June 1, 2017 
 
FCC FACT SHEET* 
FirstNet Opt-out Procedures 
Report and Order - PS Docket No. 16-269 
 
Background:   
The Middle Class Tax Relief and Job Creation Act of 2012 created the First Responder Network Authority 
(FirstNet) within the National Telecommunications and Information Administration (NTIA) to build and operate a 
nationwide broadband network for use by public safety officials.  FirstNet holds a spectrum license in the 700 
MHz band and is charged with constructing, deploying, and operating the nationwide network, which will consist 
of a network core and a radio access network (RAN) that connects with the core to enable wireless 
communications.   
The statute requires FirstNet to develop a national plan to deploy the RAN within each state, but also gives each 
state the right to “opt out” and build its own RAN, provided the state’s RAN will be fully interoperable with the 
FirstNet network.  The statute requires any state that chooses to opt out to submit an alternative plan for its 
proposed state RAN to the FCC.  To obtain FCC approval, the state must demonstrate that its plan meets the 
interoperability requirements of the statute.  If the FCC approves the plan, the state must then apply to NTIA for a 
spectrum lease and, if it chooses, for grant funding.  If the FCC disapproves the plan, the state must accept 
FirstNet’s plan, but may appeal to the U.S. District Court for the District of Columbia. 
What the Report and Order Would Do: 
? Establish the procedural timeline for states to notify the FCC, FirstNet, and NTIA of their opt-out 
elections and to file their alternative state plans with the FCC. 
? Identify information states should include in their alternative state plans to demonstrate compliance with 
the statutory criteria for interoperability with FirstNet’s network.  
? Specify the technical criteria and standards that the FCC will use in evaluating alternative state plans.  
? Provide the details of the FCC’s review process, including participation by interested parties, treatment of 
confidential information, and the timing of FCC action.    
? Describe how the FCC will document its decisions to approve or disapprove alternative state plans.   
                                                            
* This document is being released as part of a "permit-but-disclose" proceeding. Any presentations or views on the subject 
expressed to the Commission or its staff, including by email, must be filed in PS Docket No. 16-269, which may be accessed 
via the Electronic Comment Filing System (https://www.fcc.gov/ecfs/). Before filing, participants should familiarize 
themselves with the Commission’s ex parte rules, including the general prohibition on presentations (written and oral) on 
matters listed on the Sunshine Agenda, which is typically released a week prior to the Commission’s meeting. See 47 CFR § 
1.1200 et seq. 
 Federal Communications Commission FCC-CIRC1706-02    
Before the 
Federal Communications Commission 
Washington, D.C. 20554 
 
 
In the Matter of 
 
Procedures for Commission Review of State Opt-
Out Requests from the FirstNet Radio Access 
Network 
) 
) 
) 
) 
)  
 
 
PS Docket 16-269 
 
REPORT AND ORDER*  
 
Adopted:  [] Released:  []  
 
By the Commission: 
TABLE OF CONTENTS 
Heading Paragraph # 
I.  INTRODUCTION AND BACKGROUND ........................................................................................... 1 
II.  DISCUSSION ........................................................................................................................................ 7 
A.  Opt-Out Procedures ......................................................................................................................... 7 
1.  Notification Procedures ............................................................................................................. 8 
2.  Alternative Plan Submission ................................................................................................... 13 
3.  Alternative Plan Contents ........................................................................................................ 24 
4.  Confidentiality, Accessibility, and Amendments .................................................................... 29 
B.  Evaluation Process and Criteria ..................................................................................................... 39 
1.  Shot Clock ............................................................................................................................... 39 
2.  Scope of Review ...................................................................................................................... 43 
C.  Content and Review of State Plan Elements .................................................................................. 48 
1.  Interoperability Board Requirements ...................................................................................... 51 
2.  Interoperability with the NPSBN ............................................................................................ 55 
3.  Interoperability Certification ................................................................................................... 65 
4.  Documentation of the Commission Decision .......................................................................... 70 
III. PROCEDURAL MATTERS ................................................................................................................ 73 
A.  Regulatory Flexibility Analysis ..................................................................................................... 73 
B.  Paperwork Reduction Act .............................................................................................................. 74 
C.  Congressional Review Act ............................................................................................................. 75 
D.  Further Information ........................................................................................................................ 76 
IV. ORDERING CLAUSES ....................................................................................................................... 77 
                                                     
* This document has been circulated for tentative consideration by the Commission at its June open meeting. The 
issues referenced in this document and the Commission’s ultimate resolutions of those issues remain under 
consideration and subject to change. This document does not constitute any official action by the 
Commission.  However, the Chairman has determined that, in the interest of promoting the public’s ability to 
understand the nature and scope of issues under consideration, the public interest would be served by making this 
document publicly available. The Commission’s ex parte rules apply and presentations are subject to “permit-but-
disclose” ex parte rules. See, e.g. , 47 CFR §§ 1.1206, 1.1200(a). Participants in this proceeding should familiarize 
themselves with the Commission’s ex parte rules, including the general prohibition on presentations (written and 
oral) on matters listed on the Sunshine Agenda, which is typically released a week prior to the Commission’s 
meeting.  See 47 CFR §§ 1.1200(a), 1.1203. 
(continued….) 
 Federal Communications Commission FCC-CIRC1706-02    
2 
 
 
I.  INTRODUCTION AND BACKGROUND 
1. This Report and Order addresses the 758-769/788-799 MHz band, which the Commission 
licensed to the First Responder Network Authority (FirstNet) on a nationwide basis pursuant to the 
provisions of the Middle Class Tax Relief and Job Creation Act of 2012.1  The Report and Order adopts 
procedures for administering the state opt-out process as provided under the Public Safety Spectrum Act, 
as well delineating the specific standards by which the Commission will evaluate state opt-out 
applications.   
2. The Public Safety Spectrum Act provides for the deployment of a nationwide public safety 
broadband network (NPSBN) in the 700 MHz band.2  The Act established FirstNet as an independent 
authority within the National Telecommunications and Information Administration (NTIA)3 and required 
the Commission to grant a license to FirstNet for the 758-769/788-799 MHz band.4  The Act charges 
FirstNet with responsibility for establishing and overseeing “a nationwide, interoperable public safety 
broadband network”5 operated in this spectrum by taking “all actions necessary to ensure the building, 
deployment, and operation of the . . . network, in consultation with Federal, State, tribal, and local public 
safety entities, the Director of NIST, the Commission, and the public safety advisory committee [that 
section 6205 of the Act requires FirstNet to establish].”6   
3. Pursuant to Section 6202(b) of the Act, the NPSBN must be based on a “single national 
network architecture that evolves with technological advancements” that consists of a core network and a 
radio access network (RAN).7  FirstNet is tasked with developing a plan to deploy the RAN within each 
state.8  The RAN, as defined in Section 6202(b)(2)(A), “consists of all cell site equipment, antennas, and 
backhaul equipment, based on commercial standards, that are required to enable wireless communications 
with devices using the public safety broadband spectrum.”9  The Act gives each state the option to “opt 
out” of FirstNet’s RAN deployment within that state and conduct its own RAN deployment.10   
4. Specifically, the Act provides that “the Governor shall choose whether to participate in the 
deployment of the nationwide, interoperable broadband network as proposed by [FirstNet,] or conduct its 
own deployment of a radio access network in such State.”11  If a Governor chooses not to participate in 
the NPSBN, Section 6302(e)(3)(A) of the Act requires the Governor to “notify [FirstNet], the NTIA, and 
                                                     
1 See  Middle Class Tax Relief and Job Creation Act of 2012, Pub. L. No. 112-96, 126 Stat. 156 §§ 6001-6303, 6413 
(codified at 47 U.S.C. §§ 1401-1443, 1457) (“Public Safety Spectrum Act” or “Act”). 
2 See generally  Public Safety Spectrum Act § 6001 et. seq . 
3 Id .  § 6204(a).  
4 Id . §§ 6101(a), 6201(a), 6204(a).   
5 Id . § 6202(a).  See generally id.  § 6206 (setting out FirstNet’s powers, duties and responsibilities). 
6 Id . § 6206(b). 
7 Id .  § 6202(b). 
8 See id.  § 6302(e)(1).  The Definitions section of the Act provides that the term “State” has the meaning given such 
term in section 3 of the Communications Act of 1934 (47 U.S.C. § 153), i.e ., the term includes the District of 
Columbia and the Territories and possessions.  I d.  § 6001(31). 
9 Id . § 6202(b)(2)(A).  The Definitions section of the Act does not contain the definition for “radio access network” 
and instead refers to the reader to this section (“radio access network” means the radio access network described in 
section 6202(b)(2)”).  Id .  § 6001(29). 
10 Id .  § 6302(e)(2). 
11 Id .  § 6302(e)(2). 
(continued….) 
 Federal Communications Commission FCC-CIRC1706-02    
3 
 
the Commission of such decision.”12  The Act also states that an opt-out state “shall submit” to the 
Commission an “alternative plan” for “the construction, maintenance, operation, and improvements” of 
the RAN within the state.  Section 3(C)(ii) of the Act mandates that “upon submission of this plan, the 
Commission shall approve or disapprove of the plan.”13  The Act provides that if the Commission 
approves the plan the State “may apply to the NTIA for a grant to construct the radio access network 
within the State”14 and “shall apply to the NTIA to lease spectrum capacity from the First Responder 
Network Authority.”15  If the Commission disapproves the plan, the Act provides that “the construction, 
maintenance, operation, and improvements of the network within the State shall proceed in accordance 
with the plan proposed by the First Responder Network Authority.”16  The Act also allows for a State to 
seek judicial review of the Commission’s disapproval in the United States District Court for the District 
of Columbia.17  
5. The Act requires the Commission to “implement and enforce this title as if this title is a part 
of the Communications Act of 1934.”18  As such, the Commission issued a N otice of Proposed 
Rulemaking  seeking comment on the following aspects of the opt-out review process to be conducted by 
the Commission:   
? The procedures and timing for states to notify FirstNet, NTIA, and the Commission 
of their opt-out elections, completing their RFPs, and for filing their alternative state 
plans with the Commission; 
? The Commission review process, including timing, defining the scope of 
participation by interested parties, and treatment of confidential information;    
? What criteria that Commission will use in evaluating alternative state plans;  
? What elements states should include in their alternative state plans to demonstrate 
compliance with the relevant statutory criteria; and  
? How the Commission’s decisions to approve or disapprove alternative state plans will 
be documented.19  
6. Comments were filed on October 21, 2016, and reply comments were filed on November 21, 
2016.20  Eighteen parties filed comments and five parties filed reply comments.21 
                                                     
12 Id .  § 6302(e)(3)(A).  
13 Id . § 6302(e)(3)(C)(ii) (emphasis added).  
14 Id .  § 6302(e)(3)(C)(iii) (I). 
15 Id .  § 6302(e)(3)(C)(iii) (II). 
16 Id .  § 6302(e)(3)(C)(iv). 
17 Id .  § 6302(h). 
18 Id .  § 6003(a)(1). 
19 Procedures for Commis s io n Review of State Opt-Out Re quest from the FirstNet Radio Access Network et. al. , PS 
Docket 16-269, Report and Order and Notice of Proposed Rulemaking, 31 FCC Rcd 10253, 10269-77, paras. 46-73 
(2016) ( NPRM ). 
20 Pub lic Safety and Homeland Security Bureau Annou n ces Comment and Reply Comment Dates for Notice of 
Proposed Rulemaking on Procedures for Commis s io n Review of State Opt-Out Request from the FirstNet Radio 
Access Network , PS Docket 16-269, Public Notice, DA 16-1060 (PSHSB 2016). 
21 We attach a list of commenting parties as Appendix D. 
(continued….) 
 Federal Communications Commission FCC-CIRC1706-02    
4 
 
II.  DISCUSSION 
A.  Opt-Out Procedures 
7. The Act provides every Governor 90 days from the time FirstNet provides the state with its 
final state plan to decide whether to opt out of the NPSBN.22  The Act also states that an opt-out state has 
180 days after it provides its opt-out notice to “develop and complete requests for proposals for the 
construction, maintenance, and operation of the radio access network within the State.”23  
1 .  Notification Procedures 
8. NPRM.   In the N P R M , the Commission tentatively concluded that Congress did not intend to 
permit states to delay their notification to the Commission beyond the 90 days provided for states to 
determine whether or not to opt out.24  The Commission therefore proposed to require states electing to 
opt out of the NPSBN to file a notification with the Commission no later than 90 days after the date they 
receive electronic notice of the final state plan from FirstNet.25  The Commission also proposed to require 
that the state’s opt-out notice to the Commission contain a certification that the state has also notified 
FirstNet and NTIA of its opt-out decision.26  The Commission also sought comment on how states should 
provide notice to the Commission and who could file such notice.27 
9. C o m ments.   Commenting parties generally agree with the tentative conclusion that states 
should not be permitted to delay their notification to the Commission beyond the 90 days provided for 
states to determine whether or not to opt out.28  A few parties, however, contend that the 90-day clock 
should reset if FirstNet makes any changes to a state plan.29  Commenters also generally agree that a 
state’s opt-out notice to the Commission should include a certification that the state has also notified 
FirstNet and NTIA of its opt-out decision.30  Commenters split on whether only the Governor could 
provide the opt-out notice31 or whether a designee could provide the notice.32  Commenters support 
allowing states to provide notice via a dedicated email address.33  
10. On March 22, 2017, FirstNet stated in an ex parte filing that it intends to issue draft plans to 
                                                     
22 Public Safety Spectrum Act § 6302(e)(3)(A).  
23 Id . § 6302(e)(3)(B).  
24 NPRM , 31 FCC Rcd at 10269, para. 47. 
25 Id .  at 10270, para. 49. 
26 Id . 
27 Id . 
28 APCO Comments at 5, FirstNet Comments at 4-5, Illinois Comments at 5, Indiana Comments at 3; b ut see 
Stephen Whitaker Comments at 1 (“90 days is NOT an adequate time frame for any thorough review and 
assessment…”) 
29 Nevada Comments at 2, Pennsylvania Comments at 2, Fairfax Comments at 3-4. 
30 DVA Comments at 2. Indiana Comments at 3, NASCIO Comments at 2, TXPSBP Comments at 2. 
31 APCO Comments at 5, FirstNet Comments at 5, Illinois Comments at 5, Dr. Michael Myers Comments at 5. 
32 TXPSBP Comments at 2, Florida Comments at 2, FNCGB Reply Comments at 2, SouthernLinc Reply Comments 
at 6. 
33 Nevada Comments at 2, Pennsylvania Comments at 3, FNCGB Comments at 3, Fairfax Comments at 4; b ut see 
TXPSBP Comments at 2 (arguing a decision must be filed in the docket). 
(continued….) 
 Federal Communications Commission FCC-CIRC1706-02    
5 
 
the states by means of a dedicated web portal for each state.34  FirstNet will provide an opportunity for 
each state to provide feedback, after which it will use the same web portal mechanism to deliver the final 
plans to each state.35  FirstNet indicated that the delivery of these final plans would provide the statutory 
“notice” that would trigger the 90-day clock.36 
11. Decision .   Under Section 6302(e)(2) of the Act, a Governor has 90 days from the receipt of 
notice of the final state plan by FirstNet under Section 6302(e)(1) to “choose” whether to participate in 
the NPSBN or elect for the state to conduct its own RAN deployment.  Upon making the decision to opt 
out, the Governor “shall notify” FirstNet, NTIA, and the Commission.37  We agree with commenters that 
in establishing the 90-day period, Congress did not intend for a lapse in time between the state exercising 
its choice to opt out and providing notice of its decision which would artificially, and potentially 
indefinitely, delay the process.38  We further find, consistent with comments, that the 90-day period shall 
commence when a state has received statutory “notice” from FirstNet of the final plan for that state.  For 
these purposes, we direct FirstNet to immediately notify the Public Safety and Homeland Security Bureau 
(Bureau) when it provides such notice to a state, and we direct the Bureau to promptly issue a Public 
Notice announcing the commencement of the 90-day period and specifying the deadline for the relevant 
state or states to file opt-out notifications with FirstNet, NTIA, and the Commission.   
12. With respect to the process for states to submit opt-out notifications to the Commission, we 
require that either the Governor or the Governor’s duly authorized designee provide notification of the 
Governor’s decision.  While the statute clearly assigns sole responsibility to the Governor for the decision 
whether to opt in or opt out, we do not believe Congress intended for the Governor to be responsible for 
the purely ministerial act of transmitting notice of the decision to the Commission.  Moreover, we do not 
believe Congress intended to override the Governor’s ability to delegate assessment and evaluation of the 
state plan, so long as the Governor remains accountable for the ultimate decision.  As FNCGB notes, 
requiring the Governor to personally notify the Commission the decision serves no practical purpose, and 
allowing a designee to transmit the decision decreases the state’s administrative burden.39  We also 
require the opt-out notification to the Commission to include a certification that the state is providing 
simultaneous notice of its opt-out decision to both to NTIA and FirstNet in accordance with the statute.  
To facilitate the electronic filing of opt-out notifications, we will establish a dedicated e-mail address for 
this purpose, to be announced in connection with the Public Notice described below that will identify 
those states making an opt-out election.  The use of an e-mail address will enable notification filers to use 
delivery/read receipts to verify their filings. 
                                                     
34 Letter, dated March 22, 2017 from Patrick Donovan, First Responder Network Authority to Marlene H Dortch, 
Secretary, Federal Communications Commission and “State Plans and Governor’s Decision”, Power Point 
presentation (filed March 22, 2017 in PS Docket 16-269) (FirstNet March 22 Ex Parte ).   
35 Id .   
36 Id . 
37 Public Safety Spectrum Act, §6203(e)(2)-(3).  If the Governor elects to opt in, the statute does not require 
notification.  
38 There is no prohibition or penalty for filing an opt-out election prior to the 90-day deadline. 
39 FNCGB Reply Comment at 2; see also , SouthernLinc Comments at 6 (arguing that simply communicating the 
Governor’s decision via designee does not in any way mean that the Governor had not made the relevant decision or 
imitated the communication with the Commission). But see , FirstNet Comments at 5 (arguing that only Governor 
may provide opt-out notice); APCO Comments at 5 (asserting only the Governor may provide notice, which must be 
made directly to the Chairman of the Commission).   
(continued….) 
 Federal Communications Commission FCC-CIRC1706-02    
6 
 
2 .  Alternative Plan Submission 
13. NPRM.   In the N P R M , the Commission noted that Section 6302(e)(3)(B) of the Act states that 
once a state provides notice of its decision to opt out, that state has 180 days to “develop and complete” 
requests for proposals for the construction, maintenance, and operation of the radio access network within 
the State.  The Commission further noted that Section 6302(e)(3)(C) of the Act, which governs 
submission of state alternative plans, does not provide a deadline for the state to submit such plans to the 
Commission.40    
14. The Commission sought comment on how a state could demonstrate that it has developed and 
completed its RFP within 180 days.41  The Commission proposed that if an opt-out state fails to meet this 
requirement it forfeits its right to further consideration of its opt-out application by the Commission.42  
The Commission also proposed that, if a state notifies the Commission of its intention to opt out of the 
NPSBN, the electing state will have 180 days from the date it provides such notification to submit its 
alternative plan to the Commission, i .e ., it must submit the plan within the same timeframe applicable to 
completion of the state RFP.43 
15. C o m ments.   Commenting parties predominately fall into two camps: those contending that a 
state need only issue an RFP within 180 days to satisfy the statutory requirement,44 and those contending 
that a state must have awarded a contract within 180 days to satisfy the requirement.45  Parties arguing 
that the statute only requires issuance of an RFP within the 180-day period contend that a stricter reading 
would place opt-out states at a competitive disadvantage with FirstNet and would be practically 
impossible to accomplish.46  Parties supporting the stricter interpretation argue that it would be nearly 
impossible for the Commission to evaluate a plan if it does not have specific and contractually binding 
information relative to a state’s selected vendor.47  These parties also argue that states that fail to satisfy 
the requirement within 180 days should forfeit their rights to have the Commission consider their 
alternative plans.48  Illinois argues that this approach is the only viable option for ensuring that nationwide 
standards can be achieved within the prescribed time frame.49  DVA proposes an intermediate approach:  
that “[w]ithin the 180 days required by the Act, a state should have developed and released an RFP, 
received responses with firm commitments from a potential partner or partners and will have incorporated 
those response commitments into its alternative plan.”50 
16. With respect to submission timeframe for alternative plans, some support submission of 
alternative plans to the Commission within the same 180-day timeframe prescribed by the statute for 
                                                     
40 NPRM , 31 FCC Rcd at 10270, para. 50. 
41 Id .  at para. 51. 
42 Id . 
43 Id . at 10271, para. 52. 
44 Alabama Comments at 5-6; FNCGB Comments at 4-5; Florida Comments at 3. 
45 APCO Comments at 5; FirstNet Comments at 6; Illinois Comments at 6; Indiana Comments at 3-4. 
46 FNCGB Comments at 4-5; Florida Comments at 3. 
47 FirstNet Comments at 6. 
48 APCO Comments at 5; Illinois Comments at 6-7.  
49 Illinois Comments at 7. 
50 DVA Comments at 3; see also Florida Comments at 5 (arguing that States should be granted reasonable time 
extensions, on a case-by-case basis, when circumstances hinder the timely completion of the RFP). 
(continued….) 
 Federal Communications Commission FCC-CIRC1706-02    
7 
 
development and completion of the RFP, and proposed in the NPRM .51  Several, however, also note that 
the statute is silent as to the timeframe to submit an alternative plan to the Commission, implying that the 
Commission could uncouple the filing timeframe from the RFP completion timeframe.52 
17. Decision .   APCO has described the state’s opt-out process as a “false choice.”53  AT&T also 
characterizes the process as “exceptionally difficult and costly…by statutory design” which requires 
passage through a “daunting gauntlet of interoperability requirements.”54  While we acknowledge that the 
statutory process may be exacting, we also believe that Congress intended to establish a process that 
affords states a meaningful opportunity to “develop and complete requests for proposals,” as well as to 
prepare and file the required opt-out plan with the Commission.  States are entitled to make a deliberate, 
informed choice to opt-out of the network, so long as the statutory requirements are met. 
18. We find that whether an opt-out state has developed and completed an RFP within the 
meaning of Section 6302(e)(3)(B) is a threshold matter for determination before the Commission can 
consider its alternative plan under Section 6302(e)(3)(C).  Sequentially, the statute makes RFP 
completion a prerequisite to the state’s filing its alternative plan with the Commission, reflecting the 
practical reality that it would be an empty exercise for the Commission to consider the plan of a state that 
has failed to take this basic preliminary step.     
19. The statute is unclear as to how far states must have progressed in the RFP process to meet 
the 180-day “develop and complete” requirement.  As noted above, the parties’ comments advocate views 
on this question that range from the mere issuance of the RFP to the actual execution of the final terms of 
a contract with the winning bidder.  While the statute can reasonably be read to support a number of 
different points on this continuum, we believe that it is appropriate to require states to “develop and 
complete” RFPs within this time period by (1) issuing an RFP providing for full deployment of the state 
RAN ( i .e ., the RFP must cover the actual network build, not merely development of a plan) and (2) 
receiving firm commitment bids on the RFP; and (3) selecting a winning bidder.   Different bidders may 
respond to RFPs with different designs, and these differences may lead to amendments to the RFP or 
refinements in the final project or otherwise prove to be significant for the interoperability plan required 
to be submitted for Commission review.     
20. With respect to the timing of submission of state alternative plans, we conclude that states 
should have some additional time beyond the 180-day RFP completion period to assess RFP bids and 
finalize their alternative plans for Commission consideration.  Just as the Act recognizes that FirstNet 
itself will “develop” an RFP, then complete the RFP “process,” and then deliver to states the “proposed 
plan for buildout of the nationwide, interoperable broadband network in such State”55—and just as 
FirstNet did not deliver the state plans immediately upon completion of the RFP process—we believe it 
reasonable to afford states that have developed and completed RFPs an additional 60-day period to submit 
alternative state plans to the Commission. We recognize that NPRM proposed to require states to submit 
their plans within the same 180-day timeframe applicable to completion of the state RFP, but after 
                                                     
51 Fairfax Comments at 5; FirstNet Comments at 7; NASCIO Comments at 2; Nevada Comments at 3; Pennsylvania 
Comments at 7.  
52 See, TXPSBP Comments at 3 (arguing if 180-days is set as a deadline, waivers should be available); Fairfax 
Comments at 5 (noting no statutory timeframe is required but still supporting the 180-day timeframe); Pennsylvania 
Comments at 4-5 (also noting no statutory timeframe for submission and supporting the 180-day timeframe).   
53 APCO Comments at 2 
54 Attachment to Letter, dated May 22, 2017 from Joseph P. Marx, Assistant Vice President, AT&T Services Inc., to 
Marlene H Dortch, Secretary, Federal Communications Commission at 1-2 (filed May 22, 2017 in PS Docket 16-
269) (AT&T May 22 Ex Parte ).   
55 Public Safety Spectrum Act, § 6302(e)(1). 
(continued….) 
 Federal Communications Commission FCC-CIRC1706-02    
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considering some of the timing concerns expressed by commenters, we believe providing this additional 
time will provide states flexibility to complete their alternative plans without significant delay, and will 
assist in ensuring that the plans filed with the Commission are robust and fully realized. The 60-day 
window will also allow an opt-out state to focus, within the 180-day period, on efforts to develop and 
complete its RFP without having to develop its alternative plan in parallel, possibly taxing finite state 
resources.   
21. While we will provide states an additional 60 days for submission of alternative plans, and 
thereby a total of 240 days from their opt-out notification date, we reject arguments in favor of giving 
states more time.56  We also reject suggestions that a state should be allowed to resubmit its alternative 
plan should the Commission disapprove of that plan.57  Such approaches would potentially allow 
indefinite delay on the part of the state or result in a multi-year process before any RAN buildout could 
occur in an opt-out state, thus undermining the goal of timely achieving an interoperable public safety 
network with nationwide coverage.  Given the prescribed timelines for action associated with the various 
opt-out steps, we find our chosen approach creates the correct balance of incentives for all parties to the 
process, allowing for meaningful exercise of options by the state while declining to jeopardize the 
NPSBN as a whole.   
3 .  Alternative Plan Contents 
22. N P R M .  The Commission sought comment on its tentative view that plans filed with the 
Commission must, at a minimum: (1) address the four general subject areas identified in the Act 
(construction, maintenance, operation, and improvements of the state RAN), (2) address the two 
interoperability requirements set forth in Sections 6302(e)(3)(C)(i)(I) and (II) of the Act, and 
(3) specifically address all of the requirements of the Technical Advisory Board for First Responder 
Interoperability.58  The Commission sought comment on whether the Commission should require a 
standardized organization scheme or format for alternative plans to ease their evaluation.59   
23. C o m ments.  Parties that opined on the matter generally agree with the tentative view that 
alternative plans must contain the three minimum items the Commission set out in the N P R M .60  Parties 
also generally support a standard organization scheme or format. 
24. Decision .   We adopt the tentative conclusion proposed in the NPRM.  Plans filed with the 
Commission must, at a minimum, (1) address the four general subject areas identified in the Act 
(construction, maintenance, operation, and improvements of the state RAN), (2) address the two 
interoperability requirements set forth in Sections 6302(e)(3)(C)(i)(I) and (II) of the Act, and 
                                                     
56 FNCGB Comments at 5, Florida Comments at 4. 
57 See, e.g. , Alabama Comments at 6 (arguing states should have the ability to dispute a rejected alternative plan and 
be afforded the ability to cure). 
58 NPRM , 31 FCC Rcd at 10271, para. 53. Specifically, Section 6302(e)(3)(C)(i) states that states making a timely 
opt-out decision shall: 
…submit an alternative plan for the construction, maintenance, operation, and improvements of the radio access 
network within the State to the Commission, and such plan shall demonstrate—  
(I) that the State will be in compliance with the minimum technical interoperability 
requirements developed under section 6203; and  
(II) interoperability with the nationwide public safety broadband network.  
Public Safety Spectrum Act, § 6302(e)(3)(C)(i). 
59 NPRM , 31 FCC Rcd at 10271, para. 53 . 
60 DVA Comments at 4-5; Fairfax Comments at 6; Pennsylvania Comments at 6. 
(continued….) 
 Federal Communications Commission FCC-CIRC1706-02    
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(3) specifically address all of the requirements of the Technical Advisory Board for First Responder 
Interoperability.  In finding that the 180-day “develop and complete” requirement is also a threshold 
determination for Commission consideration of an alternative plan, we also determine that a state 
alternative plan must certify and provide evidence that the 180-day timeframe was met.     
25. Although we decline to prescribe a specific organization scheme or format for alternative 
plans, a plan should clearly track the statute and provide clear headers organizing content61 to include: 
? Construction 
? Maintenance  
? Operation 
? Improvements “of the Radio Access Network” 
26. We expect that much of this information will be directly responsive and presented in the 
alternative to the state plan developed by FirstNet.  Although the Commission’s review is limited to 
interoperability, all these elements must be included by statute.  In addition, a plan should demonstrate 
compliance with the two statutory “interoperability” prongs as well as adherence to the Interoperability 
Board Report.62  Elements of an alternative plan addressing these two statutory elements should also be 
clearly labelled with headers as well.  We stress that the state is responsible for clearly identifying 
elements of its plan responsive to each requirement.  Simply appending or providing the state’s RFP or 
bids responsive to the RFP will not be sufficient.    
4 .  Confidentiality, Accessibility, and Amendments 
27. NPRM.   The Commission sought comment on who should have access to state plans, who 
should be able to comment on state plans, whether plans should be treated as confidential, and what 
protective measures the Commission should use to ensure confidentiality.63  In particular, the Commission 
sought comment on the extent to which FirstNet and NITIA should have access to and the ability to 
comment on state plans.64  The Commission also sought comment on whether the Commission should 
allow a state to file amendments or provide supplemental information to the plan once it is filed with the 
Commission but prior to the Commission’s decision, and whether Commission staff should be permitted 
to discuss or seek clarification of the alternative plan contents with the filer.65 
28. C o m ments.   Most parties support limiting public access to state alternative plans due to the 
fact that such plans will likely contain confidential or sensitive information that could compromise the 
security of public safety networks.66  However, some parties find merit in allowing other states to access 
the plans.67  Parties generally support treating plans as confidential.68  There is also limited support for use 
                                                     
61 See, e.g. , TXPSBP Comments at 4 (asserting a standard format should not be necessary provided it is clear what 
elements should be included).   
62 We will discuss the specific requirements for these showings below. 
63 NPRM,  31 FCC Rcd at 10272, para. 54. 
64 Id . 
 
65 Id .  at para 53. 
66 Alabama Comments at 7, Illinois Comments at 8.  APCO and FirstNet believe access should be extremely limited.  
FirstNet Comments at 8, APCO Comments at 6-7. 
67 DVA Comments at 6, Florida Comments at 7. 
68 DVA Comments at 5, Indiana Comments at 5, NASCIO Comments at 3.   
(continued….) 
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of secure portals to maintain the confidentiality of alternative plans.69 
29. Parties take differing positions on who the Commission should allow to comment on 
alternative plans.  Some parties argue that full public comment should be allowed70 while others argue for 
limiting the right to comment to a narrowly defined set of stakeholders.71  APCO contends that only 
FirstNet should be able to comment on plans,72 while other parties contend that only the Commission 
should review alternative plans.73  On the issue of plan amendments FirstNet and APCO argue that states 
should not be able to amend or supplement their alternative plans.74  State commenters, however, 
generally argue they should be allowed to amend their plans,75 especially in response to Commission 
inquiries or potential objections/comments from FirstNet.76   
30. Decision .   In light of the state-specific nature of the opt-out process, we will treat each state 
opt-out application as a separate restricted proceeding under our rules.77  In this respect, we note that these 
proceedings are similar in nature to specific spectrum license applications or adjudicatory proceedings, 
rather than rulemakings, so it is appropriate to initially limit immediate participation to those directly 
impacted.  The parties to these proceedings will initially include the state filing the application, FirstNet, 
and NTIA.  We find that the opt-out state is in a position to adequately represent the interests of its public, 
public safety entities in the state, and similar constituencies, while FirstNet and NTIA can adequately 
represent those interests favoring nationwide network implementation. Although some parties question 
the inclusion of NTIA, others recognize that both NTIA and FirstNet have roles to play subsequent to the 
Commission’s processes, meriting inclusion at this stage.78  We agree with those arguing for inclusion.  
Moreover, treating these proceedings as restricted with this initial set of parties will aid in focusing the 
record before the Commission, while providing a broad perspective of interests.   
31. At the conclusion of the opt-out notification period, the Bureau will issue a Public Notice 
identifying the states that have filed opt-out notifications with the Commission and establishing individual 
dockets for each opt-out proceeding.  Other persons or entities seeking to participate in a proceeding may 
petition the Commission for leave to intervene based on a demonstrated showing of interest.  Such a 
petition must be filed within 30 days of the Public Notice, identify the specific docket in which the filer 
wishes to participate, and clearly detail the filer’s interest in the proceeding.  The petition must include an 
explanation of the filer’s interest in the outcome of the particular state’s application, as well as an 
explanation of how the filer’s interests are not otherwise represented by the state, FirstNet, or NTIA or 
                                                     
69 APCO Comments at 7, Florida Comments at 5. But see  SouthernLinc Comments at 12 (arguing that the 
Commission should protect the proprietary and confidential information through the use of protective orders 
comparable to those implemented in merger proceedings). 
70 Stephen Whitaker Comments at 3, Dr. Michael Myers Comments at 11. 
71 Illinois Comments at 9, FirstNet Comments at 7 (asserting there is no need for the Commission’s decision to 
involve any entity other than the FCC, the opt-out state/territory, and FirstNet). 
72 APCO Comments at 6. 
73 Nevada Comments at 6; Fairfax Comments at 7. 
74 APCO Comments at 5; FirstNet Reply Comments at 6.  
75 Alabama Comments at 6; FNCGB Comments at 5, 8; TXPSBP Comments at 4. 
76 Nevada Comments at 5,7; NASCIO Comments at 2; Pennsylvania Comments at 6. 
77 See 47 C.F.R. § 1.1208. 
78 See DVA Comments at 5 (supporting inclusion of NTIA and FirstNet in the Commission process, but advocating 
ensuring that the NTIA and Commission processes remain separate); Florida Comments at 5 (supporting inclusion 
of FirstNet and NTIA so long as states have an opportunity to respond to comments); NASCIO Comments at 3 
(same); Illinois Comments at 9.   
(continued….) 
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how its participation would otherwise aid the Commission in a full evaluation of the facts.   
32. Each opt-out state will have 240 days from the date of its opt-out notification to the 
Commission to file an alternative state plan in the docketed proceeding established for that state.  States 
may file the plans, and those with party status to each proceeding may file comments on the plan, in the 
specified docket via the designated secure e-mail address, or via certified mail to the Secretary’s office.    
33. We agree with commenters that alternative state plans are very likely to contain proprietary 
information as well as information whose disclosure could compromise the security of the NPSBN and/or 
the state RAN.79  However, we believe that our existing rules for seeking confidential treatment will 
provide sufficient protection.80  Parties may therefore seek confidential treatment of any filing under our 
Part 0 rules, including the use of a protective order process to allow those granted party status to the 
restricted proceeding access to the information on a confidential basis.81 
34. Upon each state filing of an alternative plan, we direct the Bureau to review the plan and 
make an initial determination whether the plan meets relevant filing criteria described herein.  This 
determination will prevent gaming or “placeholder” filings and ensure that each application is compliant 
with the minimum threshold requirements for consideration.  Further, we direct the Bureau to issue one or 
more public notices identifying each application that has been “accepted for filing,” which will trigger the 
relevant “shot clock” as described below.  Recognizing that we cannot predict how many applications 
may be filed, we direct the Bureau to issue such public notice as soon as practicable, within 10 business 
days of receipt of the alternative plan if possible.   
35. After the “accepted for filing” public notice is issued, we will allow NTIA and FirstNet, as 
well as any others granted party status, 15 days to comment on the alternative plan and file comments in 
the relevant docket, confidentially or otherwise.  States will then have 15 days to amend their plans and/or 
file reply comments, again with a request for confidential treatment as appropriate.  This 30-day pleading 
cycle allows for some iterative discussion between a state, FirstNet, and interested parties, while still 
providing a firm deadline and certainty of process.   
36. Although some commenters urge the Commission to prohibit amendments, citing possible 
delays to the deployment of the NPSBN,82 we do not believe the 30-day pleading cycle allowed here will 
cause undue delay. Moreover, as this is a first-of-its-kind proceeding, parties should be allowed a limited 
means of correction. Ultimately, we anticipate that the process will benefit both the parties and the 
Commission’s understanding of the request, allowing for a full and thoughtful evaluation of the 
alternative plan.83 All told, including statutory timeframes, our decisions today regarding Commission 
processes and timing provide 12 months from FirstNet’s delivery of final state plans for states to make 
their opt-out decision, develop and submit alternative plans, and complete the 30-day pleading cycle once 
plans are filed. We believe this provides adequate time for notice and evaluation and to demonstrate 
interoperability in the context of the Commission’s alternative plan evaluation process.  Moreover, as 
described below, we are establishing an aspirational shot clock for Commission action, providing 
additional certainty as to speed of decision-making. 
                                                     
79 See, e.g. , DVA Comments at 5; Illinois Comments at 8; Indiana Comments at 5; Nevada Comments at 6.   
80 See NASCIO Comments at 3. 
81 See generally 47 C.F.R. § 0.459. 
82 FirstNet Reply Comments at 6.   
83 See, e.g. , Florida Comments at 10 (urging an “open dialogue” between the applicant and Commission staff); 
Illinois Comments at 8 (arguing the Commission should accept amendment to ensure accurate and up to date 
information); Nevada Comments at 5 (urging the ability for states to correct deficiencies); SouthernLinc Comments 
at 15-16); TXPSBP Comments at 4 (asserting the process should be cooperative and interactive). 
(continued….) 
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B.  Evaluation Process and Criteria 
1.  Shot Clock 
37. N P R M .  In the N P R M , the Commission proposed establishing a “shot clock” for Commission 
action on alternative plans to provide a measure of certainty and expedience to the process.84  The 
Commission sought comment on whether 90 days would be an appropriate timeframe,85 whether the 
Commission could adjust the timeframe upwards or downwards based on the number of state alternative 
plans submitted for review,86 when the shot clock should commence,87 and whether the Commission 
should announce the commencement of the clock.88  
38. C o m ments.  No party opposes a shot clock, and most commenters that address the issue 
support a 90-day shot clock,89 although one party supports setting the shot clock at 10 business days.90  
There is support for public notification of when the shot clock commences91 as well as only notifying the 
states that the clock has started.92  Some commenters support firm deadlines, with no ability for the 
Commission to suspend or pause the clock.93  Other commenters advocate allowing the Commission to 
suspend the clock so that it can address issues or questions arising from the alternative plan,94 although 
some would allow suspension only in national, regional, or state level declared emergency situations, not 
in instances where the “urgency” is caused by lack of staffing or planning.95 
39. Decision .   While there is no requirement that the Commission place a shot clock on itself for 
action, we find it appropriate to establish a 90-day aspirational shot clock for Commission action, which 
will start upon issuance of the “accepted for filing” public notice for each alternative plan.  The 90-day 
shot clock will establish clear expectations for the Commission and for the parties involved to encourage 
prompt action and avoid delay.  We do not agree with the suggestion that the Commission establish a 
much shorter shot clock that would require a decision within 10 business days.  This underestimates the 
potential complexity of these technical filings, could inhibit the Commission’s ability to evaluate fully all 
material relevant to a decision, and would clearly impede the ability of the Commission, NTIA, and 
FirstNet to consider the application and for the state to respond to any concerns.   
40. Although the shot clock is aspirational, we intend to apply it in the ordinary course and only 
anticipate suspending it under special circumstances, such as a national, state, or local emergency that 
requires diversion of Commission staff resources to address the situation.  We reject the suggestion that 
no suspension of the shot clock should be allowed.  To do so would tie the Commission’s hands in times 
of crisis with respect to allocation of resources, which is clearly contrary to the public interest.  We also 
                                                     
84 NPRM , 31 FCC Rcd at 10272, para. 57. 
85 Id . 
86 Id . 
87 Id . 
88 Id . 
89 FNCGB Comments at 11, NASCIO Comments at 3, Nevada Comments at 6, Pennsylvania Comments at 8, 
SouthernLinc Comments at 12. 
90 Illinois Comments at 10 
91 FNCGB Comments at 11, Illinois Comments at 11. 
92 Nevada Comments at 6, Pennsylvania Comments at 8. 
93 APCO Comments at 7, FirstNet Comments at 9-10 
94 Alabama Comments at 8; Florida Comments at 8; TXPSBP Comments at 5-6. 
95 Illinois Comments at 11. 
(continued….) 
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disagree with APCO and Florida and decline to impose a default “consequence” ( i .e ., either automatic 
approval or automatic disapproval) if the Commission exceeds its self-imposed deadline.96  Establishing 
such a consequence would be contrary to the Act, which requires affirmative action by the Commission,97 
and automatic approval of a plan triggered by exceeding the shot clock would risk allowing the 
construction of a non-interoperable state RAN—an outcome clearly at odds with the intent of the Act.  
Since these opt-out evaluations are unique proceedings, we believe our decision balances the need for 
thoroughness with speed, while ensuring that the Commission hear and evaluate all evidence pertinent 
and material to its decision.98  
2 .  Scope of Review 
41. N P R M .  In the N P R M , the Commission proposed limiting its evaluation of the opt-out states’ 
alternative plans to the RAN, which the Act defines as consisting of “all the cell site equipment, antennas, 
and backhaul equipment, based on commercial standards, which are required to enable wireless 
communications with devices using the public safety broadband spectrum.”99  The Commission noted that 
FirstNet interpreted this definition to include “standard E-UTRAN elements (e.g.,  the eNodeB) and 
including, but not limited to, backhaul to FirstNet designated consolidation points” and sought comment 
on how to apply this RAN definition in its analysis and whether there are any elements of the definition 
that should not be considered as part of the Commission’s interoperability review.100  
42. The Commission also sought comment on its proposal to exclude certain components of the 
NSPBN from review because the Commission regarded them as not included within the statutory 
definition of RAN as interpreted by FirstNet, specifically noting exclusion of user equipment (UE) and 
applications from Commission consideration.101 In addition, the Commission sought comment on its view 
that once the Commission disapproves a state’s plan, the state forfeits the ability to conduct its own RAN 
deployment.102   
43. C o m ments.  Parties generally concur that the Commission should confine its evaluation of the 
alternative plans to the RAN.103  No party offered a definition of RAN diametrically opposed to the 
definition proposed by FirstNet.104  Parties generally agreed with the Commission’s decision to limit its 
analysis to only those interoperability elements pertaining to the RAN and to exclude UE and application 
related interoperability considerations.105 
                                                     
96 APCO Comments at 7; Florida Comments at 8. 
97 Public Safety Spectrum Act, § 6302(e)(2)(C)(ii). 
98 See id. § 6302(h)(2)(C). 
99 NPRM , 31 FCC Rcd at 10275, para. 64. 
100 Id . , para. 64. 
101 Id . , para. 65. 
102 Id . at 10273, para. 59. 
103 APCO Comments at 8; Fairfax Comments at 9; Illinois Comments at 14. 
104 FirstNet Comments at 12-13. But see Illinois Comments at 14 (arguing that all the demarcation points between 
the FirstNet infrastructure and state’s RAN responsibilities must be clearly defined and documented before alternate 
plans are submitted). 
105 DVA Comments at 9, Fairfax Comments at 9; b ut see TXPSBP Comments at 9 (asserting that while the statutory 
definition of RAN does not list user equipment or applications as part of the RAN, it is possible that RAN-
dependent compatibility issues may arise concerning user equipment and/or applications. To the extent such issues 
impact the RAN, then they would seem relevant to the FCC’s decision). 
(continued….) 
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44. Parties also generally agree with the Commission that once the Commission has disapproved 
an alternative plan the Commission is barred from entertaining any amended or different alternative plan 
and the state forfeits the ability to pursue its own RAN deployment.106  Several states disagreed with the 
Commission’s contention that approval of a state opt-out plan would not create a presumption that the 
plan meets the criteria NTIA is responsible for evaluating.  These states argue that Commission approval 
of a plan obviates the need for NTIA review of the plan.107   
45. Decision .  We adopt the proposal set out in the NPRM and will confine our review to the 
RAN elements of state alternative plans, which we define as all the cell site equipment, antennas, and 
backhaul equipment, based on commercial standards, that are required to enable wireless communications 
with devices using the public safety broadband spectrum including standard E-UTRAN elements (e.g.,  the 
eNodeB) and including, but not limited to, backhaul to FirstNet designated consolidation points.  Thus, 
we will not examine plan elements pertaining to equipment or applications, or issues related to 
coverage/financing, etc.  These elements are more appropriately the focus of NTIA’s subsequent review 
of the plan as directed by the Act.  We also agree with commenters that if the Commission disapproves an 
alternative plan, there is no opportunity to refile with the Commission.  The statutory remedy of appeal to 
the U.S. District Court for the District of Columbia is the only remedy available at that point.108   
C.  Content and Review of State Plan Elements 
46. In the N P R M , the Commission tentatively concluded that Congress intended to limit the 
scope of Commission review to the two specified elements of Section 6302(e)(3)(C)(i) of the Act, i.e. , 
compliance with the minimum technical interoperability requirements and interoperability with the 
nationwide public safety broadband network.109   
47. The NPRM noted that the Commission’s review of opt-out requests is only the first step in a 
multi-step process and that states whose requests are approved by the Commission must go through 
additional review by NTIA and FirstNet.110  The Commission also noted that NTIA will evaluate, i nter 
alia,  a state’s ability to maintain “ongoing” interoperability with the nationwide public safety broadband 
network.111  The Commission proposed to evaluate state opt-out plans based solely on whether they 
comply with the requirements for interoperability at the time the plan is submitted and that Commission’s 
approval of a state opt-out plan would not create a presumption that the state plan meets any of the criteria 
that NTIA is responsible for evaluating.112 
48. The N P R M  further proposed that state alternative plans include a showing that the state will 
adhere to those FirstNet network policies that relate to interoperability with respect to the FirstNet 
nationwide network, to the extent that FirstNet has published such policies at the time that the state 
                                                     
106 APCO Comments at 7; FirstNet Comments at 10; Illinois Comments at 11; NASCIO Comments at 3.  But see 
Stephen Whitaker Comments at 6 (stating that it is both unwise and counterproductive to unnecessarily wield the 
heavy-hand when the goal is to build both local and national capacity to build, manage and oversee such a complex, 
first of its kind, national, interoperable infrastructure). 
107 Florida Comments at 11; Nevada Comments at 5; Pennsylvania Comments at 6.  But see APCO Comments at 7 
(arguing that the Commission should evaluate state opt plans based solely on whether they comply with the 
requirements for interoperability at the time the plan is submitted and that its evaluation would not extend to issues 
that the Act reserves for NTIA review). 
108 Public Safety Spectrum Act at § 6302(e)(2)(C)(iv) 
109 NPRM , 31 FCC Rcd at 10272-73, paras. 58-60. 
110 Id . at 10273, para. 60. 
111 Id . at 10273, para. 61. 
112 Id . at 10274, para. 62. 
(continued….) 
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submits its plan to the Commission.113   
1 .  Interoperability Board Requirements 
49. N P R M . Under the terms of the Act, the Commission was required to appoint members with 
specific technical, operational, and public safety backgrounds to the “Technical Advisory Board for First 
Responder Interoperability” (Interoperability Board).114  The Interoperability Board was required to 
develop “recommended minimum technical requirements to ensure a nationwide level of interoperability” 
for the NPSBN (“Board Report”).115  On May 22, 2012 the Interoperability Board delivered its report to 
the Commission.116  The Board Report included 46 requirements (“SHALLS”) and 55 considerations 
(“SHOULDS”) for a nationwide interoperable public safety broadband network.  On June 21, 2012, the 
Commission in turn transmitted the recommendations to NTIA, as required by the Act.117 
50. Under the first prong of the statutory evaluation by the Commission, a state alternative plan 
must demonstrate “compliance” with the Interoperability Board’s “requirements.”118  The N P R M  
proposed that the Commission’s review in this regard should solely address technical interoperability 
criteria (those “SHALL” recommendations”), and further recommended limiting those requirements to 
elements relating to the RAN as defined in the Interoperability Board’s Report,119 specifically 
requirements (1)–(3), (7)–(10), (20)–(25), (29), (39), and (41)–(42).120   
51. C o m ments.  Parties generally supported confining first-prong review to requirements (1)–(3), 
(7)–(10), (20)–(25), (29), (39), and (41)–(42) as proposed in the NP R M .121  DVA, however, recommends 
the Commission also include requirements (4)–(6) and (11) pertaining to 3GPP LTE Standards and 
Interfaces as well as requirement (38).122  Illinois opines that the Commission should make the additional 
55 considerations that are currently listed as “SHOULDS” mandatory as well.123 
52. Decision .   For the reasons stated in the N P R M , we will limit our review under the first prong 
to the “SHALL” criteria originally proposed.  In particular, we reject the suggestions of DVA and Illinois 
to expand the scope of the Commission’s review under the first prong.  Although DVA recommends 
consideration of requirements (4)–(6), (11), and (38), it fails to explain how their inclusion would 
contribute to the Commission’s limited review related to technical interoperability of the proposed state 
                                                     
113 Id . at para. 63. 
114 Public Safety Spectrum Act § 6203(a)-(b). 
115 Id .  at § 6203(c). 
116 Recommendations of the Technical Advisory Board for First Responder Interoperability , PS Docket 12-74, Order 
of Transmittal, 27 FCC Rcd 7733 (2012). 
117 Id .   Given that the FirstNet Board had not yet been constituted, the Commission delivered the Report to the 
Administrator of the National Telecommunications and Information Administration (NTIA), pending the formation 
of the FirstNet Board. 
118 Public Safety Spectrum Act § 6302(e)(3)(C)(i)(I). 
119 Id .  § 6302(e)(3)(C)(i)(I). 
120 NPRM , 31 FCC Rcd at 10276, paras. 68-69. The Commission included the Interoperability Board Report as 
Appendix B to the NPRM and we include it as Appendix B to this Report and Order.  
121 Alabama Comments at 10. 
122 DVA Comments at 10.  Requirement 38 relates to the security of the NPSBN, recommending a nationwide 
common security profile for user plane and control plan traffic base d on 3GPP standards. See Interoperability Board 
Report at 1.3.7.   
123 Illinois Comments at 16. 
(continued….) 
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RAN.124  Illinois’ suggestion that the Commission review alternative plans for compliance with all 
“should” recommendations of the Board ignores the statutory language cited in the N P R M  linking review 
to “requirements.”  Accordingly, we find that alternative plans should address technical interoperability 
criteria relating to the RAN as defined in the Interoperability Board’s Report, specifically requirements 
(1)–(3), (7)–(10), (20)–(25), (29), (39), and (41)–(42) .  We find that demonstrating compliance with these 
requirements supports the Commission’s obligation under this prong of the statutory test, while similarly 
recognizing the Act’s scope of Commission review (i.e. , focusing on state RAN).  We attach these 
requirements as Appendix B. 
2 .  Interoperability with the NPSBN 
53. N P R M .  In the N P R M , the Commission proposed reviewing a state alternative plan’s 
compliance with the second prong of the statutory test relating to “interoperability” with the NPSBN125 
solely with respect to the state’s compliance with those RAN-related network requirements specified by 
FirstNet that are necessary to ensure interoperability with the FirstNet network.  Thus, the Commission 
proposed not to extend the scope of the Commission’s review to issues other than such RAN-related 
interoperability.126  The Commission also stated its view that the statute calls for the Commission to 
independently and impartially evaluate whether alternative plans comply with the interoperability-related 
requirements established by FirstNet, but does not empower the Commission to impose network policies 
or interoperability requirements on FirstNet.127  The Commission tentatively concluded that any state plan 
that required alteration or changes to the FirstNet network would not meet the interoperability 
requirement of the Act.128 
54. C o m ments.  Parties generally agree that the Commission should confine its review to RAN-
related technical interoperability.129  Parties also generally agree that the Act does not empower the 
Commission to impose network policies or interoperability requirements on FirstNet.130  Some parties 
believe the Commission should not approve any plan that requires any changes to the FirstNet network.131  
Others believe this requirement is too strict and that the Commission could employ a de minimis test.132  
55. While FirstNet states it is developing a network interoperability matrix,133 parties express 
concern that the delivery of this matrix may be too late to allow a state to address it in its alternative plan 
or for the Commission to reasonably include its contents in the Commission’s alternative plan review.134   
56. Texas argues that the Commission’s proposal does not meet the requirements of Section 
553(b) of the Administrative Procedure Act, which requires an administrative agency to publish the 
substance of a proposed rule and provide opportunity to comment thereon, prior to adopting a rule.  Texas 
                                                     
124 For example, one of the referenced requirement would place obligations on FirstNet’s sharing agreement.  This 
does not relate to technical interoperability of the state RAN within the Commission’s scope of review.   
125 Public Safety Spectrum Act § 6302(e)(3)(C)(i)(I). 
126 NPRM , 31 FCC Rcd at 10276, para 70. 
127 Id . 
128 Id . at para. 67. 
129 FNCGB Comments at 15; Fairfax Comments at 10; SouthernLinc Comments at 14. 
130 APCO Comments at 8-9; NASCIO Comments at 4. 
131 APCO Comments at 8; DVA Comments at 9; Illinois Comments at 15-16. 
132 Alabama Comments at 10; FNCGB Comments at 14-15; TXPSBP Comments at 9-10. 
133 FirstNet Comments at 12. 
134 FNCGB Comments at 14; Illinois Comments at 14; NASCIO Comments at 4; TXPSBP Comments at 6-7. 
(continued….) 
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further contends that the Commission is proposing to relinquish its rulemaking authority to FirstNet, a 
Commission-regulated licensee, rendering any rules adopted arbitrary and capricious.135 
57. In an issue not raised in the N P R M , Alabama, Colorado, and SouthernLinc have asked the 
Commission to affirmatively conclude that a state plan can include a separate state network core.136    
58. Decision .   We adopt the proposal the Commission made in the NPRM and will confine our 
review of a state alternative plan’s compliance with the second prong of the statutory test solely to 
compliance with those RAN-related network requirements specified by FirstNet in its forthcoming 
network policies that are necessary to ensure interoperability with the FirstNet network.  Our review will 
be a purely technical review, consisting of a snapshot evaluation based on the application.  We find the 
best means of conducting our review within the terms of the statute is to require a “paper” compliance 
showing only.  Therefore, we will not require states to demonstrate interoperability in the field, which 
would be overly prescriptive and unachievable in the timeframes given.   
59. We also affirm our view stated in the N P R M  that state plans that would require FirstNet to 
alter its network by definition do not meet the second interoperability prong of the statutory test.  To find 
otherwise creates opportunities for delay and increased costs.   
60. In requiring states to demonstrate compliance with FirstNet’s network policies relating to 
interoperability, we are cognizant that FirstNet has not yet advised the Commission or the states as to 
what its network policies will be, although it intends to do so as part of its delivery of state plans.137  We 
are also mindful of Texas’ argument that failure to have timely access to this information may implicate 
the APA and would render compliance with this requirement practically challenging for the states.  
Nevertheless, we also note the unique statutory responsibilities placed upon FirstNet as a government 
entity to develop and deploy a nationwide interoperable public safety network.  As the network architect 
and steward of this national resource, FirstNet has particular insight into the means and manner by which 
interconnection with a state-built RAN would achieve interoperability with its network.  We also 
recognize the potentially competing interests that FirstNet and opt-out states may have with respect to this 
issue, which was further acknowledged in the N P R M ’s proposal that the Commission, while utilizing 
FirstNet’s assessment of interoperability relative to its network, would act as a neutral arbiter of whether 
an alternative plan meets this requirement.   
61. In light of these considerations and the states’ lack of current access to FirstNet’s network 
policies, we direct the Bureau to issue and publish in the Federal Register a Public Notice once FirstNet 
has made its network policies available to the Commission and the states and has identified those network 
policies that it deems relevant to interoperability.  The Public Notice will seek expedited comment on 
those network policies relevant to interoperability and the Commission’s statutory review.  Upon close of 
the record, the Commission will issue a subsequent order specifically identifying those elements of 
FirstNet’s network policies that we will consider in evaluating state compliance with the second prong of 
the statutory test.   
62. Finally, with respect to the request from Alabama, Colorado, and SouthernLINC that we 
affirmatively conclude that a state may include a separate state network core in its alternative plan, we 
find this issue to be outside the scope of our statutory review responsibility and we decline to consider it 
further.  Accordingly, although we will not reject an otherwise qualified alternative plan that includes a 
proposed state core, we will limit our review solely to the interoperability of the state RAN with the 
FirstNet network as directed by the Act and will not examine possible RAN interconnection with non-
                                                     
135 Texas Comments at 7. 
136 Alabama Comments at 9-10, FNCGB Reply Comments at 8, and SouthernLinc Comments at 5. 
137 FirstNet March 22 Ex Parte .   
(continued….) 
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FirstNet networks or cores.    
3 .  Interoperability Certification 
63. N P R M .  In the N P R M , the Commission sought comment on what specific information a state 
should provide in its alternative plan to demonstrate that it will be interoperable with the FirstNet network 
two-prong statutory test as well as what standards and measurements of compliance the Commission 
should adopt with respect to evaluating a state’s submission.138  Specifically, the Commission asked 
whether opt-out states should: 
? certify compliance with the interoperability-related elements of FirstNet’s network plan and 
policies;139  
? provide additional documentation regarding specific elements in their alternative plans that could 
affect interoperability; 140 or  
? submit relevant test plans to demonstrate how they intend to meet the interoperability 
requirements.141 
64. Assuming ultimate adoption of a certification regime, the Commission also sought comment 
on what level of certification should be deemed sufficient.142  The Commission asked whether self-
certification by the Governor or his/her designee would be sufficient or whether a third party should 
certify the plan, and who would be an appropriate third party in the latter case.143   
65. C o m ments.   Parties generally support allowing states to certify compliance but contend that 
they should also provide sufficient information to demonstrate that compliance is achievable.144  Parties 
variously support self-certification, (i.e. , certification without providing additional information),145 
requiring independent third party review of the state’s compliance demonstration,146 or relying on the 
Commission to conduct a technical review.147   
66. Decision .   We will require states to include a self-certification by the Governor or their 
designee confirming the state’s adherence to FirstNet network policies identified by FirstNet as relating to 
technical interoperability.  We expect the certification to be supported where appropriate with specific 
references to the RFP and/or bid responses supporting the requirement identified.  However, we will not 
require third party review of certifications.  We agree with those commenters that objected to such a 
requirement on the grounds that it could introduce delay and conflicts of interest.  Moreover, we decline 
to require submission of test plans, as such action more appropriately falls under the purview of the 
“ongoing” interoperability to be assessed by NTIA. 
                                                     
138 NPRM , 31 FCC Rcd at 10276, para 71. 
139 Id . 
140 Id . 
141 Id . 
142 Id . , at 10277, para 72. 
143 Id . 
144 Alabama Comments at 11; DVA Comments at 10; Fairfax Comments at 10; Illinois Comments at 17. 
145 FNCGB Comments at 16; DVA Comments at 11; NASCIO Comments at 4 (self-certification limited to those 
situations where a factual showing is not currently feasible.) 
146 Illinois Comments at 17-18.  However, there is opposition to 3rd party certification.  See Nevada Comments at 9; 
Pennsylvania Comments at 9. 
147 FirstNet Comments at 14-15. 
(continued….) 
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67. Based upon FirstNet’s ex parte, we note that FirstNet anticipates a process whereby states 
will have an opportunity to comment on the draft state plans, including network policies, before final state 
plans are provided to the states, triggering the statutory timing related to opt-out decision making.  We 
believe this provides sufficient time, coupled with the process timelines for Commission submissions 
described herein, for such a certification to be made.    
4 .  Documentation of the Commission Decision 
68. N P R M .  The Commission sought comment on how it should document its decisions to 
approve or disapprove state opt-out requests under the statutory criteria, given that Section 6302(h) of the 
Act provides for only limited judicial review of the Commission decisions based on a showing that: 
(1) the decision “was procured by corruption, fraud, or undue means”; (2) there was “actual partiality of 
corruption”; or (3) there was “misconduct in refusing to hear evidence pertinent and material to the 
decision or of any other misbehavior by which the rights of any party have been prejudiced.”148   
69. C o m ments.  Most parties agree that the Commission should provide a written decision that 
explains the rationale behind each decision to approve or disapprove a state’s alternative plan.149 
70. Decision .  The full Commission will issue a separate Order for each opt-out request.  Each 
order will provide a brief explanation of the Commission’s decision based on the statutory criteria as 
applied to the information submitted in the record.  In addition, if any decision relies on confidential 
information, we will redact the public order as necessary.  We believe this approach will provide a 
sufficient basis for judicial review under the narrow scope provided by Section 6302(h).   
III.  PROCEDURAL MATTERS 
A.  Regulatory Flexibility Analysis 
71. Pursuant to the Regulatory Flexibility Act of 1980, as amended (RFA),150 the Commission’s 
Final Regulatory Flexibility Certification in this Report and Order  is attached as Appendix C. 
B.  Paperwork Reduction Act 
72. The Report and Order document contains information collection requirements subject to the 
Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. The requirements will be submitted to the 
Office of Management and Budget (OMB) for review under Section 3507(d) of the PRA. OMB, the 
general public, and other Federal agencies will be invited to comment on the information collection 
requirements contained in this proceeding. The Commission will publish a separate document in the 
Federal Register at a later date seeking these comments.  However, the Report and Order  does not contain 
any new or modified information collection burden for small business concerns with fewer than 25 
employees, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198.151 
C.  Congressional Review Act 
73. The Commission will send a copy of this document to Congress and the Government 
Accountability Office pursuant to the Congressional Review Act.152 
                                                     
148 NPRM , 31 FCC Rcd at 10277, para. 73 citing Pub. L. No. 112-96 § 6302(h)(2).  
149 Alabama Comments at 11; FNCGB Comments at 17; DVA Comments at 12.  But see  APCO Comments at 9 
(arguing that providing a written explanation of the Commission’s decision would be of no import or relevance to 
the standard of review set by Section 6302(h) of the Act and would impose delays). 
150 5 U.S.C. § 601 et seq . 
151 See 44 U.S.C. § 3506(c)(4). 
152 See  5 U.S.C. § 801(a)(1)(A). 
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D.  Further Information 
74. For further information, contact Roberto Mussenden of the Public Safety and Homeland 
Security Bureau, Policy and Licensing Division, at (202) 418-1428, or by e-mail at 
roberto.mussenden@fcc.gov. 
IV.  ORDERING CLAUSES 
75. Accordingly, IT IS ORDERED, pursuant to Sections 4(i), 4(j), 301, and 303 of the 
Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i), 154(j), 301, 303, as well as Title VI, 
Sections 6003, 6203, and 6302(e), of the Middle Class Tax Relief and Job Creation Act of 2012, Pub. L. 
No. 112-96, 126 Stat. 156, §§ 6003, 6203, 6302(e), that this Report and Order is hereby ADOPTED. 
76. IT IS FURTHER ORDERED that the rules and requirements adopted herein WILL 
BECOME EFFECTIVE [thirty days from the date of publication in the Federal Register], except for new 
sections 90.532(b) and (c) that contain new or modified information collection requirements that require 
review by the OMB under the PRA, which WILL BECOME EFFECTIVE after OMB review and 
approval, on the effective date specified in a notice that the Commission will publish in the Federal 
Register announcing such approval and effective date.” 
77. IT IS FURTHER ORDERED that the Commission’s Consumer and Governmental Affairs 
Bureau, Reference Information Center, SHALL SEND a copy of this Report and Order , including the 
Final Regulatory Flexibility Certification, to the Chief Counsel for Advocacy of the Small Business 
Administration. 
      FEDERAL COMMUNICATIONS COMMISSION 
 
 
 
 
      Marlene H. Dortch 
      Secretary 
 
 Federal Communications Commission FCC-CIRC1706-02    
APPENDIX A 
Final Rules 
 
For the reasons discussed above, the Federal Communications Commission amends 47 CFR Part 90 as 
follows: 
 
PART 90 – PRIVATE LAND MOBILE RADIO SERVICES 
 
Section 90.532 is amended by revising title of the subsection and the redesignating the existing text as 
subparagraph (a) First Responder Network Authority License and Renewal, and adding additional 
subsections (b)-(e) as follows: 
 
§ 90.5 3 2 Licensing of the 758-769 MHz and 788-799 MHz Bands; State Opt-Out Election and 
Alternative Plans 
 
(a)  F irst Responder Network Authority License and Renewal.  Pursuant to Section 6201 of the 
Middle Class Tax Relief and Job Creation Act of 2012, Public Law 112–96, 126 Stat. 156 (2012), a 
nationwide license for use of the 758–769 MHz and 788–799 MHz bands shall be issued to the First 
Responder Network Authority for an initial license term of ten years from the date of the initial issuance 
of the license. Prior to expiration of the term of such initial license, the First Responder Network 
Authority shall submit to the Commission an application for the renewal of such license. Such renewal 
application shall demonstrate that, during the preceding license term, the First Responder Network 
Authority has met the duties and obligations set forth under the foregoing Act. A renewal license shall be 
for a term not to exceed ten years. 
 
(b)  State election to opt out of the First Responder Network Authority Nationwide Network.  No 
later than 90 days after receipt of notice from the First Responder Network Authority under Section 
6302(e)(1) of the Middle Class Tax Relief and Job Creation Act of 2012, Public Law 112–96, 126 Stat. 
156 (Spectrum Act), any State Governor or the Governor’s designee shall file with the Commission a 
notification of the Governor’s election to opt out and conduct its own deployment of a State radio access 
network pursuant to Section 6302(e)(2)(B) of the Middle Class Tax Relief and Job Creation Act of 2012.  
Such notification shall also certify that the State has notified the First Responder Network Authority and 
the National Telecommunications and Information Administration of its election.  This notification shall 
be sent a dedicated e-mail address specified by the Commission or via certified mail to the Secretary’s 
office.  At the conclusion of the opt-out notification period, the Public Safety and Homeland Security 
Bureau shall issue one or more Public Notice denoting which states have elected to opt out. 
 
(c)  Petitions for leave to intervene.  Entities other than The First Responder Network Authority, 
the National Telecommunications and Information Administration, and the relevant state may petition the 
Commission for leave to intervene.  Such a petition must be made within 30 days of the Public Notice 
issued in conformance with subparagraph (b) of this section.  The petition must note the specific plan on 
which they wish to comment and clearly detail the filer’s interest in the proceeding.  This includes an 
explanation of the filer’s interest in the outcome of the particular state’s application, as well as an 
explanation of how the filer’s interests are not otherwise represented by the state, FirstNet, or NTIA, or 
how its participation would otherwise aid the Commission in a full evaluation of the facts. 
  
(d)  F i l i n g of alternative state plans by states electing to opt out.  No later than 240 days after 
filing notice of a State’s election with the Commission under subparagraph (b) of this section, the State 
Governor or the Governor’s designee shall file an alternative plan with the Commission for the 
construction, maintenance, operation, and improvements of the State radio access network. Alternative 
plans may be sent a dedicated e-mail address specified by the Commission or via certified mail to the 
Office of the Secretary. 
 Federal Communications Commission FCC-CIRC1706-02    
2 
 
 
(e)  C o ntents of alternative state plans.  An alternative state plan shall include: 
(1)  An interoperability showing, demonstrating:  
(i). compliance with the minimum technical interoperability requirements 
developed under section 6203 of the Middle Class Tax Relief and Job Creation 
Act of 2012; and 
(ii)  interoperability with the nationwide public safety broadband network. 
(2) Certifications by the State Governor or the Governor’s designee, attesting: 
(i) adherence to FirstNet network policies identified by FirstNet as relating to 
technical interoperability; and  
(ii)  completion of the state’s request for proposal within 180-days of receipt 
of notice of the State Plan furnished by the First Responder Network 
Authority.  Such certification may only be made if the state has: 
(A) Issued a request for proposal for the state’s Radio Access Network; 
(B) Received bids for such network; and  
(C) Selected a vendor(s).   
 
(f) C o m menting on alternative state plans. Within ten business days of the submission of an 
alternative state plan the Public Safety and Homeland Security Bureau shall determine whether the plan is 
acceptable for filing under the criteria set forth under subparagraph (d) and (e) of this section.  The 
Bureau shall issue a Public Notice identifying each plan that has been accepted for filing and initiating an 
abbreviated comment cycle.  
(1)  The First Responder Network Authority, the National Telecommunications and 
Information Administration, and any entity granted party status under subparagraph 
(c) of this subsection may file comments within 15 days of the issuance of the Public 
Notice set forth in this subparagraph. 
(2) The relevant state may file reply comments within 30 days of the issuance of the 
Public Notice set forth in this subparagraph. 
(3) States can file the plans, and those granted party status to each proceeding may file 
comments on the plan, in the specified state docket via a dedicated e-mail address 
specified by the Commission or via certified mail to the Office of the Secretary.    
 
 
 Federal Communications Commission FCC-CIRC1706-02    
3 
 
APPENDIX B 
Opt-out Technical Interoperability Requi rements Based on the Board Document 
 
The requirements in this appendix are based on the Board document “Recommended Requirements” 
(“SHALLs”). Requirements attributable to the NPSBN or FirstNet shall be deemed for these purposes to 
refer to the applicable state RAN.  The numbering is based on the original Board document numbering. 
 
[1]  Hardware and software systems comprising the NPSBN SHALL implement interfaces consistent with Table 2: 
Standards Implementation Methodology. 
 
[2] Hardware and software systems comprising the NPSBN SHALL support the interfaces enumerated in Table 1: 
Minimum Interoperable Interfaces. 
 
[3] Hardware and software systems comprising the NPSBN SHALL support management functions. 
 
[7] The NPSBN SHALL support IPv4, IPv6, and IPv4/v6 PDN types defined in 3GPP TS 23.401. 
 
[8] The NPSBN SHALL support IPv4 and/or IPv6 transport for the EPS interfaces enumerated in Table 1: 
Minimum Interoperable Interfaces, consistent with the FirstNet design. 
 
[9] Any sharing agreement that FirstNet enters into SHALL implement network sharing according to 3GPP TS 
23.251 and SHALL NOT impact public safety operations. 
 
[10] The NPSBN SHALL include the capability to collect and convey UE location data to applications using a 
standardized interface in near real time. 
 
 [20]  Prior to operational deployment on the NPSBN, infrastructure equipment SHALL have passed FirstNet 
required Interface Conformance Testing (e.g. testing S1-MME conformance to 3GPP) on the interfaces 
specified by FirstNet. 
 
[21] Prior to operational deployment on the NPSBN, infrastructure equipment SHALL have passed FirstNet required 
Interoperability Testing at a system level as per the specific IOT requirements for the NPSBN. 
 
[22] Infrastructure deployed on the NPSBN SHALL be included in the FirstNet-required FOA process as part of the 
NPSBN deployment. 
 
[23] The equipment comprising the NPSBN SHALL provide backwards compatibility of interfaces, from time of 
deprecation, for a minimum of two full major release/upgrades of the network. This requirement may be waived 
(i.e., interface obsolescence accelerated) if FirstNet can ascertain from the user community that there are no 
dependencies on a given interface. 
   
[24] The NPSBN SHALL support user mobility across the entire NPSBN (including Opt-out states). 
 
[25] The NPSBN SHALL support S1 and SHALL preferentially support X2 handover between adjacent NPSBN 
cells (including cells owned by opt-out states) whose proximity supports a handover opportunity. 
 
[29] The NPSBN SHALL support the use of mobile VPN technology to support mobility between the NPSBN and 
other networks. 
 
[30] The NPSBN SHALL provide the ability for national, regional, and local applications to dynamically change a 
UE‘s prioritization and QoS using the 3GPP ?Rx‘ interface. 
 
[31] The NPSBN SHALL support all 9 QCI classes specified in table 6.1.7 of 3GPP 23.203 v9.11 or future 
equivalents. 
 Federal Communications Commission FCC-CIRC1706-02    
4 
 
[32] QoS mechanisms in the NPSBN SHALL comply with 3GPP TS 23.203. 
 
[33] The NPSBN SHALL support the usage of all 15 ARP values defined in 3GPP 23.203. 
 
[34] The NPSBN SHALL support the ARP pre-emption capability and vulnerability functions as defined in 3GPP 
23.203. 
 
[35] The NPSBN SHALL implement a nationwide scheme for assigning Access Classes to public safety users and 
secondary users following the 3GPP recommendations in TS 22.011, Section 4.2. 
 
[36]  The NPSBN SHALL implement a nationwide scheme for assigning QoS Class Identifier priority to IP network 
and backhaul priority across the entire NPSBN. 
 
[37]  The NPSBN SHALL support the use of industry standard VPN and MVPN technology, while providing 
priority and Quality of Service for encapsulated applications. 
 
[38]  The NPSBN SHALL use a nationwide common security profile for user plane and control plane traffic 
between UEs, eNBs and MMEs, in accordance with 3GPP LTE Network Access Domain protocols. The profile 
SHALL be based on 3GPP TS 33.401, and will be determined by FirstNet based on a system design and other 
considerations as it deals with evolving cyber threats. As a minimum, the profile SHALL include specification 
of ciphering algorithms (for example, use of AES-128 vs. SNOW 3G). 
 
[39] The nationwide common security profile SHALL include ciphering of control plane traffic in order to provide 
for interoperable cyber protection of the network. Ciphering of user plane traffic is optional and is based on 
policy decisions that involve FirstNet and user agencies. 
 
[41]  Network Domain Security SHALL be implemented in accordance with 3GPP TS 33.210, which stipulates the 
use of IPSec to protect IP communication between administrative domains (including all network connections 
used to interconnect the domains). 
 
[42]  The NPSBN SHALL comply with TS 33.310 as the authentication framework for Public Key Infrastructure to 
authenticate these network interfaces.
 Federal Communications Commission FCC-CIRC1706-02    
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APPENDIX C 
Final Regulatory Flexibility Certification 
1. The Regulatory Flexibility Act of 1980, as amended (RFA), 1 requires that a regulatory 
flexibility analysis be prepared for notice-and-comment rule making proceedings, unless the agency 
certifies that “the rule will not, if promulgated, have a significant economic impact on a substantial 
number of small entities.”2 The RFA generally defines the term “small entity” as having the same 
meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.”3 In 
addition, the term “small business” has the same meaning as the term “small business concern” under the 
Small Business Act.4  A “small business concern” is one which: (1) is independently owned and operated; 
(2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the 
Small Business Administration (SBA).5 
2. As required by the RFA, the Commission incorporated an Initial Regulatory Flexibility 
Analysis (IRFA) in the N otice of Proposed Rulemaking in this proceeding,6 which the Commission 
launched in 2016 to seek comment on how it should administer the state opt-out process as provided 
under the Public Safety Spectrum Act, as well as on its implementation of the specific statutory standards 
by which the Commission is obligated to evaluate state opt-out applications.7  Additionally, the 
Commission sought written public comment on the IRFA.8  No comments specifically addressed the 
IRFA.  This Final Regulatory Flexibility Certification conforms to the RFA.9 
3. In this Report and Order , the Commission implements provisions of the Middle Class 
Tax Relief and Job Creation Act of 2012 (“Public Safety Spectrum Act” or “Act”) governing deployment 
of a nationwide public safety broadband network in the 700 MHz band.10 
4. The Public Safety Spectrum Act establishes the First Responder Network Authority 
(FirstNet) to oversee the construction and operation of this network as licensee of both the existing public 
safety broadband spectrum (763-769/793-799 MHz) and the spectrally adjacent D Block spectrum (758-
763/788-793 MHz).11 The Act directs the Commission to reallocate the D Block for public safety 
                                                     
1 See  5 U.S.C. § 603.  The RFA, see  5 U.S.C. § 601 – 612, has been amended by the Small Business Regulatory 
Enforcement Fairness Act of 1996 (SBREFA), Pub. L. No. 104-121, Title II, 110 Stat. 857 (1996). 
2 5 U.S.C. § 605(b). 
3 5 U.S.C. § 601(6). 
4 5 U.S.C. § 601(3) (incorporating by reference the definition of “small-business concern” in the Small Business 
Act, 15 U.S.C. § 632). Pursuant to 5 U.S.C. § 601(3), the statutory definition of a small business applies “unless an 
agency, after consultation with the Office of Advocacy of the Small Business Administration and after opportunity 
for public comment, establishes one or more definitions of such term which are appropriate to the activities of the 
agency and publishes such definition(s) in the Federal Register.” 
5 15 U.S.C. § 632. 
6 See Procedures for Commission Review of State Opt-Ou t Request from the FirstNet Radio Access Network et. al. , 
PS Docket 16-269, Report and Order and Notice of Proposed Rulemaking, 31 FCC Rcd 10253 at 10284, Appendix 
C.   
7 Id . at 10254, para 2. 
8 Id .  at 10284. 
9 See  5 U.S.C. § 605(b).  
10 Middle Class Tax Relief and Job Creation Act of 2012, Pub. L. No. 112-96, 126 Stat. 156 (2012). 
11 See id.  § 6204. 
(continued….) 
 Federal Communications Commission FCC-CIRC1706-02    
2 
 
services,12 to license the D Block and the existing public safety broadband spectrum to FirstNet,13 and to 
take other actions necessary to “facilitate the transition” of such existing spectrum to FirstNet.14   
5. The Public Safety Spectrum Act charges a single entity, FirstNet, with constructing, 
operating, and maintaining a 700 MHz public safety broadband network on a nationwide basis. It also 
authorizes states to elect to deploy radio access networks (RAN) within their states that are interoperable 
with FirstNet’s network.  States therefore have the option to opt out of FirstNet’s RAN deployment and 
conduct their own RAN deployment.15  In contrast, “small governmental jurisdictions” are not authorized 
to construct, operate, or maintain networks.16    
6. The rules promulgated in this Report and Order are intended to provide states with clarity as 
to the steps they must take in order to opt out of FirstNet’s RAN deployment within the state and conduct 
their own RAN deployment.  Accordingly, we conclude the rules adopted in the Report and Order will 
not directly affect a substantial number of small entities.  Therefore, we certify that the requirements of 
the Report and Order  will not have a significant economic impact on a substantial number of small 
entities.The Commission will send a copy of the Report and Order , including a copy of this Final 
Regulatory Flexibility Certification, in a report to Congress pursuant to the Congressional Review Act.17  
In addition, the Report and Order  and this final certification will be sent to the Chief Counsel for 
Advocacy of the SBA, and will be published in the Federal Register.18  
 
  
                                                     
12 See id.  § 6101. 
13 See id.  § 6201(a). 
14 See id.  § 6201(c) 
15 See id.  § 6302(e)(2). 
16 See  Spectrum Act § 6206(b).  The statute contemplates that portions of the network may be deployed by State 
governments, see  Spectrum Act § 6302(e), which are categorically excluded from the definition of “small 
governmental jurisdictions” for purposes of RFA.  
17 See  5 U.S.C. § 801(a)(1)(A). 
18 See  id .  § 605(b). 
 Federal Communications Commission "FCC  XX-XXX"  
 
APPENDIX D 
List of Commenting Parties 
Department of Management Services, Division of Telecommunications, The State of Alabama (Alabama) 
The State of Nevada Department of Public Safety, Division of Emergency Management/Homeland 
Security (Nevada) 
Southern Communications Services, Inc. d/b/a SouthernLinc (SouthernLinc) 
The FirstNet Colorado Governing Body (FNCGB) 
Stephen Whitaker (Whitaker) 
Texas Public Safety Broadband Program (Texas) 
Rivada Networks (Rivada) 
APCO International (APCO) 
Commonwealth of Pennsylvania 
NTIA on behalf of the First Responder Network Authority (FirstNet) 
The County of Fairfax, Virginia Department of Information Technology (Fairfax) 
National Association of State Chief Information Officers (NASCIO) 
State of Indiana - Integrated Public Safety Commission (Indiana) 
Illinois Public Safety Broadband Network Working Group, Illinois Emergency Management Agency 
(Illinois) 
Dr. Michael Myers 
DVA Consulting, LLC (DVA) 
Sam Leslie, W4PK 
AT&T 
National Regional Planning Council (NRPC)