to acquiring access/ use) g. any use restrictions (e.g., prohibitions/limitations on commercial use) h. relationships with infrastructure owners/managers (e.g., ease/ difficulty in working with owners/managers) i. available alternatives in the area D. Fees General 16. FirstNet interprets each of the fees authorized by the Act, including user or subscription fees authorized by 47 U.S.C. 1428(a)(1), covered leasing agreement fees authorized by 47 U.S.C. 1428(a)(2), lease fees related to network equipment and infrastructure authorized by 47 U.S.C. 1428(a)(3), and the fee for State use of elements of the core network authorized by 47 U.S.C. 1442(f), as distinct and separate from each other and may be assessed individually or cumulatively, as applicable. Network User Fees 17. FirstNet concludes it may charge a user or subscription fee under 47 U.S.C. 1428(a)(1) to any user that seeks access to or use of the NPSBN. State Core Network User Fees 18. FirstNet concludes that the fees assessed on States assuming RAN responsibilities for use of the core network authorized by 47 U.S.C. 1442(f) [[Page 63525]] are distinct from and can be assessed in addition to any other fees authorized under the Act. Lease Fees Related to Network Capacity and Covered Leasing Agreements 19. FirstNet concludes that a covered leasing agreement under 47 U.S.C. 1428(a)(2) does not require a secondary user to ``construct, manage, and operate'' the entire FirstNet network, either from a coverage perspective or exclusively within a specific location. 20. FirstNet concludes that multiple covered leasing agreement lessees could coexist and be permitted access to excess network capacity in a particular geographic area. 21. FirstNet interprets that a covered leasing agreement lessee satisfies the definition under 47 U.S.C. 1428(a)(2) so long as the lessee does more than a nominal amount of constructing, managing, or operating the network. 22. FirstNet concludes that an entity entering into a covered leasing agreement under 47 U.S.C. 1428(a)(2) is not required to perform all three functions of constructing, managing, and operating a portion of the network, so long as one of the three is performed as part of the covered leasing agreement. 23. FirstNet interprets the reference to ``network capacity'' in the definition of covered leasing agreement under 47 U.S.C. 1428(a)(2)(B)(i) as a generic statement referring to the combination of spectrum and network elements, as defined by the Act, and including the core network as well as the radio access network of either FirstNet alone or that of the secondary user under a covered leasing agreement, whereby the core and radio access network are used for serving both FirstNet public safety entities and the secondary user's commercial customers. 24. FirstNet interprets the term ``secondary basis'' under 47 U.S.C. 1428(a)(2)(B)(i) to mean that network capacity will be available to the secondary user unless it is needed for public safety entities as defined in the Act. 25. FirstNet interprets the phrase ``spectrum allocated to such entity'' found in 47 U.S. Sec. 1428(a)(2)(B)(ii) as allowing all or a portion of the spectrum licensed to FirstNet by the Federal Communications Commission (``FCC'') under call sign ``WQQE234'' to be allocated for use on a secondary basis under a covered leasing agreement. 26. FirstNet concludes that the reference to ``dark fiber'' in 47 U.S.C. 1428(a)(2)(B)(ii) cannot literally be interpreted as such, and the reference should be interpreted to allow the covered leasing agreement lessee to transport such traffic on otherwise previously dark fiber facilities. Network Equipment and Infrastructure Fee 27. FirstNet interprets 47 U.S.C. 1428(a)(3) as being limited to the imposition of a fee for the use of static or isolated equipment or infrastructure, such as antennas or towers, rather than for use of FirstNet spectrum or access to network capacity. 28. FirstNet interprets the phrase ``constructed or otherwise owned by [FirstNet]'' under 47 U.S.C. 1428(a)(3) as meaning that FirstNet ordered or required the construction of such equipment or infrastructure, paid for such construction, simply owns such equipment, or does not own but, through a contract has rights to sublease access to, or use of, such equipment or infrastructure. III. Response to Comments FirstNet received 63 written comments to the First Notice from various stakeholders, including States, tribes, public safety organizations, commercial carriers, equipment vendors, utilities, and various associations. Comments on the First Notice included a large number of identical or similar written comments as well as oral statements made during meetings with FirstNet. FirstNet has carefully considered each of the comments submitted. It has grouped and summarized the comments according to common themes and has responded accordingly. All written comments can be found at www.regulations.gov. A. FirstNet Network 1. Final Definitions of Core Network and Radio Access Network The Act requires FirstNet to ``ensure the establishment of a nationwide, interoperable public safety broadband network'' that is ``based on a single national network architecture.'' \6\ This national network architecture must be capable of evolving with technological advancements and initially consists of two primary network components: A core network and a radio access network.\7\ The Act defines the ``core network'' as consisting of ``the national and regional data centers, and other elements and functions that may be distributed geographically . . . and provid[ing] connectivity between (i) the radio access network; and (ii) the public Internet or public switched network, or both . . . .'' \8\ Comparably, the Act defines the ``radio access network'' as consisting of ``all cell site equipment, antennas, and backhaul equipment . . . that are required to enable wireless communications with devices using the public safety broadband spectrum . . . .'' \9\ --------------------------------------------------------------------------- \6\ 47 U.S.C. 1422. \7\ 47 U.S.C. 1422(b). \8\ 47 U.S.C. 1422(b)(1). \9\ 47 U.S.C. 1422(b)(2)(B). --------------------------------------------------------------------------- In the First Notice, FirstNet made preliminary interpretations further describing the scope of the definitions of the core network and RAN. Although the vast majority of commenters agreed with the interpretations, some expressed concerns that many of the key elements of the network were either not referenced or did not meet the criteria described in the proposed definitions. In response to these comments, FirstNet has slightly modified its preliminary interpretation of the ``core network'' to include the Mobility Management Entity within the Evolved Packet Core elements under the 3GPP standards and its preliminary interpretation of ``radio access network'' to include backhaul to FirstNet designated consolidation points. Accordingly, FirstNet makes the following final interpretations related to the definitions of the core network and radio access network under the Act. (1) FirstNet defines the core network in accordance with 47 U.S.C. 1422(b) of the Act, relevant sections of the Interoperability Board Report, and commercial standards, as including, without limitation, the standard Evolved Packet Core elements under the 3GPP standards (including the Serving and Packet Data Network Gateways, Mobility Management Entity, Home Subscriber Server, and the Policy and Charging Rules Function), device services, location services, billing functions, and all other network elements and functions other than the radio access network. (2) FirstNet defines the radio access network in accordance with 47 U.S.C. 1422(b) of the Act, commercial standards, and the relevant sections of the Interoperability Board Report, as consisting of the standard E-UTRAN elements (e.g., the eNodeB) and including, but not limited to, backhaul to FirstNet designated consolidation points. Analysis of and Responses to Comments on Definition of Core Network and Radio Access Network Summary: The majority of commenters agreed with FirstNet's proposed definitions of ``core network'' and ``radio access network'' and supported FirstNet considering [[Page 63526]] commercial standards, as well as the relevant sections of the Interoperability Board Report and relevant 3GPP standards, to provide further clarity around the elements and functions of the core network and radio access network. Comment #1: A few commenters suggested that FirstNet simply use the definitions of the terms ``core network'' and ``radio access network'' that are provided in the statute. For example, one commenter recommended FirstNet use its wide discretion to consider other interpretations as it carries out its responsibilities to implement these network components and not use the Interoperability Board Report to help derive any legal interpretations of the Act. Response: FirstNet agrees that the Act provides it with broad discretion to carry out its mission. In view of that discretion, FirstNet has determined that it is important to provide additional clarity around certain delineation points between the core network and RAN as defined in the Act. These delineation points become especially important in light of the provisions of 47 U.S.C. 1442(e) that allow a State the opportunity, under certain conditions, to conduct the deployment of a RAN within that State and require that State to pay a fee for use of elements of the core network. In response to the specific example, the Act commissioned the development of the Interoperability Board Report to provide recommended technical requirements to ensure a nationwide level of interoperability for the NPSBN.\10\ Under the Act, these recommendations are intended to be used by FirstNet to help develop and maintain the NPSBN.\11\ Moreover, a State choosing to assume RAN responsibilities must demonstrate compliance with the minimum technical interoperability requirements of the Interoperability Board Report in order to receive approval of an alternative RAN plan.\12\ Based on these provisions, FirstNet believes that it is important to give credence to the relevant sections of the Interoperability Board Report that relate to the definitions of the core network and RAN. --------------------------------------------------------------------------- \10\ See 47 U.S.C. 1423(c). \11\ See id. \12\ See 47 U.S.C. 1442(e)(3)(C)(i). --------------------------------------------------------------------------- Comment #2: One commenter suggested the proposed definition of the core network is too expansive and recommended that FirstNet remove the language ``device services'' and ``all other network elements and functions other than the radio access network'' from its proposed definition of the core network. Response: FirstNet disagrees that the proposed definition of core network is too expansive and believes its proposed interpretation, including the language ``device services'' and ``all other network elements and functions other than the radio access network,'' is consistent with both the intent of the Act as well as commercially accepted standards for elements generally comprising a core network. Additionally, FirstNet's inclusion of these terms and phrases in its interpretation assist in providing clarity relating to the definitions of core network and RAN that are critical to establishing the NPSBN and providing the scope of responsibility a State will assume should it decide to conduct its own RAN deployment. In delivering a plan to a Governor for a determination of whether to assume responsibilities for RAN construction, FirstNet must delineate between what elements of the network in the proposed plan comprise the core network versus the elements that comprise the RAN. Accordingly, an understanding of the elements that make up the core network and RAN are critical for a Governor to make an effective determination about whether the State should have FirstNet conduct the RAN deployment or seek to conduct its own RAN deployment. Comment #3: One commenter expressed concern that the proposed definitions conflate issues of policy and technology and suggested FirstNet avoid rigid definitions of ``core network'' or ``radio access network'' and align their technical and business development efforts with standards that evolve with the long term evolution (``LTE'') broadband network. Response: FirstNet acknowledges the comment, but believes its proposed definitions of core network and RAN provide additional certainty that is necessary in order to build, operate, and maintain the NPSBN, while, at the same time, preserving, as contemplated by the Act, the necessary flexibility to take into account new and evolving technological advancements. For example, FirstNet's interpretations of both the core network and RAN are inclusive of the language of 47 U.S.C. 1422(b) that specifically states the national architecture must ``evolve[] with technological advancements and initially consists of'' the stated core network and RAN components.\13\ The use of the term ``initially'' and the phrase ``evolve with technological advancements'' in 47 U.S.C. 1422(b) indicate that Congress understood that the definitions of the core network and RAN could not be static. Rather, the definitions of such terms would need to be modified throughout the life of the network in order to help ensure that public safety would have a network capable of supporting and providing access to new and evolving technologies. --------------------------------------------------------------------------- \13\ 47 U.S.C. 1422(b) (emphasis added). --------------------------------------------------------------------------- Comment #4: Several commenters, although not disagreeing with the proposed definitions, expressed concerns that many of the key elements of the network were either not referenced or did not meet the criteria described in the proposed core network and radio access network definitions. To illustrate this point, multiple commenters reasoned that backhaul transport connecting the radio access network with the core network or the backhaul connecting the core network with geographically distributed databases and application servers, which are critical components of network integration, need to be addressed in the definitions. Response: FirstNet acknowledges the comments and has modified its interpretation of the ``core network'' to include the Mobility Management Entity within the Evolved Packet Core elements under the 3GPP standards and its interpretation of ``radio access network'' to include backhaul to FirstNet designated consolidation points. To the extent additional clarity is necessary to provide, for example, more specific demarcation points or the services and facilities that will be provided by the various network elements, FirstNet intends to address such matters, as appropriate, in the development of relevant network policies. 2. State Radio Access Networks Must Use the FirstNet Core Network As discussed above, the Act charges FirstNet with the duty to ``ensure the establishment of a nationwide, interoperable public safety broadband network . . . based on a single, national network architecture'' and defines the architecture of the network as initially consisting of a ``core network'' and a ``radio access network.'' \14\ In addition, FirstNet is required to take all actions necessary to ensure the building, deployment, and operation of the network, including issuing RFPs for the purposes of building, operating, and maintaining the network.\15\ Thus, overall, FirstNet is responsible for ensuring the core network and radio access network--subject to a State's [[Page 63527]] ability to assume RAN responsibilities under 47 U.S.C. 1442--is built, deployed, and operated throughout the country. --------------------------------------------------------------------------- \14\ 47 U.S.C. 1422. \15\ 47 U.S.C. 1426(b). --------------------------------------------------------------------------- As analyzed in the First Notice, the Act, although providing each State an opportunity to choose to conduct its own deployment of a RAN in such State, does not provide for State deployment of a core network separate from the core network that FirstNet is charged with deploying.\16\ Rather, according to the express language of the Act, FirstNet, is the only entity responsible for constructing a core network. This interpretation is further supported by the mandate that States that choose to build their own RAN must pay any user fees associated with such State's use of ``the core network.'' \17\ Thus, based on the language of and overall interoperability goals of the Act, FirstNet makes the following conclusion related to State use of the core network that is constructed, operated, and maintained by FirstNet. --------------------------------------------------------------------------- \16\ See 47 U.S.C. 1422, 1426. \17\ 47 U.S.C. 1442(f). --------------------------------------------------------------------------- FirstNet concludes that a State choosing to conduct its own deployment of a radio access network under 47 U.S.C. 1442(e) must use the FirstNet core network to provide public safety services within the State. Analysis of and Responses to Comments to Conclusions That State Radio Access Networks Must Use the FirstNet Core Network Summary: The majority of commenters agreed with FirstNet's proposed interpretation that a State choosing to conduct its own deployment of a radio access network must use the FirstNet core network to provide services to public safety entities. Comment #5: One commenter did not support FirstNet's preliminary conclusion, asserting that direct connectivity between the core network and the RAN is excluded from FirstNet's definitions and that such network element should be explicitly identified and included either in the definition of core network or radio access network. Response: FirstNet acknowledges the comment and notes that, as detailed above, it has clarified the definition of RAN to include backhaul to FirstNet consolidation points. Comment #6: One commenter agreed with the interpretation, but suggested FirstNet should remain open to the concept of a local ``back- up'' core network, particularly for States or localities with a high population density, with this ``back-up'' core network being designed and purposed to protect against a total loss of connectivity to the FirstNet nationwide core network. Response: The Act requires FirstNet to establish a network with adequate hardening, security, reliability, and resiliency requirements, including by addressing special considerations for areas and regions with unique homeland security or national security needs.\18\ Accordingly, FirstNet intends to construct the core network taking into account these considerations and does not anticipate the need to utilize a local ``back-up'' core network to serve public safety, which, among other things, potentially creates interoperability complexities and increases network security risks. --------------------------------------------------------------------------- \18\ See 47 U.S.C. 1426(b)(2), (c)(2)(A). --------------------------------------------------------------------------- B. Network Users 1. Final Definition of ``Secondary Users'' The Act in 47 U.S.C. 1428(a)(1) authorizes FirstNet to charge ``user or subscription'' fees to a ``secondary user . . . that seeks access to or use of the [NPSBN].'' Additionally, under 47 U.S.C. 1428(a)(2), FirstNet may enter into a covered leasing agreement with a ``secondary user'' that permits ``access to network capacity on a secondary basis for non-public safety purposes.'' \19\ The Act does not expressly define the term ``secondary user.'' However, based on the plain language of 47 U.S.C. 1428, FirstNet reaches the following conclusion with respect to the meaning of ``secondary user'': --------------------------------------------------------------------------- \19\ 47 U.S.C. 1428(a)(2). --------------------------------------------------------------------------- FirstNet defines a ``secondary user'' as any user that seeks access to or use of the NPSBN for non-public safety services. Analysis of and Responses to Comments on Definition of Secondary User Summary: The majority of commenters agreed with the interpretation of a ``secondary user'' as a user that accesses network capacity on a secondary basis for non-public safety services. One such commenter noted that while secondary users are not public safety entities, they are important to the financial sustainability of the network. Similarly, another commenter remarked that such non-public safety secondary users are necessary to implement a sophisticated and expansive network. Comment #7: One commenter expressed concern that FirstNet's proposed definition, as formulated, could be misconstrued and sought to clarify that ``secondary user'' captures those using the NPSBN for services that are not related to public safety. Response: FirstNet has attempted to clearly state in its final definition of ``secondary user'' (identified above) that such term refers to those users who access the NPSBN only for non-public safety services. Comment #8: One commenter expressed concern not about FirstNet's definition of ``secondary user,'' but about the potential for secondary users to adversely impact the performance of the NPSBN at the expense of public safety. Response: FirstNet is committed to ensuring the establishment of a network that meets the needs of public safety and believes that the 20 MHz of available spectrum along with the expected priority/preemption capabilities of the network will allow secondary users to access the NPSBN without negatively impacting public safety's use of the NPSBN. Comment #9: One commenter asserted that any user of the NPSBN that is not a ``public safety entity'' should be considered a ``consumer'' rather than a ``secondary user.'' These ``consumers'' would use the network on a secondary basis and yield to the primary user public safety entities. Response: While FirstNet certainly agrees with the general concept of public safety entities being the primary users of the NPSBN, we do not agree that the term ``consumer'' (which is also undefined in the Act) encompasses all other such users of the network on a secondary basis. First, the Act explicitly uses the term ``secondary user'' when referring to those entities or individuals that access or use the network ``on a secondary basis for non-public safety services.'' \20\ Secondly, this use of the term ``consumer'' is inconsistent with 47 U.S.C. 1432, which prohibits FirstNet from providing ``commercial telecommunications or information services directly to consumers.'' Under 47 U.S.C. 1428, FirstNet is expressly authorized to assess a network user fee on secondary users. Thus, given the Act prohibits FirstNet from providing certain services directly to consumers while it permits FirstNet to charge user fees to secondary users, by definition all secondary users cannot be consumers. --------------------------------------------------------------------------- \20\ 47 U.S.C. 1428(a). --------------------------------------------------------------------------- 2. Prohibition on Providing Commercial Services to Consumers The Act in 47 U.S.C. 1432(a) specifies that FirstNet ``shall not offer, provide, or market commercial telecommunications or information services directly to consumers.'' The Act does not define [[Page 63528]] the word ``consumer'' or indicate whether the word is limited to individuals or includes organizations and businesses. In addition, under the rule of construction specified in 47 U.S.C. 1432(b), nothing in 47 U.S.C. 1432(a) is intended to prohibit FirstNet from entering into covered leasing agreements with secondary users or to limit FirstNet from collecting lease fees for the use of network equipment and infrastructure. FirstNet makes the following conclusions with respect to these provisions of the Act: (1) The definition of ``consumers'' as used in 47 U.S.C. 1432 does not include: a. Any public safety entity as defined in the Act; b. States when seeking access to or use of the core network, equipment, or infrastructure; or c. entities when seeking access to or use of equipment and infrastructure. (2) The language of the Act under 47 U.S.C. 1432 prohibiting FirstNet from directly serving ``consumers'' does not limit potential types of public safety entities that may use or access the NPSBN for commercial telecommunications or information services. (3) The Act under 47 U.S.C. 1432 does not prohibit or act as a limit on secondary users with which FirstNet may enter into a covered leasing agreement. (4) The Act under 47 U.S.C. 1432 does not limit the pool of secondary users that may gain access to or use of the network on a secondary basis. Analysis of and Responses to Comments on Prohibition on Providing Commercial Services to Consumers Summary: The vast majority of commenters supported FirstNet's conclusions that the prohibition in 47 U.S.C. 1432 on FirstNet offering, providing, or marketing commercial telecommunications or information services to consumers does not apply to public safety entities, secondary users, States seeking access to or use of the FirstNet core network, or entities or States seeking access to or use of network equipment and infrastructure. These commenters agreed that the intent of this provision, whether explicit or implicit, is to exclude these entities from the definition of consumer. Comment #10: One commenter, while not disagreeing with FirstNet's conclusions, expressed concern regarding the potential for network capacity to become saturated from non-public safety use. Response: As noted above, FirstNet is committed to ensuring the establishment of a network that meets the needs of public safety and believes that the 20 MHz of available spectrum along with the expected priority/preemption capabilities of the network will allow secondary users to access the NPSBN without negatively impacting public safety's use of the NPSBN. C. Requests for Proposals 1. Requests for Proposals Process The Act in 47 U.S.C. 1426(b)(1)(B) requires FirstNet to issue ``open, transparent, and competitive'' RFPs. The procedural requirements for issuing such RFPs to meet the ``open, transparent, and competitive'' standard, however, are not defined in the Act. The Federal Acquisition Regulation (``FAR''), codified in 48 CFR parts 1- 99, is the primary regulation used by federal executive agencies in their acquisition of supplies and services with appropriated funds. Thus, FirstNet makes the following conclusion with respect to its compliance with this provision: FirstNet, to the extent it utilizes the FAR, concludes that complying with the FAR satisfies the open, transparent, and competitive requirements of 47 U.S.C. 1426(b)(1)(B). Analysis of and Responses to Comments on Requests for Proposals Summary: The overwhelming majority of commenters agreed with FirstNet's proposed interpretation that using the FAR satisfies FirstNet's statutory obligation to issue ``open, transparent, and competitive requests for proposals to private sector entities for the purposes of building, operating, and maintaining the network . . . '' In addition to commenting that compliance with the FAR is a reasonable way of meeting the Act's requirements for an ``open, transparent, and competitive'' RFP process, commenters noted that the FAR is a well understood process, and that by using it, FirstNet will save time by not having to develop a new process for issuing RFPs. Given the size and scope of FirstNet's task, commenters agreed that using the FAR was the most logical option. Some commenters agreed with using the FAR generally, but encouraged the use of only certain sections. Comment #11: Some commenters suggested that FirstNet exceed the FAR's requirements and reminded FirstNet of its authority to make agreements with States to use existing infrastructure. Response: FirstNet believes that using the FAR satisfies the Act's requirements. FAR Part 1.102 provides guiding principles of the Federal Acquisition System, namely ``promoting competition, and conducting business with integrity, fairness and openness.'' The policies and procedures of the FAR embody these principles. Adherence to the FAR, therefore, ensures compliance with the Act's mandate to issue ``open, transparent, and competitive'' RFPs. With respect to existing infrastructure, FirstNet plans to leverage such assets for the NPSBN to the extent it is economically desirable, as required by the Act (see below for a further discussion regarding existing infrastructure). Comment #12: One commenter disagreed with FirstNet's proposed interpretation, observing that the guidance in 47 U.S.C. 1426(b)(1)(B) would be unnecessary if Congress intended FirstNet to comply with the FAR, and that there is not a single reference to the FAR in the Act, despite the extensive statutory guidance the Act provides to FirstNet concerning the RFP process. Response: FirstNet acknowledges this comment and notes that its final conclusion is not that FirstNet believes it is required to use the FAR. Rather, FirstNet's interpretation merely is that by complying with the FAR, FirstNet is complying with this provision of the Act. 2. Minimum Technical Requirements 47 U.S.C. 1426(b)(1)(B) requires FirstNet to issue RFPs for the purposes of building, operating, and maintaining the network that use, without materially changing, the minimum technical requirements developed by the Interoperability Board. 47 U.S.C. 1422(b) and 47 U.S.C. 1426(c)(4) further obligate FirstNet to accommodate advancements in technology.\21\ With respect to these provisions, FirstNet makes the following final interpretation: --------------------------------------------------------------------------- \21\ Note that the Interoperability Board Report states that ``[g]iven that technology evolves rapidly, the network components and associated interfaces identified in the [Interoperability Board Report] . . . are also expected to evolve over time. As such, these aspects of the present document are intended to represent a state- of-the-art snapshot at the time of writing. In this context, the standards, functions, and interfaces referenced in the present document are intended to prescribe statements of intent. Variations or substitutions are expected to accommodate technological evolution consistent with the evolution of 3GPP and other applicable standards.'' Interoperability Board, Recommended Minimum Technical Requirements to Ensure Nationwide Interoperability for the Nationwide Public Safety Broadband Network at 27 (May 22, 2012), available at http://apps.fcc.gov/ecfs/document/view?id=7021919873. --------------------------------------------------------------------------- FirstNet concludes that it may make non-material changes or additions/subtractions to the minimal technical requirements developed by the [[Page 63529]] Interoperability Board, including as necessary to accommodate advancements in technology as required by the Act. Analysis of and Responses to Comments on Minimum Technical Requirements Summary: Commenters were virtually unanimous in agreeing with FirstNet's proposed interpretation regarding changes to the minimum technical requirements established by the Interoperability Board. Several commenters reasoned that such changes are necessary and fully contemplated (by Congress and the Interoperability Board itself) in order to keep pace with evolutions in technology, address issues that the Interoperability Board may not have considered, and fulfill requirements under the Act. Comment #13: One commenter maintained that the minimum technical requirements developed by the Interoperability Board are so fundamental that they should be utilized in their entirety regardless of advancements in technology. Response: FirstNet fully appreciates the value of the minimum technical requirements developed by the Interoperability Board and the critical role such requirements will have in the development and maintenance of the NPSBN. However, at the same time, FirstNet seeks to ensure that the most robust and technologically advanced network as possible is established for public safety in accordance with its statutory mission, and FirstNet is specifically directed by the Act to consider advancements in technology in the development and maintenance of the NPSBN.\22\ Accordingly, FirstNet intends to operate with those principles and directives in mind in forming the technical requirements for the network. --------------------------------------------------------------------------- \22\ See 47 U.S.C. 1422(b), 1426(c)(4). --------------------------------------------------------------------------- Comment #14: Multiple commenters urged FirstNet to use open standards in the implementation of advancements in technology, focusing on 3GPP architecture and interfaces that ensure operability, interoperability, and backwards compatibility. Some of these commenters pointed out that the Interoperability Board Report contemplates advancements in technology and supports the open standards process. Response: This comment is outside the scope of this notice. However, FirstNet acknowledges this recommendation and will consider it as any applicable decisions are developed on the matter. We note that the Act requires that the NPSBN be based on commercial standards, including those developed by 3GPP and that comply with the Interoperability Board Report. Comment #15: A few commenters suggested that FirstNet rely on the Interoperability Board or a similar independent technical advisory board going forward to establish and maintain ongoing minimum technical requirements and compliance with those requirements, in light of technological advances. Response: This comment is outside the scope of this notice. However, FirstNet acknowledges this recommendation and will consider it as any applicable decisions are developed on the matter. Comment #16: Some commenters offered input as to what delineates non-material versus material changes in the minimum technical requirements. Most commenters focused on critical features or functions being backwards compatible, as well as avoiding any reduction in the quality of mission critical service to end users. Response: FirstNet acknowledges these recommendations and will consider them as any applicable decisions are developed on the matter. FirstNet's goal is to ensure that the NPSBN operates in a manner that satisfies public safety's critical communication needs and is consistent with the material terms of the Interoperability Board report. 3. Final Definition of ``Rural'' The Act directs that FirstNet ``shall require deployment phases with substantial rural coverage milestones as part of each phase of the construction and deployment of the network . . . [and] utilize cost- effective opportunities to speed deployment in rural areas.'' \23\ Additionally, the Act states, in relevant part, that FirstNet ``shall develop . . . requests for proposals with appropriate . . . timetables for construction, including by taking into consideration the time needed to build out to rural areas.'' \24\ Finally, the Act explains that FirstNet ``shall develop . . . requests for proposals with appropriate . . . coverage areas, including coverage in rural and nonurban areas.'' \25\ --------------------------------------------------------------------------- \23\ 47 U.S.C. 1426(b)(3) (emphasis added). \24\ 47 U.S.C. 1426(c)(1)(A)(i) (emphasis added). \25\ 47 U.S.C. 1426(c)(1)(A)(ii) (emphasis added). --------------------------------------------------------------------------- Since the Act does not define ``rural,'' we found it necessary to define this term in order to fulfill our duties with respect to the above noted statutory rural coverage requirements.\26\ Accordingly, FirstNet makes the following final interpretation regarding the definition of ``rural'' under the Act: --------------------------------------------------------------------------- \26\ We appreciate the position the FCC has taken in this regard, and we are committed to fulfill our duties in a way that will meet these rural coverage requirements. See Implementing Public Safety Broadband Provisions of the Middle Class Tax Relief and Job Creation Act of 2012 et al., PS Docket 12-94 et al., Notice of Proposed Rulemaking, 28 FCC Rcd 2715, 2728-29 ] 46 (2013) (Band 14 NPRM) (noting that, ``We do not believe the Commission should specify rural milestones as a condition of FirstNet's license at this time. Rather, we recognize that at this early stage, the success of FirstNet requires flexibility with respect to deployment and planning, including deployment in rural areas. Moreover, FirstNet has an independent legal obligation under the Act to develop requests for proposals with appropriate timetables for construction, taking into account the time needed to build out in rural areas, and coverage areas, including coverage in rural and nonurban areas. In addition, in light of the Congressional oversight that will be exercised over FirstNet and its other transparency, reporting and consultation obligations, we do not believe it is necessary for the Commission to set specific benchmarks in this regard in these rules.''). --------------------------------------------------------------------------- (1) FirstNet defines ``rural,'' for the purposes of the Act, as having the same meaning as ``rural area'' in Section 601(b)(3) of the Rural Electrification Act of 1936, as amended (``Rural Electrification Act'' or ``REA''). Section 601(b)(3) of the Rural Electrification Act provides that ``[t]he term `rural area' means any area other than--(i) an area described in clause (i) or (ii) of Section 1991(a)(13)(A) of this title [section 343(a)(13)(A) of the Consolidated Farm and Rural Development Act]; and (ii) a city, town, or incorporated area that has a population of greater than 20,000 inhabitants.'' In turn, the relevant portion of Section 343(a)(13)(A) of the Consolidated Farm and Rural Development Act explains that the ``terms `rural' and `rural area' mean any area other than--(i) a city or town that has a population of greater than 50,000 inhabitants; and (ii) any urbanized area contiguous and adjacent to a city or town described in clause (i).'' Thus, as defined herein, the term ``rural'' means any area that is not: A city, town, or incorporated area that has a population of greater than 20,000 inhabitants any urbanized area contiguous and adjacent to a city or town that has a population of greater than 50,000 inhabitants. FirstNet also inquired whether there should be a lower boundary separate from the definition of ``rural,'' such as ``wilderness'' or ``frontier.'' Based in part on the comments received, FirstNet has reached the following final conclusion: (2) FirstNet concludes that a lower boundary (e.g., ``wilderness,'' ``frontier'') is not necessary to satisfy its rural coverage requirements under the Act, and thus FirstNet does not intend to establish any such boundary. [[Page 63530]] Analysis of and Responses to Comments on Definition of Rural Summary: Several commenters agreed with FirstNet's proposed definition of ``rural,'' pointing to the logic in using the Rural Electrification Act definition. Many of these commenters noted that the Rural Electrification Act definition is widely known and used. Some specifically agreed that adopting the Rural Electrification Act definition makes sense in light of U.S. Department of Agriculture's (``USDA'') use of the definition in the Rural Broadband Access Loan and Loan Guarantee Program. However, several other commenters disagreed with FirstNet's proposed definition of rural, suggesting that the Rural Electrification Act definition was inadequate. Multiple commenters expressed concerns that the Rural Electrification Act definition would not accurately measure or reflect the rural areas of a State. Comment #17: One commenter suggested that the geography of a State could complicate the Rural Electrification Act's application due to many remote, small but densely populated communities and areas without any defined government or established limits. Response: FirstNet acknowledges this comment and recognizes that certain States may not agree that the Rural Electrification Act definition (or any other definition for that matter) adequately defines rural areas for that State due to unique geographic or other circumstances. However, because FirstNet's mission is to ensure the establishment of a nationwide public safety broadband network, it is necessary to formulate a single, objective definition that can be reasonably applied on a national basis. By way of example, the Rural Electrification Act definition of ``rural area'' has been adopted by other federal agencies in determining rural areas on a national basis, including by the USDA in its Rural Broadband Access Loan and Loan Guarantee Program, for application nationwide.\27\ --------------------------------------------------------------------------- \27\ The USDA was designated as the lead federal agency for rural development by the Rural Development Policy Act of 1980. See 7 U.S.C. 2204b. --------------------------------------------------------------------------- It is also important to note that the primary purpose of the definition of ``rural'' under the Act is to measure whether the statutory requirement to include ``substantial rural coverage milestones'' in each phase of network deployment has been met. The definition does not determine a state or territory's ultimate coverage, which instead will be determined by the input obtained through the consultation process along with FirstNet's available resources.\28\ --------------------------------------------------------------------------- \28\ See 47 U.S.C. 1426(c)(2). --------------------------------------------------------------------------- Comment #18: Some commenters suggested that FirstNet adopt a modified or simplified aggregate population-derived definition utilizing various alternative methodologies. Specifically, a couple of commenters proposed the use of the U.S. Census Bureau's definition of ``rural''--i.e., all areas that are not ``urban areas,'' which consist of Urbanized Areas (50,000 or more people) and Urban Clusters (at least 2,500 and less than 50,000 people). Response: FirstNet recognizes that there are alternative definitions of ``rural'' utilized by other federal and state government entities and acknowledges that such definitions could be applied in the context of the nationwide public safety broadband network. Consistent with its analysis in the First Notice, FirstNet continues to believe, however, that the Rural Electrification Act's definition of ``rural area'' is sufficiently precise to allow for consistent application, as well as widely known and familiar to rural telecommunications providers, rural communities, and other stakeholders considering its utilization specifically with respect to rural broadband issues. In addition, other federal agencies have adopted the Rural Electrification Act definition. The USDA, in particular, utilizes this definition in a similar context through its implementation of the Rural Broadband Access Loan and Loan Guarantee Program, which funds the costs of construction, improvement, and acquisition of facilities and equipment to provide broadband service to eligible rural areas. Comment #19: Another commenter proposed the adoption of the definition used by USDA's Rural Business Service, indicating that rural areas under such definition are those with 50,000 persons or less excluding areas adjacent to communities larger than 50,000 persons. Response: See the response to Comment #18 above. Comment #20: Based on concerns expressed regarding the omission of unincorporated areas and the potential confusion caused by the ``adjacent and contiguous'' clause in the definition, an additional commenter recommended that ``rural'' be defined as a city, town, incorporated area, or unincorporated area that has a population of 20,000 or less. Response: FirstNet acknowledges the comment. To provide some additional clarity, we note that in identifying cities, towns, incorporated areas, and urbanized areas, FirstNet intends to leverage the U.S. Census definition of ``places,'' which is inclusive of towns, cities, villages, boroughs, and Census Designated Places (CDPs) (which in turn are inclusive, at least in part, of unincorporated areas).\29\ --------------------------------------------------------------------------- \29\ See U.S. Census Bureau, Geographic Terms and Concepts-- Place, http://www.census.gov/geo/reference/gtc/gtc_place.html. --------------------------------------------------------------------------- Comment #21: A few commenters advocated for a definition based on population density on a per county basis, with varying formulations. For instance, one such commenter proposed to define rural as a county with a population density of less than 160 persons per square mile, while another commenter proffered any county (i) with a population density of 100 or fewer inhabitants or (ii) of less than 225 square miles. A couple of other commenters suggested using a density of 5/7 to 159 persons per square mile on a county-by-county basis. Similarly, another commenter recommended adopting the definition used by the School-to-Work Opportunities program (i.e., a county, block number area in a nonmetropolitan county, or consortium of counties or such block number areas with a population density of 20 or fewer persons per square mile), reasoning that the definition is simple, from a program with a comparable process and approach (grant eligibility based on an approved State plan, intergovernmental cooperation, seed money for initial planning and development of school-to-work transition system), more objective, and more accurate in identifying rural areas. Response: See the response to Comment #18 above. Comment #22: Multiple commenters maintained that instead of adopting the Rural Electrification Act (or any other single definition), the definition of ``rural'' should be determined on a state-by-state basis. Response: FirstNet recognizes the Act strikes a balance between establishing a nationwide network and providing States an opportunity to make certain decisions about local implementation. As noted above, however, the primary purpose of the definition of ``rural'' is for measuring whether ``substantial rural coverage milestones'' have been included in each phase of deployment, which is required on a national basis. Thus, as a practical matter, there must be a single, uniform, and objective definition of ``rural'' that can be applied nationwide to assess whether such milestones have been met by FirstNet deployment. [[Page 63531]] 4. Existing Infrastructure Multiple provisions of the Act direct FirstNet to leverage existing infrastructure when ``economically desirable.'' \30\ 47 U.S.C. 1426(b)(1)(C) requires FirstNet in issuing RFPs to ``encourag[e] that such requests leverage, to the maximum extent economically desirable, existing commercial wireless infrastructure to speed deployment of the network.'' --------------------------------------------------------------------------- \30\ See 47 U.S.C. 1426(b)(1)(C), (b)(3), (c)(3). --------------------------------------------------------------------------- Similarly, 47 U.S.C. 1426(b)(3)--in addressing rural coverage and referring to FirstNet's duty and responsibility to issue RFPs--requires that ``[t]o the maximum extent economically desirable, such proposals shall include partnerships with existing commercial mobile providers to utilize cost-effective opportunities to speed deployments in rural areas.'' Finally, 47 U.S.C. 1426(c)(3) requires that in carrying out its various requirements related to the deployment and operation of the NPSBN, ``the First Responder Network Authority shall enter into agreements to utilize, to the maximum extent economically desirable, existing (A) commercial or other communications infrastructure; and (B) Federal, State, tribal, or local infrastructure.'' The Act, however, does not define or establish any criteria for determining economic desirability. FirstNet reaches the following conclusions regarding its obligations to leverage existing infrastructure under 47 U.S.C. 1426: 1. FirstNet interprets that 47 U.S.C. 1426(b)(1)(B) is intended to require FirstNet to encourage, through its requests, that responsive proposals leverage existing infrastructure in accordance with the provision. 2. FirstNet interprets 47 U.S.C. 1426(b)(3) as requiring FirstNet to include in its RFPs that such proposals leverage partnerships with commercial mobile providers where economically desirable. 3. FirstNet concludes that factors other than, or in addition to, cost may be utilized in assessing whether existing infrastructure is ``economically desirable,'' including: a. Infrastructure type/characteristics b. security (physical, network, cyber, etc.) c. suitability/viability (ability to readily use, upgrade, and maintain) d. readiness for reuse (e.g., already in use for wireless communications) e. scope of use (e.g., range of coverage) f. availability/accessibility (time/obstacles to acquiring access/ use) g. any use restrictions (e.g., prohibitions/limitations on commercial use) h. relationships with infrastructure owners/managers (e.g., ease/ difficulty in working with owners/managers) i. available alternatives in the area Analysis of and Responses to Comments on Leveraging Existing Infrastructure and Economic Desirability Summary: All commenters on the subject agreed with FirstNet's above interpretations of 47 U.S.C. 1426(b)(1)(C) and (b)(3) that the provisions are intended to require FirstNet to encourage, through its RFPs, that such responsive proposals leverage existing infrastructure and partnerships where economically desirable. Many of these commenters emphasized the importance of utilizing the RFP process to leverage existing assets and partnerships to lower costs and increase speed to market. Comment #23: Some commenters provided input regarding the factors to be considered in making an economic desirability determination, focusing largely on cost. Response: Although FirstNet agrees that cost is a major factor in assessing economic desirability, we do not believe it is the sole consideration. There are several other factors, as noted above, that are critical to making an informed determination as to whether the infrastructure should be leveraged. For instance, it is essential to understand the infrastructure's suitability for FirstNet's purposes, as well as its availability and readiness for use. Likewise, FirstNet's financial sustainability model is based in large part on its ability to lease excess spectrum capacity to commercial entities for secondary use, and thus consideration of any limitations on commercial use of the infrastructure is imperative. Comment #24: A couple of commenters suggested other factors besides cost in making an economic desirability determination of whether to leverage infrastructure. One such commenter recommended the consideration of geography and breadth of coverage in addition to cost. Another commenter urged that the requirements of public safety should be considered as a factor. Response: FirstNet acknowledges these recommendations and believes they are encompassed within FirstNet's final conclusion above regarding economic desirability factors. D. Fees FirstNet is required by the Act to be a self-funding entity and has been authorized to assess and collect certain fees for use of the network.\31\ Specifically, FirstNet has been authorized to assess and collect a (1) network user fee; (2) lease fee related to network capacity (also known as covered leasing agreement); (3) lease fees related to network equipment and infrastructure; and (4) a fee for State use of elements of the core network.\32\ In accordance with these provisions, FirstNet makes the following conclusions related to both the assessment and collection of fees authorized under the Act. --------------------------------------------------------------------------- \31\ See 47 U.S.C. 1428, 1442(f); 1426(b)(4)(C). \32\ 47 U.S.C. 1428, 1442(f). --------------------------------------------------------------------------- General (1) FirstNet interprets each of the fees authorized by the Act, including user or subscription fees authorized by 47 U.S.C. 1428(a)(1), covered leasing agreement fees authorized by 47 U.S.C. 1428 (a)(2), lease fees related to network equipment and infrastructure authorized by 47 U.S.C. 1428(a)(3), and the fee for State use of elements of the core network authorized by 47 U.S.C. 1442(f), as distinct and separate from each other and may be assessed individually or cumulatively, as applicable. Network User Fees (2) FirstNet concludes it may charge a user or subscription fee under 47 U.S.C. 1428(a)(1) to any user that seeks access to or use of the nationwide public safety broadband network. State Core Network User Fees (3) FirstNet concludes that the fees assessed on States assuming RAN responsibilities for use of the core network authorized by 47 U.S.C. 1442(f) are distinct from and can be assessed in addition to any other fees authorized under the Act. Lease Fees Related to Network Capacity and Covered Leasing Agreements (4) FirstNet concludes that a covered leasing agreement under 47 U.S.C. 1428(a)(2) does not require a secondary user to ``construct, manage, and operate'' the entire FirstNet network, either from a coverage perspective or exclusively within a specific location. (5) FirstNet concludes that multiple covered leasing agreement lessees could coexist and be permitted access to excess network capacity in a particular geographic area. [[Page 63532]] (6) FirstNet interprets that a covered leasing agreement lessee satisfies the definition under 47 U.S.C. 1428(a)(2) so long as the lessee does more than a nominal amount of constructing, managing, or operating the network. (7) FirstNet concludes that an entity entering into a covered leasing agreement under 47 U.S.C. 1428(a)(2) is not required to perform all three functions of constructing, managing, and operating a portion of the network, so long as one of the three is performed as part of the covered leasing agreement. (8) FirstNet interprets the reference to ``network capacity'' in the definition of covered leasing agreement under 47 U.S.C. 1428(a)(2)(B)(i) as a generic statement referring to the combination of spectrum and network elements, as defined by the Act, and includes the core network as well as the radio access network of either FirstNet alone or that of the secondary user under a covered leasing agreement whereby the core and radio access network are used for serving both FirstNet public safety entities and the secondary user's commercial customers. (9) FirstNet interprets the term ``secondary basis'' under 47 U.S.C. 1428(a)(2)(B)(i) to mean that network capacity will be available to the secondary user unless it is needed for public safety entities as defined in the Act. (10) FirstNet interprets the phrase ``spectrum allocated to such entity'' found in 47 U.S.C. 1428(a)(3)(B)(ii) as allowing all or a portion of the spectrum licensed to FirstNet by the FCC under call sign ``WQQE234'' to be allocated for use on a secondary basis under a covered leasing agreement. (11) FirstNet concludes the reference to ``dark fiber'' in 47 U.S.C. 1428(a)(2)(B)(ii) cannot literally be interpreted as such, and the reference should be interpreted to allow the covered leasing agreement lessee to transport such traffic on otherwise previously dark fiber facilities. Network Equipment and Infrastructure Fee (12) FirstNet interprets 47 U.S.C. 1428(a)(3) as being limited to the imposition of a fee for the use of static or isolated equipment or infrastructure, such as antennas or towers, rather than for use of FirstNet spectrum or access to network capacity. (13) FirstNet interprets the phrase ``constructed or otherwise owned by [FirstNet]'' under 47 U.S.C. 1428(a)(3) as meaning that FirstNet ordered or required the construction of such equipment or infrastructure, paid for such construction, simply owns such equipment, or does not own but, through a contract has rights to sublease access to, or use of, such equipment or infrastructure. Analysis of and Responses to Comments on Fees Summary: The majority of commenters agreed with the various interpretations related to the assessment and collection of fees by FirstNet. The commenters generally understood the authority the Act gives FirstNet to assess and collect fees and the importance of such fees as a key funding resource necessary to build, operate, and maintain the NPSBN. However, a few commenters, as described and responded to below, either disagreed with certain interpretations or provided general comments relating to the assessment and collection of the various fees under the Act. Comment #25: Two commenters agreed that FirstNet is authorized to assess a fee for use of the core network, but suggested that States assuming RAN deployment responsibilities should only pay the costs associated with using the core network and spectrum lease; they should not have to pay a network user or subscription fee, and that FirstNet is not allowed to, or should not, impose `user' fees on opt-out States in a cumulative manner as interpreted by FirstNet. Response: FirstNet disagrees and believes the Act authorizes FirstNet to assess a user or subscription fee to each entity, including a State choosing to deploy its own radio access network, that seeks access to or use of the network. Specifically, the Act authorizes FirstNet to collect a ``user or subscription fee from each entity, including any public safety entity or secondary user, that seeks access to or use of the [NPSBN].'' \33\ Consequently, a plain reading of this provision does not appear to provide any exclusionary language that would limit which entities may be charged a fee for access to or use of the network. Rather, as discussed in the First Notice, the use of the term ``including'' rather than ``consisting'' when describing the scope of entities that may be charged a network user fee indicates that this group is not limited to only public safety entities or secondary users, but would include other entities such as a State. Thus, FirstNet believes the plain language of the Act supports the conclusion that FirstNet may charge a user or subscription fee to any eligible user who seeks access to or use of the nationwide public safety broadband network, including, as appropriate, a State assuming responsibilities for radio access network deployment. --------------------------------------------------------------------------- \33\ 47 U.S.C. 1428(a)(1) (emphasis added). --------------------------------------------------------------------------- Comment #26: One commenter suggested that all public safety user fees should include nationwide coverage, and should be for unlimited use of the NPSBN. For example, a flat fee for unlimited usage (and no roaming fees) should be charged within each State, similar to today's carrier billing model. Response: This comment is outside the scope of this notice. However, FirstNet acknowledges the comment and will consider the recommendation as it continues planning for the deployment of the NPSBN. Comment #27: One commenter suggested that while the Act is unambiguous on allowing FirstNet to assess a fee to States assuming RAN responsibilities for use of the core network, it is important that this fee not be set so high so as to discourage States from opting out of the NPSBN. The commenter further noted that the ability of States to construct their own RAN is clearly permissive under the Act and, in fact, could enable significant growth and adoption of the NPSBN as long as the user fees for opt-out states are reasonable and contemplate the budgets of State and local public safety entities. Response: This comment is outside the scope of this notice. However, FirstNet acknowledges the comment and will consider the recommendation as it continues planning for the deployment of the NPSBN. Comment #28: Two commenters disagreed that ``all'' of the FirstNet Band 14 spectrum can be allocated for secondary use under a covered leasing agreement. Response: FirstNet believes its interpretation that the Act allows all or part of the spectrum licensed to FirstNet by the FCC under call sign ``WQQE234'' to be allocated for secondary use is supported by language of the Act. FirstNet is the entity created by the Act to ensure the establishment of the NPSBN, and as such has a duty to ensure the efficient use of the funding resources available to fulfill this duty, including the ability to permit access to spectrum capacity on a secondary basis. To best utilize these funding resources, the Act authorizes FirstNet to enter into covered leasing agreements which permit an entity entering into such an agreement to have access to, or use of, network capacity on a secondary basis for non-public safety services. The Act, as analyzed in the First Notice, does not provide any cap or limitation on how much of the network capacity may be allocated on a secondary basis. Thus, FirstNet believes the Act provides it [[Page 63533]] flexibility to determine how best to utilize network capacity as a funding resource to ensure both the establishment and self- sustainability of the network. Despite this flexibility, however, it is important to note that public safety entities will always have priority use of the NPSBN over any non-public safety user that gains access to, or use of, the network on a secondary basis. Comment #29: One commenter suggested that the States should determine how much capacity/spectrum is made available within its borders under a covered leasing agreement--rather than FirstNet making the determination. Response: FirstNet is the entity created by the Act to ensure the establishment of the NPSBN and is also the sole licensee of the 700 MHz D block spectrum and the existing public safety broadband spectrum.\34\ Thus, FirstNet is the sole entity responsible for determining how to allocate the spectrum under a covered leasing agreement. --------------------------------------------------------------------------- \34\ 47 U.S.C. 1421, 1422. --------------------------------------------------------------------------- Comment #30: One commenter cautioned FirstNet to ensure there is not an undue expectation by the covered leasing agreement lessee that its lease of the spectrum supersedes public safety's access to, and use of, that spectrum as a priority in all cases, and at all times. Response: FirstNet acknowledges the comment and reiterates that its primary mission is to ensure the establishment of a nationwide, interoperable network for public safety. Accordingly, public safety will always have priority use of the NPSBN over any non-public safety user that gains access to, or use of, the network on a secondary basis through a covered leasing agreement. Comment #31: One commenter recommended that FirstNet interpret 47 U.S.C. Sec. 1428(a)(3) to only apply to the RAN hardware in States that choose to participate in the NPSBN as proposed by FirstNet. Response: FirstNet interprets the phrase ``constructed or otherwise owned by [FirstNet]'' under 47 U.S.C. 1428(a)(3) as meaning that FirstNet ordered or required the construction of such equipment or infrastructure, paid for the construction, owns the equipment, or does not own the equipment, but, through a contract, has the right to sublease the equipment or infrastructure. Thus, unless the RAN hardware in any State falls within the criteria above, FirstNet would not have the authority to assess and collect a fee for use of such infrastructure or equipment. Dated: October 15, 2015. Jason Karp, Chief Counsel (Acting), First Responder Network Authority. [FR Doc. 2015-26621 Filed 10-19-15; 8:45 am] BILLING CODE 3510-TL-P
![Federal Register / Vol. 80, No. 202 / Tuesday, October 20, 2015 / Notices 63523
to secondary users on a statewide, DEPARTMENT OF COMMERCE continue to seek—public comments on
regional, or national basis—whichever many technical and economic aspects of
arrangement is most profitable. National Telecommunications and these RFPs through traditional
Information Administration procurement processes, including
Response: FirstNet agrees that it
should evaluate various funding and [Docket Number: 140821696–5908–04] requests for information (‘‘RFIs’’) and
deployment options in order to help potential draft RFPs and Special
RIN 0660–XC012 Notices, prior to issuance of RFPs.2
speed deployment and ensure the As a newly created entity, however,
establishment of a self-sustaining First Responder Network Authority; we are also confronted with many
broadband network dedicated to public Final Interpretations of Parts of the complex legal issues of first impression
safety throughout the nation. Middle Class Tax Relief and Job under the Act that will have a material
Comment #65: One commenter Creation Act of 2012 impact on the RFPs, responsive
suggested that, although revenue AGENCY: First Responder Network proposals, and our operations going
generated from a covered leasing Authority, National forward. Generally, the Administrative
agreement is an important financial Telecommunications and Information Procedure Act (‘‘APA’’) 3 provides the
contribution to the construction and Administration, U.S. Department of basic framework of administrative law
maintenance of the nationwide network, Commerce. governing agency action, including the
FirstNet should not allow the promise of procedural steps that must precede the
ACTION: Notice; final interpretations.
secondary leasing agreements to single- effective promulgation, amendment, or
handedly drive its strategic decisions. SUMMARY: The First Responder Network repeal of a rule by a federal agency.4
Authority (‘‘FirstNet’’) publishes this However, 47 U.S.C. 1426(d)(2) provides
Response: FirstNet acknowledges the that any action taken or decision made
comment and intends to analyze and Notice to issue final interpretations of
its enabling legislation that will inform, by FirstNet is exempt from the
determine the most efficient and requirements of the APA.
effective way to utilize its various among other things, forthcoming
requests for proposals, interpretive Nevertheless, although exempted
funding streams to ensure the from these procedural requirements, on
deployment and operation of a rules, and network policies. The
purpose of this Notice is to provide September 24, 2014, FirstNet published
nationwide broadband network for a public notice entitled ‘‘Proposed
public safety. stakeholders FirstNet’s interpretations
on many of the key preliminary Interpretations of Parts of the Middle
Comment #66: One commenter interpretations presented in the Class Tax Relief and Job Creation Act of
suggested that State law, not FirstNet, proposed interpretations published on 2012’’ (hereinafter ‘‘the First Notice’’),5
should determine the ability of an opt- September 24, 2014. seeking public comments on
out State to profit from public-private preliminary interpretations, as well as
DATES: Effective October 20, 2015.
partnerships or covered leasing technical and economic issues, on
FOR FURTHER INFORMATION CONTACT: Eli certain foundational legal issues to help
agreements.
Veenendaal, First Responder Network guide our efforts in achieving our
Response: The Act authorizes States Authority, National
to enter into covered leasing agreements mission.
Telecommunications and Information The purpose of this Notice is to
with secondary users through public- Administration, U.S. Department of provide stakeholders notice of the final
private arrangements and establishes the Commerce, 12201 Sunrise Valley Drive, legal interpretations on many of the key
parameters of those arrangements.85 M/S 243, Reston, VA 20192; 703–648– preliminary interpretations presented in
Indeed, the Act explicitly limits the use 4167; or elijah.veenendaal@firstnet.gov. the First Notice. Additional background
of any revenue gained by a State SUPPLEMENTARY INFORMATION: and rationale for this action and
through a covered leasing agreement to explanations of FirstNet’s
constructing, maintaining, operating, or I. Introduction and Background
interpretations were included in the
improving the RAN of that State.86 The Middle Class Tax Relief and Job First Notice and are not repeated herein.
Similarly, FirstNet has also concluded Creation Act of 2012 (Pub. L. 112–96, The section immediately below labeled
that section 1428(d), authorizing a State Title VI, 126 Stat. 256 (codified at 47 ‘‘Final Interpretations’’ summarizes
to enter into public-private U.S.C. 1401 et seq.)) (the ‘‘Act’’) FirstNet’s final interpretations with
partnerships, was intended by Congress established the First Responder Network respect to the First Notice. Thereafter,
to be read consistently, to the extent Authority (‘‘FirstNet’’) as an the section labeled ‘‘Response to
such an arrangement is considered independent authority within the Comments’’ summarizes the comments
something different from a covered National Telecommunications and
leasing agreement, so as to ensure Information Administration (‘‘NTIA’’). 2 The pronouns ‘‘we’’ or ‘‘our’’ throughout this
ongoing reinvestment of all revenues The Act establishes FirstNet’s duty and Notice refer to ‘‘FirstNet’’ alone and not FirstNet,
into the network. This is consistent with responsibility to take all actions NTIA, and the U.S. Department of Commerce as a
collective group.
the overall purpose and intent of the Act necessary to ensure the building, 3 See 5 U.S.C. 551–59, 701–06, 1305, 3105, 3344,
to ensure the deployment and operation deployment, and operation of a 5372, 7521.
of the NPSBN. nationwide public safety broadband 4 See 5 U.S.C. 551–559. The APA defines a ‘‘rule’’
Dated: October 15, 2015. network (‘‘NPSBN’’).1 as ‘‘the whole or a part of an agency statement of
One of FirstNet’s initial steps in general or particular applicability and future effect
Jason Karp, designed to implement, interpret, or prescribe law
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carrying out this responsibility under or policy or describing the organization, procedure,
Chief Counsel (Acting), First Responder the Act is the issuance of open, or practice requirements of an agency and includes
Network Authority. transparent, and competitive requests the approval or prescription for the future of rates,
[FR Doc. 2015–26622 Filed 10–19–15; 8:45 am] for proposals (‘‘RFPs’’) for the purposes wages, corporate or financial structures or
reorganizations thereof, prices, facilities,
BILLING CODE 3510–TL–P of building, operating, and maintaining appliances, services or allowances therefor or of
the network. We have sought—and will valuations, costs, or accounting, or practices bearing
85 See 47 U.S.C. 1442(g)(2). on any of the foregoing.’’ 5 U.S.C. 551(4).
86 See id. 1 47 U.S.C. 1426(b). 5 79 FR 57058 (September 24, 2014).
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received on the preliminary entities that may use or access the is not necessary to satisfy its rural
interpretations contained in the First NPSBN for commercial coverage requirements under the Act,
Notice and provides FirstNet’s telecommunications or information and thus FirstNet does not intend to
responses to such comments, including services. establish any such boundary.
further explanations and any changes to 7. The Act under 47 U.S.C. 1432 does
not prohibit or act as a limit on Existing Infrastructure
FirstNet’s interpretations.
secondary users with which FirstNet 13. FirstNet interprets that 47 U.S.C.
II. Final Interpretations may enter into a covered leasing 1426(b)(1)(B) is intended to require
A. FirstNet Network agreement. FirstNet to encourage, through its
8. The Act under 47 U.S.C. 1432 does requests, that responsive proposals
Final Definitions of Core Network and not limit the pool of secondary users leverage existing infrastructure in
Radio Access Network that may gain access to or use of the accordance with the provision.
1. FirstNet defines the core network in network on a secondary basis. 14. FirstNet interprets 47 U.S.C.
accordance with 47 U.S.C. 1422(b) of C. Requests for Proposals 1426(b)(3) as requiring FirstNet to
the Act, relevant sections of the include in its RFPs that such proposals
Interoperability Board Report, and Requests for Proposals Process leverage partnerships with commercial
commercial standards, as including, 9. FirstNet, to the extent it utilizes the mobile providers where economically
without limitation, the standard FAR, concludes that complying with the desirable.
Evolved Packet Core elements under the FAR satisfies the open, transparent, and 15. FirstNet concludes that factors
3rd Generation Partnership Project competitive requirements of 47 U.S.C. other than, or in addition to, cost may
(‘‘3GPP’’) standards (including the 1426(b)(1)(B). be utilized in assessing whether existing
Serving and Packet Data Network infrastructure is ‘‘economically
Gateways, Mobility Management Entity, Minimum Technical Requirements desirable,’’ including:
Home Subscriber Server, and the Policy 10. FirstNet concludes that it may a. infrastructure type/characteristics
and Charging Rules Function), device make non-material changes or b. security (physical, network, cyber,
services, location services, billing additions/subtractions to the minimal etc.)
functions, and all other network technical requirements developed by c. suitability/viability (ability to
elements and functions other than the the Interoperability Board, including as readily use, upgrade, and maintain)
radio access network. necessary to accommodate d. readiness for reuse (e.g., already in
2. FirstNet defines the radio access advancements in technology as required use for wireless communications)
by the Act. e. scope of use (e.g., range of coverage)
network in accordance with 47 U.S.C. f. availability/accessibility (time/
1422(b) of the Act, commercial Final Definition of ‘‘Rural’’ obstacles to acquiring access/use)
standards, and the relevant sections of g. any use restrictions (e.g.,
the Interoperability Board Report, as 11. FirstNet defines ‘‘rural,’’ for the
purposes of the Act, as having the same prohibitions/limitations on commercial
consisting of the standard E–UTRAN use)
elements (e.g., the eNodeB) and meaning as ‘‘rural area’’ in Section
601(b)(3) of the Rural Electrification Act h. relationships with infrastructure
including, but not limited to, backhaul owners/managers (e.g., ease/difficulty in
to FirstNet designated consolidation of 1936, as amended (‘‘Rural
Electrification Act’’). Section 601(b)(3) working with owners/managers)
points. i. available alternatives in the area
of the Rural Electrification Act provides
3. FirstNet concludes that a State
that ‘‘[t]he term ‘rural area’ means any D. Fees
choosing to conduct its own
area other than—(i) an area described in
deployment of a radio access network General
clause (i) or (ii) of Section
under 47 U.S.C. 1442(e) must use the
1991(a)(13)(A) of this title [section 16. FirstNet interprets each of the fees
FirstNet core network to provide public
343(a)(13)(A) of the Consolidated Farm authorized by the Act, including user or
safety services within the State.
and Rural Development Act]; and (ii) a subscription fees authorized by 47
B. Users city, town, or incorporated area that has U.S.C. 1428(a)(1), covered leasing
a population of greater than 20,000 agreement fees authorized by 47 U.S.C.
Network Users
inhabitants.’’ In turn, the relevant 1428(a)(2), lease fees related to network
4. FirstNet defines a ‘‘secondary user’’ portion of Section 343(a)(13)(A) of the equipment and infrastructure
as any user that seeks access to or use Consolidated Farm and Rural authorized by 47 U.S.C. 1428(a)(3), and
of the NPSBN for non-public safety Development Act explains that the the fee for State use of elements of the
services. ‘‘terms ‘rural’ and ‘rural area’ mean any core network authorized by 47 U.S.C.
Prohibition on Providing Commercial area other than—(i) a city or town that 1442(f), as distinct and separate from
Services to Consumers has a population of greater than 50,000 each other and may be assessed
inhabitants; and (ii) any urbanized area individually or cumulatively, as
5. The definition of ‘‘consumers’’ as contiguous and adjacent to a city or applicable.
used in 47 U.S.C. 1432 does not include: town described in clause (i).’’ Thus, as
a. any public safety entity as defined defined herein, the term ‘‘rural’’ means Network User Fees
in the Act; any area that is not: 17. FirstNet concludes it may charge
b. States when seeking access to or • A city, town, or incorporated area a user or subscription fee under 47
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use of the core network, equipment, or that has a population of greater than U.S.C. 1428(a)(1) to any user that seeks
infrastructure; or 20,000 inhabitants access to or use of the NPSBN.
c. entities when seeking access to or • any urbanized area contiguous and
use of equipment or infrastructure. adjacent to a city or town that has a State Core Network User Fees
6. The language of the Act under 47 population of greater than 50,000 18. FirstNet concludes that the fees
U.S.C. 1432 prohibiting FirstNet from inhabitants assessed on States assuming RAN
directly serving ‘‘consumers’’ does not 12. FirstNet concludes that a lower responsibilities for use of the core
limit potential types of public safety boundary (e.g., ‘‘wilderness,’’ ‘‘frontier’’) network authorized by 47 U.S.C. 1442(f)
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are distinct from and can be assessed in transport such traffic on otherwise both . . . .’’ 8 Comparably, the Act
addition to any other fees authorized previously dark fiber facilities. defines the ‘‘radio access network’’ as
under the Act. consisting of ‘‘all cell site equipment,
Network Equipment and Infrastructure
antennas, and backhaul equipment . . .
Lease Fees Related to Network Capacity Fee
that are required to enable wireless
and Covered Leasing Agreements 27. FirstNet interprets 47 U.S.C. communications with devices using the
19. FirstNet concludes that a covered 1428(a)(3) as being limited to the public safety broadband spectrum . . .
leasing agreement under 47 U.S.C. imposition of a fee for the use of static .’’ 9
1428(a)(2) does not require a secondary or isolated equipment or infrastructure, In the First Notice, FirstNet made
user to ‘‘construct, manage, and such as antennas or towers, rather than preliminary interpretations further
operate’’ the entire FirstNet network, for use of FirstNet spectrum or access to describing the scope of the definitions
either from a coverage perspective or network capacity. of the core network and RAN. Although
exclusively within a specific location. 28. FirstNet interprets the phrase the vast majority of commenters agreed
20. FirstNet concludes that multiple ‘‘constructed or otherwise owned by with the interpretations, some expressed
covered leasing agreement lessees could [FirstNet]’’ under 47 U.S.C. 1428(a)(3) as concerns that many of the key elements
coexist and be permitted access to meaning that FirstNet ordered or of the network were either not
excess network capacity in a particular required the construction of such referenced or did not meet the criteria
geographic area. equipment or infrastructure, paid for described in the proposed definitions.
21. FirstNet interprets that a covered such construction, simply owns such In response to these comments, FirstNet
leasing agreement lessee satisfies the equipment, or does not own but, has slightly modified its preliminary
definition under 47 U.S.C. 1428(a)(2) so through a contract has rights to sublease interpretation of the ‘‘core network’’ to
long as the lessee does more than a access to, or use of, such equipment or include the Mobility Management Entity
nominal amount of constructing, infrastructure. within the Evolved Packet Core
managing, or operating the network. elements under the 3GPP standards and
22. FirstNet concludes that an entity III. Response to Comments its preliminary interpretation of ‘‘radio
entering into a covered leasing FirstNet received 63 written access network’’ to include backhaul to
agreement under 47 U.S.C. 1428(a)(2) is comments to the First Notice from FirstNet designated consolidation
not required to perform all three various stakeholders, including States, points. Accordingly, FirstNet makes the
functions of constructing, managing, tribes, public safety organizations, following final interpretations related to
and operating a portion of the network, commercial carriers, equipment the definitions of the core network and
so long as one of the three is performed vendors, utilities, and various radio access network under the Act.
as part of the covered leasing agreement. associations. Comments on the First (1) FirstNet defines the core network
23. FirstNet interprets the reference to Notice included a large number of in accordance with 47 U.S.C. 1422(b) of
‘‘network capacity’’ in the definition of identical or similar written comments as the Act, relevant sections of the
covered leasing agreement under 47 well as oral statements made during Interoperability Board Report, and
U.S.C. 1428(a)(2)(B)(i) as a generic meetings with FirstNet. FirstNet has commercial standards, as including,
statement referring to the combination carefully considered each of the without limitation, the standard
of spectrum and network elements, as comments submitted. It has grouped Evolved Packet Core elements under the
defined by the Act, and including the and summarized the comments 3GPP standards (including the Serving
core network as well as the radio access according to common themes and has and Packet Data Network Gateways,
network of either FirstNet alone or that responded accordingly. All written Mobility Management Entity, Home
of the secondary user under a covered comments can be found at Subscriber Server, and the Policy and
leasing agreement, whereby the core and www.regulations.gov. Charging Rules Function), device
radio access network are used for services, location services, billing
serving both FirstNet public safety A. FirstNet Network functions, and all other network
entities and the secondary user’s 1. Final Definitions of Core Network and elements and functions other than the
commercial customers. Radio Access Network radio access network.
24. FirstNet interprets the term (2) FirstNet defines the radio access
‘‘secondary basis’’ under 47 U.S.C. The Act requires FirstNet to ‘‘ensure network in accordance with 47 U.S.C.
1428(a)(2)(B)(i) to mean that network the establishment of a nationwide, 1422(b) of the Act, commercial
capacity will be available to the interoperable public safety broadband standards, and the relevant sections of
secondary user unless it is needed for network’’ that is ‘‘based on a single the Interoperability Board Report, as
public safety entities as defined in the national network architecture.’’ 6 This consisting of the standard E–UTRAN
Act. national network architecture must be elements (e.g., the eNodeB) and
25. FirstNet interprets the phrase capable of evolving with technological including, but not limited to, backhaul
‘‘spectrum allocated to such entity’’ advancements and initially consists of to FirstNet designated consolidation
found in 47 U.S. § 1428(a)(2)(B)(ii) as two primary network components: A points.
allowing all or a portion of the spectrum core network and a radio access
licensed to FirstNet by the Federal network.7 The Act defines the ‘‘core Analysis of and Responses to Comments
Communications Commission (‘‘FCC’’) network’’ as consisting of ‘‘the national on Definition of Core Network and
under call sign ‘‘WQQE234’’ to be and regional data centers, and other Radio Access Network
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allocated for use on a secondary basis elements and functions that may be Summary: The majority of
under a covered leasing agreement. distributed geographically . . . and commenters agreed with FirstNet’s
26. FirstNet concludes that the provid[ing] connectivity between (i) the proposed definitions of ‘‘core network’’
reference to ‘‘dark fiber’’ in 47 U.S.C. radio access network; and (ii) the public and ‘‘radio access network’’ and
1428(a)(2)(B)(ii) cannot literally be Internet or public switched network, or supported FirstNet considering
interpreted as such, and the reference
should be interpreted to allow the 6 47 U.S.C. 1422. 8 47 U.S.C. 1422(b)(1).
covered leasing agreement lessee to 7 47 U.S.C. 1422(b). 9 47 U.S.C. 1422(b)(2)(B).
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commercial standards, as well as the from its proposed definition of the core understood that the definitions of the
relevant sections of the Interoperability network. core network and RAN could not be
Board Report and relevant 3GPP Response: FirstNet disagrees that the static. Rather, the definitions of such
standards, to provide further clarity proposed definition of core network is terms would need to be modified
around the elements and functions of too expansive and believes its proposed throughout the life of the network in
the core network and radio access interpretation, including the language order to help ensure that public safety
network. ‘‘device services’’ and ‘‘all other would have a network capable of
Comment #1: A few commenters network elements and functions other supporting and providing access to new
suggested that FirstNet simply use the than the radio access network,’’ is and evolving technologies.
definitions of the terms ‘‘core network’’ consistent with both the intent of the Comment #4: Several commenters,
and ‘‘radio access network’’ that are Act as well as commercially accepted although not disagreeing with the
provided in the statute. For example, standards for elements generally proposed definitions, expressed
one commenter recommended FirstNet comprising a core network. concerns that many of the key elements
use its wide discretion to consider other Additionally, FirstNet’s inclusion of of the network were either not
interpretations as it carries out its these terms and phrases in its referenced or did not meet the criteria
responsibilities to implement these interpretation assist in providing clarity described in the proposed core network
network components and not use the relating to the definitions of core and radio access network definitions. To
Interoperability Board Report to help network and RAN that are critical to illustrate this point, multiple
derive any legal interpretations of the establishing the NPSBN and providing commenters reasoned that backhaul
Act. the scope of responsibility a State will transport connecting the radio access
Response: FirstNet agrees that the Act assume should it decide to conduct its network with the core network or the
provides it with broad discretion to own RAN deployment. In delivering a backhaul connecting the core network
carry out its mission. In view of that plan to a Governor for a determination with geographically distributed
discretion, FirstNet has determined that of whether to assume responsibilities for databases and application servers,
it is important to provide additional RAN construction, FirstNet must which are critical components of
clarity around certain delineation points delineate between what elements of the network integration, need to be
between the core network and RAN as network in the proposed plan comprise addressed in the definitions.
defined in the Act. These delineation the core network versus the elements Response: FirstNet acknowledges the
points become especially important in that comprise the RAN. Accordingly, an comments and has modified its
light of the provisions of 47 U.S.C. understanding of the elements that interpretation of the ‘‘core network’’ to
1442(e) that allow a State the make up the core network and RAN are include the Mobility Management Entity
opportunity, under certain conditions, critical for a Governor to make an within the Evolved Packet Core
to conduct the deployment of a RAN effective determination about whether elements under the 3GPP standards and
within that State and require that State the State should have FirstNet conduct its interpretation of ‘‘radio access
to pay a fee for use of elements of the the RAN deployment or seek to conduct network’’ to include backhaul to
core network. In response to the specific its own RAN deployment. FirstNet designated consolidation
example, the Act commissioned the Comment #3: One commenter points. To the extent additional clarity
development of the Interoperability expressed concern that the proposed is necessary to provide, for example,
Board Report to provide recommended definitions conflate issues of policy and more specific demarcation points or the
technical requirements to ensure a technology and suggested FirstNet avoid services and facilities that will be
nationwide level of interoperability for rigid definitions of ‘‘core network’’ or provided by the various network
the NPSBN.10 Under the Act, these ‘‘radio access network’’ and align their elements, FirstNet intends to address
recommendations are intended to be technical and business development such matters, as appropriate, in the
used by FirstNet to help develop and efforts with standards that evolve with development of relevant network
maintain the NPSBN.11 Moreover, a the long term evolution (‘‘LTE’’) policies.
State choosing to assume RAN broadband network.
Response: FirstNet acknowledges the 2. State Radio Access Networks Must
responsibilities must demonstrate
comment, but believes its proposed Use the FirstNet Core Network
compliance with the minimum
technical interoperability requirements definitions of core network and RAN As discussed above, the Act charges
of the Interoperability Board Report in provide additional certainty that is FirstNet with the duty to ‘‘ensure the
order to receive approval of an necessary in order to build, operate, and establishment of a nationwide,
alternative RAN plan.12 Based on these maintain the NPSBN, while, at the same interoperable public safety broadband
provisions, FirstNet believes that it is time, preserving, as contemplated by the network . . . based on a single, national
important to give credence to the Act, the necessary flexibility to take into network architecture’’ and defines the
relevant sections of the Interoperability account new and evolving technological architecture of the network as initially
Board Report that relate to the advancements. For example, FirstNet’s consisting of a ‘‘core network’’ and a
definitions of the core network and interpretations of both the core network ‘‘radio access network.’’ 14 In addition,
RAN. and RAN are inclusive of the language FirstNet is required to take all actions
Comment #2: One commenter of 47 U.S.C. 1422(b) that specifically necessary to ensure the building,
suggested the proposed definition of the states the national architecture must deployment, and operation of the
core network is too expansive and ‘‘evolve[] with technological network, including issuing RFPs for the
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recommended that FirstNet remove the advancements and initially consists of’’ purposes of building, operating, and
language ‘‘device services’’ and ‘‘all the stated core network and RAN maintaining the network.15 Thus,
other network elements and functions components.13 The use of the term overall, FirstNet is responsible for
other than the radio access network’’ ‘‘initially’’ and the phrase ‘‘evolve with ensuring the core network and radio
technological advancements’’ in 47 access network—subject to a State’s
10 See 47 U.S.C. 1423(c). U.S.C. 1422(b) indicate that Congress
11 See id. 14 47 U.S.C. 1422.
12 See 47 U.S.C. 1442(e)(3)(C)(i). 13 47 U.S.C. 1422(b) (emphasis added). 15 47 U.S.C. 1426(b).
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ability to assume RAN responsibilities density, with this ‘‘back-up’’ core those using the NPSBN for services that
under 47 U.S.C. 1442—is built, network being designed and purposed are not related to public safety.
deployed, and operated throughout the to protect against a total loss of Response: FirstNet has attempted to
country. connectivity to the FirstNet nationwide clearly state in its final definition of
As analyzed in the First Notice, the core network. ‘‘secondary user’’ (identified above) that
Act, although providing each State an Response: The Act requires FirstNet such term refers to those users who
opportunity to choose to conduct its to establish a network with adequate access the NPSBN only for non-public
own deployment of a RAN in such hardening, security, reliability, and safety services.
State, does not provide for State resiliency requirements, including by Comment #8: One commenter
deployment of a core network separate addressing special considerations for expressed concern not about FirstNet’s
from the core network that FirstNet is areas and regions with unique definition of ‘‘secondary user,’’ but
charged with deploying.16 Rather, homeland security or national security about the potential for secondary users
according to the express language of the needs.18 Accordingly, FirstNet intends to adversely impact the performance of
Act, FirstNet, is the only entity to construct the core network taking into the NPSBN at the expense of public
responsible for constructing a core account these considerations and does safety.
network. This interpretation is further not anticipate the need to utilize a local Response: FirstNet is committed to
supported by the mandate that States ‘‘back-up’’ core network to serve public ensuring the establishment of a network
that choose to build their own RAN safety, which, among other things, that meets the needs of public safety
must pay any user fees associated with potentially creates interoperability and believes that the 20 MHz of
such State’s use of ‘‘the core complexities and increases network available spectrum along with the
network.’’ 17 Thus, based on the security risks. expected priority/preemption
language of and overall interoperability capabilities of the network will allow
B. Network Users secondary users to access the NPSBN
goals of the Act, FirstNet makes the
following conclusion related to State 1. Final Definition of ‘‘Secondary Users’’ without negatively impacting public
use of the core network that is The Act in 47 U.S.C. 1428(a)(1) safety’s use of the NPSBN.
constructed, operated, and maintained Comment #9: One commenter
authorizes FirstNet to charge ‘‘user or
by FirstNet. asserted that any user of the NPSBN that
subscription’’ fees to a ‘‘secondary user
FirstNet concludes that a State is not a ‘‘public safety entity’’ should be
. . . that seeks access to or use of the
choosing to conduct its own [NPSBN].’’ Additionally, under 47 considered a ‘‘consumer’’ rather than a
deployment of a radio access network U.S.C. 1428(a)(2), FirstNet may enter ‘‘secondary user.’’ These ‘‘consumers’’
under 47 U.S.C. 1442(e) must use the into a covered leasing agreement with a would use the network on a secondary
FirstNet core network to provide public ‘‘secondary user’’ that permits ‘‘access basis and yield to the primary user
safety services within the State. to network capacity on a secondary public safety entities.
Response: While FirstNet certainly
Analysis of and Responses to Comments basis for non-public safety purposes.’’ 19
agrees with the general concept of
to Conclusions That State Radio Access The Act does not expressly define the
public safety entities being the primary
Networks Must Use the FirstNet Core term ‘‘secondary user.’’ However, based
on the plain language of 47 U.S.C. 1428, users of the NPSBN, we do not agree
Network that the term ‘‘consumer’’ (which is also
FirstNet reaches the following
Summary: The majority of conclusion with respect to the meaning undefined in the Act) encompasses all
commenters agreed with FirstNet’s of ‘‘secondary user’’: other such users of the network on a
proposed interpretation that a State FirstNet defines a ‘‘secondary user’’ as secondary basis. First, the Act explicitly
choosing to conduct its own any user that seeks access to or use of uses the term ‘‘secondary user’’ when
deployment of a radio access network the NPSBN for non-public safety referring to those entities or individuals
must use the FirstNet core network to services. that access or use the network ‘‘on a
provide services to public safety secondary basis for non-public safety
entities. Analysis of and Responses to Comments services.’’ 20 Secondly, this use of the
Comment #5: One commenter did not on Definition of Secondary User term ‘‘consumer’’ is inconsistent with
support FirstNet’s preliminary Summary: The majority of 47 U.S.C. 1432, which prohibits FirstNet
conclusion, asserting that direct commenters agreed with the from providing ‘‘commercial
connectivity between the core network interpretation of a ‘‘secondary user’’ as telecommunications or information
and the RAN is excluded from FirstNet’s a user that accesses network capacity on services directly to consumers.’’ Under
definitions and that such network a secondary basis for non-public safety 47 U.S.C. 1428, FirstNet is expressly
element should be explicitly identified services. One such commenter noted authorized to assess a network user fee
and included either in the definition of that while secondary users are not on secondary users. Thus, given the Act
core network or radio access network. public safety entities, they are important prohibits FirstNet from providing
Response: FirstNet acknowledges the to the financial sustainability of the certain services directly to consumers
comment and notes that, as detailed network. Similarly, another commenter while it permits FirstNet to charge user
above, it has clarified the definition of remarked that such non-public safety fees to secondary users, by definition all
RAN to include backhaul to FirstNet secondary users are necessary to secondary users cannot be consumers.
consolidation points. implement a sophisticated and
Comment #6: One commenter agreed 2. Prohibition on Providing Commercial
expansive network.
Services to Consumers
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with the interpretation, but suggested Comment #7: One commenter
FirstNet should remain open to the expressed concern that FirstNet’s The Act in 47 U.S.C. 1432(a) specifies
concept of a local ‘‘back-up’’ core proposed definition, as formulated, that FirstNet ‘‘shall not offer, provide, or
network, particularly for States or could be misconstrued and sought to market commercial telecommunications
localities with a high population clarify that ‘‘secondary user’’ captures or information services directly to
consumers.’’ The Act does not define
16 See 47 U.S.C. 1422, 1426. 18 See 47 U.S.C. 1426(b)(2), (c)(2)(A).
17 47 U.S.C. 1442(f). 19 47 U.S.C. 1428(a)(2). 20 47 U.S.C. 1428(a).
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the word ‘‘consumer’’ or indicate the needs of public safety and believes System, namely ‘‘promoting
whether the word is limited to that the 20 MHz of available spectrum competition, and conducting business
individuals or includes organizations along with the expected priority/ with integrity, fairness and openness.’’
and businesses. In addition, under the preemption capabilities of the network The policies and procedures of the FAR
rule of construction specified in 47 will allow secondary users to access the embody these principles. Adherence to
U.S.C. 1432(b), nothing in 47 U.S.C. NPSBN without negatively impacting the FAR, therefore, ensures compliance
1432(a) is intended to prohibit FirstNet public safety’s use of the NPSBN. with the Act’s mandate to issue ‘‘open,
from entering into covered leasing transparent, and competitive’’ RFPs.
C. Requests for Proposals
agreements with secondary users or to With respect to existing infrastructure,
limit FirstNet from collecting lease fees 1. Requests for Proposals Process FirstNet plans to leverage such assets for
for the use of network equipment and The Act in 47 U.S.C. 1426(b)(1)(B) the NPSBN to the extent it is
infrastructure. FirstNet makes the requires FirstNet to issue ‘‘open, economically desirable, as required by
following conclusions with respect to transparent, and competitive’’ RFPs. the Act (see below for a further
these provisions of the Act: The procedural requirements for issuing discussion regarding existing
(1) The definition of ‘‘consumers’’ as such RFPs to meet the ‘‘open, infrastructure).
used in 47 U.S.C. 1432 does not include: transparent, and competitive’’ standard, Comment #12: One commenter
a. Any public safety entity as defined disagreed with FirstNet’s proposed
however, are not defined in the Act. The
in the Act; interpretation, observing that the
b. States when seeking access to or Federal Acquisition Regulation
(‘‘FAR’’), codified in 48 CFR parts 1–99, guidance in 47 U.S.C. 1426(b)(1)(B)
use of the core network, equipment, or would be unnecessary if Congress
infrastructure; or is the primary regulation used by federal
executive agencies in their acquisition intended FirstNet to comply with the
c. entities when seeking access to or FAR, and that there is not a single
use of equipment and infrastructure. of supplies and services with
appropriated funds. Thus, FirstNet reference to the FAR in the Act, despite
(2) The language of the Act under 47 the extensive statutory guidance the Act
U.S.C. 1432 prohibiting FirstNet from makes the following conclusion with
respect to its compliance with this provides to FirstNet concerning the RFP
directly serving ‘‘consumers’’ does not process.
limit potential types of public safety provision:
FirstNet, to the extent it utilizes the Response: FirstNet acknowledges this
entities that may use or access the comment and notes that its final
NPSBN for commercial FAR, concludes that complying with the
FAR satisfies the open, transparent, and conclusion is not that FirstNet believes
telecommunications or information it is required to use the FAR. Rather,
services. competitive requirements of 47 U.S.C.
1426(b)(1)(B). FirstNet’s interpretation merely is that
(3) The Act under 47 U.S.C. 1432 does by complying with the FAR, FirstNet is
not prohibit or act as a limit on Analysis of and Responses to Comments complying with this provision of the
secondary users with which FirstNet on Requests for Proposals Act.
may enter into a covered leasing
agreement. Summary: The overwhelming 2. Minimum Technical Requirements
(4) The Act under 47 U.S.C. 1432 does majority of commenters agreed with
FirstNet’s proposed interpretation that 47 U.S.C. 1426(b)(1)(B) requires
not limit the pool of secondary users FirstNet to issue RFPs for the purposes
that may gain access to or use of the using the FAR satisfies FirstNet’s
statutory obligation to issue ‘‘open, of building, operating, and maintaining
network on a secondary basis. the network that use, without materially
transparent, and competitive requests
Analysis of and Responses to Comments for proposals to private sector entities changing, the minimum technical
on Prohibition on Providing for the purposes of building, operating, requirements developed by the
Commercial Services to Consumers and maintaining the network . . . ’’ In Interoperability Board. 47 U.S.C.
addition to commenting that 1422(b) and 47 U.S.C. 1426(c)(4) further
Summary: The vast majority of
compliance with the FAR is a obligate FirstNet to accommodate
commenters supported FirstNet’s
reasonable way of meeting the Act’s advancements in technology.21 With
conclusions that the prohibition in 47
U.S.C. 1432 on FirstNet offering, requirements for an ‘‘open, transparent, respect to these provisions, FirstNet
providing, or marketing commercial and competitive’’ RFP process, makes the following final interpretation:
telecommunications or information commenters noted that the FAR is a FirstNet concludes that it may make
services to consumers does not apply to well understood process, and that by non-material changes or additions/
public safety entities, secondary users, using it, FirstNet will save time by not subtractions to the minimal technical
States seeking access to or use of the having to develop a new process for requirements developed by the
FirstNet core network, or entities or issuing RFPs. Given the size and scope 21 Note that the Interoperability Board Report
States seeking access to or use of of FirstNet’s task, commenters agreed states that ‘‘[g]iven that technology evolves rapidly,
network equipment and infrastructure. that using the FAR was the most logical the network components and associated interfaces
These commenters agreed that the intent option. Some commenters agreed with identified in the [Interoperability Board Report]
of this provision, whether explicit or using the FAR generally, but encouraged . . . are also expected to evolve over time. As such,
these aspects of the present document are intended
implicit, is to exclude these entities the use of only certain sections. to represent a state-of-the-art snapshot at the time
from the definition of consumer. Comment #11: Some commenters of writing. In this context, the standards, functions,
Comment #10: One commenter, while suggested that FirstNet exceed the and interfaces referenced in the present document
are intended to prescribe statements of intent.
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not disagreeing with FirstNet’s FAR’s requirements and reminded
Variations or substitutions are expected to
conclusions, expressed concern FirstNet of its authority to make accommodate technological evolution consistent
regarding the potential for network agreements with States to use existing with the evolution of 3GPP and other applicable
capacity to become saturated from non- infrastructure. standards.’’ Interoperability Board, Recommended
public safety use. Response: FirstNet believes that using Minimum Technical Requirements to Ensure
Nationwide Interoperability for the Nationwide
Response: As noted above, FirstNet is the FAR satisfies the Act’s requirements. Public Safety Broadband Network at 27 (May 22,
committed to ensuring the FAR Part 1.102 provides guiding 2012), available at http://apps.fcc.gov/ecfs/
establishment of a network that meets principles of the Federal Acquisition document/view?id=7021919873.
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Interoperability Board, including as developed by 3GPP and that comply Accordingly, FirstNet makes the
necessary to accommodate with the Interoperability Board Report. following final interpretation regarding
advancements in technology as required Comment #15: A few commenters the definition of ‘‘rural’’ under the Act:
by the Act. suggested that FirstNet rely on the (1) FirstNet defines ‘‘rural,’’ for the
Interoperability Board or a similar purposes of the Act, as having the same
Analysis of and Responses to Comments
independent technical advisory board meaning as ‘‘rural area’’ in Section
on Minimum Technical Requirements
going forward to establish and maintain 601(b)(3) of the Rural Electrification Act
Summary: Commenters were virtually ongoing minimum technical of 1936, as amended (‘‘Rural
unanimous in agreeing with FirstNet’s requirements and compliance with Electrification Act’’ or ‘‘REA’’). Section
proposed interpretation regarding those requirements, in light of 601(b)(3) of the Rural Electrification Act
changes to the minimum technical technological advances. provides that ‘‘[t]he term ‘rural area’
requirements established by the Response: This comment is outside means any area other than—(i) an area
Interoperability Board. Several the scope of this notice. However, described in clause (i) or (ii) of Section
commenters reasoned that such changes FirstNet acknowledges this 1991(a)(13)(A) of this title [section
are necessary and fully contemplated recommendation and will consider it as 343(a)(13)(A) of the Consolidated Farm
(by Congress and the Interoperability any applicable decisions are developed and Rural Development Act]; and (ii) a
Board itself) in order to keep pace with on the matter. city, town, or incorporated area that has
evolutions in technology, address issues Comment #16: Some commenters a population of greater than 20,000
that the Interoperability Board may not offered input as to what delineates non- inhabitants.’’ In turn, the relevant
have considered, and fulfill material versus material changes in the portion of Section 343(a)(13)(A) of the
requirements under the Act. minimum technical requirements. Most Consolidated Farm and Rural
Comment #13: One commenter commenters focused on critical features Development Act explains that the
maintained that the minimum technical or functions being backwards ‘‘terms ‘rural’ and ‘rural area’ mean any
requirements developed by the compatible, as well as avoiding any area other than—(i) a city or town that
Interoperability Board are so reduction in the quality of mission has a population of greater than 50,000
fundamental that they should be critical service to end users. inhabitants; and (ii) any urbanized area
utilized in their entirety regardless of Response: FirstNet acknowledges contiguous and adjacent to a city or
advancements in technology. these recommendations and will
Response: FirstNet fully appreciates town described in clause (i).’’ Thus, as
consider them as any applicable defined herein, the term ‘‘rural’’ means
the value of the minimum technical decisions are developed on the matter.
requirements developed by the any area that is not:
FirstNet’s goal is to ensure that the • A city, town, or incorporated area
Interoperability Board and the critical NPSBN operates in a manner that
role such requirements will have in the that has a population of greater than
satisfies public safety’s critical 20,000 inhabitants
development and maintenance of the communication needs and is consistent
NPSBN. However, at the same time, • any urbanized area contiguous and
with the material terms of the adjacent to a city or town that has a
FirstNet seeks to ensure that the most Interoperability Board report.
robust and technologically advanced population of greater than 50,000
network as possible is established for 3. Final Definition of ‘‘Rural’’ inhabitants.
public safety in accordance with its The Act directs that FirstNet ‘‘shall FirstNet also inquired whether there
statutory mission, and FirstNet is require deployment phases with should be a lower boundary separate
specifically directed by the Act to substantial rural coverage milestones as from the definition of ‘‘rural,’’ such as
consider advancements in technology in part of each phase of the construction ‘‘wilderness’’ or ‘‘frontier.’’ Based in
the development and maintenance of and deployment of the network . . . part on the comments received, FirstNet
the NPSBN.22 Accordingly, FirstNet [and] utilize cost-effective opportunities has reached the following final
intends to operate with those principles to speed deployment in rural areas.’’ 23 conclusion:
and directives in mind in forming the Additionally, the Act states, in relevant (2) FirstNet concludes that a lower
technical requirements for the network. part, that FirstNet ‘‘shall develop . . . boundary (e.g., ‘‘wilderness,’’ ‘‘frontier’’)
Comment #14: Multiple commenters requests for proposals with appropriate is not necessary to satisfy its rural
urged FirstNet to use open standards in . . . timetables for construction, coverage requirements under the Act,
the implementation of advancements in including by taking into consideration and thus FirstNet does not intend to
technology, focusing on 3GPP the time needed to build out to rural establish any such boundary.
architecture and interfaces that ensure areas.’’ 24 Finally, the Act explains that
operability, interoperability, and FirstNet ‘‘shall develop . . . requests for Relief and Job Creation Act of 2012 et al., PS Docket
backwards compatibility. Some of these 12–94 et al., Notice of Proposed Rulemaking, 28
proposals with appropriate . . . FCC Rcd 2715, 2728–29 ¶ 46 (2013) (Band 14
commenters pointed out that the coverage areas, including coverage in NPRM) (noting that, ‘‘We do not believe the
Interoperability Board Report rural and nonurban areas.’’ 25 Commission should specify rural milestones as a
contemplates advancements in Since the Act does not define ‘‘rural,’’ condition of FirstNet’s license at this time. Rather,
technology and supports the open we recognize that at this early stage, the success of
we found it necessary to define this FirstNet requires flexibility with respect to
standards process. term in order to fulfill our duties with deployment and planning, including deployment in
Response: This comment is outside respect to the above noted statutory rural areas. Moreover, FirstNet has an independent
the scope of this notice. However, rural coverage requirements.26 legal obligation under the Act to develop requests
for proposals with appropriate timetables for
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FirstNet acknowledges this
construction, taking into account the time needed
recommendation and will consider it as 23 47 U.S.C. 1426(b)(3) (emphasis added). to build out in rural areas, and coverage areas,
any applicable decisions are developed 24 47 U.S.C. 1426(c)(1)(A)(i) (emphasis added). including coverage in rural and nonurban areas. In
25 47 U.S.C. 1426(c)(1)(A)(ii) (emphasis added).
on the matter. We note that the Act addition, in light of the Congressional oversight that
26 We appreciate the position the FCC has taken will be exercised over FirstNet and its other
requires that the NPSBN be based on
in this regard, and we are committed to fulfill our transparency, reporting and consultation
commercial standards, including those duties in a way that will meet these rural coverage obligations, we do not believe it is necessary for the
requirements. See Implementing Public Safety Commission to set specific benchmarks in this
22 See 47 U.S.C. 1422(b), 1426(c)(4). Broadband Provisions of the Middle Class Tax regard in these rules.’’).
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4. Existing Infrastructure g. any use restrictions (e.g., D. Fees
prohibitions/limitations on commercial FirstNet is required by the Act to be
Multiple provisions of the Act direct
use) a self-funding entity and has been
FirstNet to leverage existing
infrastructure when ‘‘economically h. relationships with infrastructure authorized to assess and collect certain
desirable.’’ 30 47 U.S.C. 1426(b)(1)(C) owners/managers (e.g., ease/difficulty in fees for use of the network.31
requires FirstNet in issuing RFPs to working with owners/managers) Specifically, FirstNet has been
‘‘encourag[e] that such requests i. available alternatives in the area authorized to assess and collect a (1)
leverage, to the maximum extent network user fee; (2) lease fee related to
economically desirable, existing Analysis of and Responses to Comments network capacity (also known as
commercial wireless infrastructure to on Leveraging Existing Infrastructure covered leasing agreement); (3) lease
speed deployment of the network.’’ and Economic Desirability fees related to network equipment and
Similarly, 47 U.S.C. 1426(b)(3)—in infrastructure; and (4) a fee for State use
Summary: All commenters on the
addressing rural coverage and referring of elements of the core network.32 In
subject agreed with FirstNet’s above
to FirstNet’s duty and responsibility to accordance with these provisions,
interpretations of 47 U.S.C.
issue RFPs—requires that ‘‘[t]o the FirstNet makes the following
1426(b)(1)(C) and (b)(3) that the
maximum extent economically conclusions related to both the
provisions are intended to require
desirable, such proposals shall include assessment and collection of fees
FirstNet to encourage, through its RFPs,
partnerships with existing commercial authorized under the Act.
that such responsive proposals leverage
mobile providers to utilize cost-effective existing infrastructure and partnerships General
opportunities to speed deployments in where economically desirable. Many of
rural areas.’’ (1) FirstNet interprets each of the fees
these commenters emphasized the
Finally, 47 U.S.C. 1426(c)(3) requires authorized by the Act, including user or
importance of utilizing the RFP process
that in carrying out its various subscription fees authorized by 47
to leverage existing assets and
requirements related to the deployment U.S.C. 1428(a)(1), covered leasing
partnerships to lower costs and increase
and operation of the NPSBN, ‘‘the First agreement fees authorized by 47 U.S.C.
speed to market.
Responder Network Authority shall 1428 (a)(2), lease fees related to network
enter into agreements to utilize, to the Comment #23: Some commenters equipment and infrastructure
maximum extent economically provided input regarding the factors to authorized by 47 U.S.C. 1428(a)(3), and
desirable, existing (A) commercial or be considered in making an economic the fee for State use of elements of the
other communications infrastructure; desirability determination, focusing core network authorized by 47 U.S.C.
and (B) Federal, State, tribal, or local largely on cost. 1442(f), as distinct and separate from
infrastructure.’’ The Act, however, does Response: Although FirstNet agrees each other and may be assessed
not define or establish any criteria for that cost is a major factor in assessing individually or cumulatively, as
determining economic desirability. economic desirability, we do not believe applicable.
FirstNet reaches the following it is the sole consideration. There are Network User Fees
conclusions regarding its obligations to several other factors, as noted above,
leverage existing infrastructure under 47 that are critical to making an informed (2) FirstNet concludes it may charge
U.S.C. 1426: determination as to whether the a user or subscription fee under 47
1. FirstNet interprets that 47 U.S.C. infrastructure should be leveraged. For U.S.C. 1428(a)(1) to any user that seeks
1426(b)(1)(B) is intended to require instance, it is essential to understand access to or use of the nationwide
FirstNet to encourage, through its the infrastructure’s suitability for public safety broadband network.
requests, that responsive proposals FirstNet’s purposes, as well as its State Core Network User Fees
leverage existing infrastructure in availability and readiness for use.
accordance with the provision. Likewise, FirstNet’s financial (3) FirstNet concludes that the fees
sustainability model is based in large assessed on States assuming RAN
2. FirstNet interprets 47 U.S.C.
part on its ability to lease excess responsibilities for use of the core
1426(b)(3) as requiring FirstNet to
spectrum capacity to commercial network authorized by 47 U.S.C. 1442(f)
include in its RFPs that such proposals
entities for secondary use, and thus are distinct from and can be assessed in
leverage partnerships with commercial
consideration of any limitations on addition to any other fees authorized
mobile providers where economically
commercial use of the infrastructure is under the Act.
desirable.
3. FirstNet concludes that factors imperative. Lease Fees Related to Network Capacity
other than, or in addition to, cost may Comment #24: A couple of and Covered Leasing Agreements
be utilized in assessing whether existing commenters suggested other factors (4) FirstNet concludes that a covered
infrastructure is ‘‘economically besides cost in making an economic leasing agreement under 47 U.S.C.
desirable,’’ including: desirability determination of whether to 1428(a)(2) does not require a secondary
a. Infrastructure type/characteristics leverage infrastructure. One such user to ‘‘construct, manage, and
b. security (physical, network, cyber, commenter recommended the operate’’ the entire FirstNet network,
etc.) consideration of geography and breadth either from a coverage perspective or
c. suitability/viability (ability to of coverage in addition to cost. Another exclusively within a specific location.
readily use, upgrade, and maintain) commenter urged that the requirements
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(5) FirstNet concludes that multiple
d. readiness for reuse (e.g., already in of public safety should be considered as covered leasing agreement lessees could
use for wireless communications) a factor. coexist and be permitted access to
e. scope of use (e.g., range of coverage) Response: FirstNet acknowledges excess network capacity in a particular
f. availability/accessibility (time/ these recommendations and believes geographic area.
obstacles to acquiring access/use) they are encompassed within FirstNet’s
final conclusion above regarding 31 See 47 U.S.C. 1428, 1442(f); 1426(b)(4)(C).
30 See 47 U.S.C. 1426(b)(1)(C), (b)(3), (c)(3). economic desirability factors. 32 47 U.S.C. 1428, 1442(f).
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(6) FirstNet interprets that a covered equipment, or does not own but, including, as appropriate, a State
leasing agreement lessee satisfies the through a contract has rights to sublease assuming responsibilities for radio
definition under 47 U.S.C. 1428(a)(2) so access to, or use of, such equipment or access network deployment.
long as the lessee does more than a infrastructure. Comment #26: One commenter
nominal amount of constructing, suggested that all public safety user fees
Analysis of and Responses to Comments should include nationwide coverage,
managing, or operating the network.
(7) FirstNet concludes that an entity on Fees and should be for unlimited use of the
entering into a covered leasing Summary: The majority of NPSBN. For example, a flat fee for
agreement under 47 U.S.C. 1428(a)(2) is commenters agreed with the various unlimited usage (and no roaming fees)
not required to perform all three interpretations related to the assessment should be charged within each State,
functions of constructing, managing, and collection of fees by FirstNet. The similar to today’s carrier billing model.
and operating a portion of the network, commenters generally understood the Response: This comment is outside
so long as one of the three is performed authority the Act gives FirstNet to assess the scope of this notice. However,
as part of the covered leasing agreement. and collect fees and the importance of FirstNet acknowledges the comment
(8) FirstNet interprets the reference to such fees as a key funding resource and will consider the recommendation
‘‘network capacity’’ in the definition of necessary to build, operate, and as it continues planning for the
covered leasing agreement under 47 maintain the NPSBN. However, a few deployment of the NPSBN.
U.S.C. 1428(a)(2)(B)(i) as a generic commenters, as described and Comment #27: One commenter
statement referring to the combination responded to below, either disagreed suggested that while the Act is
of spectrum and network elements, as with certain interpretations or provided unambiguous on allowing FirstNet to
defined by the Act, and includes the general comments relating to the assess a fee to States assuming RAN
core network as well as the radio access assessment and collection of the various responsibilities for use of the core
network of either FirstNet alone or that fees under the Act. network, it is important that this fee not
of the secondary user under a covered Comment #25: Two commenters be set so high so as to discourage States
leasing agreement whereby the core and agreed that FirstNet is authorized to from opting out of the NPSBN. The
radio access network are used for assess a fee for use of the core network, commenter further noted that the ability
serving both FirstNet public safety but suggested that States assuming RAN of States to construct their own RAN is
entities and the secondary user’s deployment responsibilities should only clearly permissive under the Act and, in
commercial customers. pay the costs associated with using the fact, could enable significant growth
(9) FirstNet interprets the term core network and spectrum lease; they and adoption of the NPSBN as long as
‘‘secondary basis’’ under 47 U.S.C. should not have to pay a network user the user fees for opt-out states are
1428(a)(2)(B)(i) to mean that network or subscription fee, and that FirstNet is reasonable and contemplate the budgets
capacity will be available to the not allowed to, or should not, impose of State and local public safety entities.
secondary user unless it is needed for ‘user’ fees on opt-out States in a Response: This comment is outside
public safety entities as defined in the cumulative manner as interpreted by the scope of this notice. However,
Act. FirstNet. FirstNet acknowledges the comment
(10) FirstNet interprets the phrase Response: FirstNet disagrees and and will consider the recommendation
‘‘spectrum allocated to such entity’’ believes the Act authorizes FirstNet to as it continues planning for the
found in 47 U.S.C. 1428(a)(3)(B)(ii) as assess a user or subscription fee to each deployment of the NPSBN.
allowing all or a portion of the spectrum entity, including a State choosing to Comment #28: Two commenters
licensed to FirstNet by the FCC under deploy its own radio access network, disagreed that ‘‘all’’ of the FirstNet Band
call sign ‘‘WQQE234’’ to be allocated for that seeks access to or use of the 14 spectrum can be allocated for
use on a secondary basis under a network. Specifically, the Act secondary use under a covered leasing
covered leasing agreement. authorizes FirstNet to collect a ‘‘user or agreement.
(11) FirstNet concludes the reference subscription fee from each entity, Response: FirstNet believes its
to ‘‘dark fiber’’ in 47 U.S.C. including any public safety entity or interpretation that the Act allows all or
1428(a)(2)(B)(ii) cannot literally be secondary user, that seeks access to or part of the spectrum licensed to FirstNet
interpreted as such, and the reference use of the [NPSBN].’’ 33 Consequently, a by the FCC under call sign ‘‘WQQE234’’
should be interpreted to allow the plain reading of this provision does not to be allocated for secondary use is
covered leasing agreement lessee to appear to provide any exclusionary supported by language of the Act.
transport such traffic on otherwise language that would limit which entities FirstNet is the entity created by the Act
previously dark fiber facilities. may be charged a fee for access to or use to ensure the establishment of the
of the network. Rather, as discussed in NPSBN, and as such has a duty to
Network Equipment and Infrastructure the First Notice, the use of the term ensure the efficient use of the funding
Fee ‘‘including’’ rather than ‘‘consisting’’ resources available to fulfill this duty,
(12) FirstNet interprets 47 U.S.C. when describing the scope of entities including the ability to permit access to
1428(a)(3) as being limited to the that may be charged a network user fee spectrum capacity on a secondary basis.
imposition of a fee for the use of static indicates that this group is not limited To best utilize these funding resources,
or isolated equipment or infrastructure, to only public safety entities or the Act authorizes FirstNet to enter into
such as antennas or towers, rather than secondary users, but would include covered leasing agreements which
for use of FirstNet spectrum or access to other entities such as a State. Thus, permit an entity entering into such an
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network capacity. FirstNet believes the plain language of agreement to have access to, or use of,
(13) FirstNet interprets the phrase the Act supports the conclusion that network capacity on a secondary basis
‘‘constructed or otherwise owned by FirstNet may charge a user or for non-public safety services. The Act,
[FirstNet]’’ under 47 U.S.C. 1428(a)(3) as subscription fee to any eligible user who as analyzed in the First Notice, does not
meaning that FirstNet ordered or seeks access to or use of the nationwide provide any cap or limitation on how
required the construction of such public safety broadband network, much of the network capacity may be
equipment or infrastructure, paid for allocated on a secondary basis. Thus,
such construction, simply owns such 33 47 U.S.C. 1428(a)(1) (emphasis added). FirstNet believes the Act provides it
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flexibility to determine how best to Dated: October 15, 2015. Dated: October 14, 2015.
utilize network capacity as a funding Jason Karp, Andrew McGilvray,
resource to ensure both the Chief Counsel (Acting), First Responder Executive Secretary.
establishment and self-sustainability of Network Authority. [FR Doc. 2015–26632 Filed 10–19–15; 8:45 am]
the network. Despite this flexibility, [FR Doc. 2015–26621 Filed 10–19–15; 8:45 am] BILLING CODE 3510–DS–P
however, it is important to note that BILLING CODE 3510–TL–P
public safety entities will always have
priority use of the NPSBN over any non- DEPARTMENT OF COMMERCE
public safety user that gains access to, DEPARTMENT OF COMMERCE
or use of, the network on a secondary Foreign-Trade Zones Board
basis. Foreign-Trade Zones Board
Comment #29: One commenter [B–67–2015]
[S–134–2015]
suggested that the States should
determine how much capacity/spectrum Foreign-Trade Zone (FTZ) 183—Austin,
Foreign-Trade Zone 142—Salem/
is made available within its borders Texas; Notification of Proposed
Millville, New Jersey; Application for
under a covered leasing agreement— Production Activity; Flextronics
Subzone; Nine West Holdings, Inc.;
rather than FirstNet making the America, LLC (Automatic Data
West Deptford, New Jersey
determination. Processing Machines); Austin, Texas
Response: FirstNet is the entity An application has been submitted to
the Foreign-Trade Zones (FTZ) Board by Flextronics America, LLC
created by the Act to ensure the
the South Jersey Port Corporation, (Flextronics) submitted a notification of
establishment of the NPSBN and is also
grantee of FTZ 142, requesting subzone proposed production activity to the FTZ
the sole licensee of the 700 MHz D block
spectrum and the existing public safety status for the facilities of Nine West Board for its facility in Austin, Texas
broadband spectrum.34 Thus, FirstNet is Holdings, Inc., located in West within Subzone 183C. The notification
the sole entity responsible for Deptford, New Jersey. The application conforming to the requirements of the
determining how to allocate the was submitted pursuant to the regulations of the FTZ Board (15 CFR
spectrum under a covered leasing provisions of the Foreign-Trade Zones 400.22) was received on October 9,
agreement. Act, as amended (19 U.S.C. 81a–81u), 2015.
Comment #30: One commenter and the regulations of the FTZ Board (15 Flextronics already has authority to
cautioned FirstNet to ensure there is not CFR part 400). It was formally docketed produce automatic data processing
an undue expectation by the covered on October 14, 2015. machines within Subzone 183C. The
leasing agreement lessee that its lease of The proposed subzone would consist current request would add finished
the spectrum supersedes public safety’s of the following sites: Site 1 (27.18 products and foreign status materials/
access to, and use of, that spectrum as acres) 1245 Forest Parkway West, West components to the scope of authority.
a priority in all cases, and at all times. Deptford; and, Site 2 (33.28 acres) 1250 Pursuant to 15 CFR 400.14(b),
Response: FirstNet acknowledges the Parkway West, West Deptford. The additional FTZ authority would be
comment and reiterates that its primary proposed subzone would be subject to limited to the specific foreign-status
mission is to ensure the establishment the existing activation limit of FTZ 142. materials/components and specific
of a nationwide, interoperable network No authorization for production activity finished products described in the
for public safety. Accordingly, public has been requested at this time. submitted notification (as described
safety will always have priority use of In accordance with the FTZ Board’s below) and subsequently authorized by
the NPSBN over any non-public safety regulations, Kathleen Boyce of the FTZ the FTZ Board.
user that gains access to, or use of, the Staff is designated examiner to review Production under FTZ procedures
network on a secondary basis through a the application and make could exempt Flextronics from customs
covered leasing agreement. recommendations to the Executive duty payments on the foreign status
Comment #31: One commenter Secretary. materials/components used in export
recommended that FirstNet interpret 47 Public comment is invited from production. On its domestic sales,
U.S.C. § 1428(a)(3) to only apply to the interested parties. Submissions shall be Flextronics would be able to choose the
RAN hardware in States that choose to addressed to the FTZ Board’s Executive duty rates during customs entry
participate in the NPSBN as proposed Secretary at the address below. The procedures that apply to: Video card
by FirstNet. closing period for their receipt is subassemblies; CPU and video card
Response: FirstNet interprets the November 30, 2015. Rebuttal comments connector subassemblies; external
phrase ‘‘constructed or otherwise owned in response to material submitted power and USB port card
by [FirstNet]’’ under 47 U.S.C. during the foregoing period may be subassemblies; main controller board
1428(a)(3) as meaning that FirstNet submitted during the subsequent 15-day subassemblies; and, internal power
ordered or required the construction of period to December 14, 2015. supply subassemblies (duty-free) for the
such equipment or infrastructure, paid A copy of the application will be foreign status materials/components
for the construction, owns the available for public inspection at the noted below and in the existing scope
equipment, or does not own the Office of the Executive Secretary, of authority. Customs duties also could
equipment, but, through a contract, has Foreign-Trade Zones Board, Room possibly be deferred or reduced on
the right to sublease the equipment or 21013, U.S. Department of Commerce, foreign status production equipment.
mstockstill on DSK4VPTVN1PROD with NOTICES
infrastructure. Thus, unless the RAN 1401 Constitution Avenue NW., The materials/components sourced
hardware in any State falls within the Washington, DC 20230–0002, and in the from abroad include: Copper alloy
criteria above, FirstNet would not have ‘‘Reading Room’’ section of the FTZ screws; and, lithium batteries (duty rate
the authority to assess and collect a fee Board’s Web site, which is accessible ranges from 3.0 to 3.4%).
for use of such infrastructure or via www.trade.gov/ftz. Public comment is invited from
equipment. For further information, contact interested parties. Submissions shall be
Kathleen Boyce at Kathleen.Boyce@ addressed to the Board’s Executive
34 47 U.S.C. 1421, 1422. trade.gov or (202) 482–1346. Secretary at the address below. The
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Document Created: 2015-12-14 15:25:12
Document Modified: 2015-12-14 15:25:12
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Notices | |
| Action | Notice; final interpretations. | |
| Dates | Effective October 20, 2015. | |
| Contact | Eli Veenendaal, First Responder Network Authority, National Telecommunications and Information Administration, U.S. Department of Commerce, 12201 Sunrise Valley Drive, M/S 243, Reston, VA 20192; 703-648-4167; or [email protected] | |
| FR Citation | 80 FR 63523 | |
| RIN Number | 0660-XC01 |
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