First Responder Network Authority; Final Interpretations of Parts of the Middle Class Tax Relief and Job Creation Act of 2012, 63523-63533 [2015-26621]

Agencies

• DEPARTMENT OF COMMERCE
• National Telecommunications and Information Administration

[Federal Register Volume 80, Number 202 (Tuesday, October 20, 2015)]
[Notices]
[Pages 63523-63533]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-26621]


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DEPARTMENT OF COMMERCE

National Telecommunications and Information Administration

[Docket Number: 140821696-5908-04]
RIN 0660-XC012


First Responder Network Authority; Final Interpretations of Parts 
of the Middle Class Tax Relief and Job Creation Act of 2012

AGENCY: First Responder Network Authority, National Telecommunications 
and Information Administration, U.S. Department of Commerce.

ACTION: Notice; final interpretations.

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SUMMARY: The First Responder Network Authority (``FirstNet'') publishes 
this Notice to issue final interpretations of its enabling legislation 
that will inform, among other things, forthcoming requests for 
proposals, interpretive rules, and network policies. The purpose of 
this Notice is to provide stakeholders FirstNet's interpretations on 
many of the key preliminary interpretations presented in the proposed 
interpretations published on September 24, 2014.

DATES: Effective October 20, 2015.

FOR FURTHER INFORMATION CONTACT: Eli Veenendaal, First Responder 
Network Authority, National Telecommunications and Information 
Administration, U.S. Department of Commerce, 12201 Sunrise Valley 
Drive, M/S 243, Reston, VA 20192; 703-648-4167; or 
elijah.veenendaal@firstnet.gov.

SUPPLEMENTARY INFORMATION:

I. Introduction and Background

    The Middle Class Tax Relief and Job Creation Act of 2012 (Pub. L. 
112-96, Title VI, 126 Stat. 256 (codified at 47 U.S.C. 1401 et seq.)) 
(the ``Act'') established the First Responder Network Authority 
(``FirstNet'') as an independent authority within the National 
Telecommunications and Information Administration (``NTIA''). The Act 
establishes FirstNet's duty and responsibility to take all actions 
necessary to ensure the building, deployment, and operation of a 
nationwide public safety broadband network (``NPSBN'').\1\
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    \1\ 47 U.S.C. 1426(b).
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    One of FirstNet's initial steps in carrying out this responsibility 
under the Act is the issuance of open, transparent, and competitive 
requests for proposals (``RFPs'') for the purposes of building, 
operating, and maintaining the network. We have sought--and will 
continue to seek--public comments on many technical and economic 
aspects of these RFPs through traditional procurement processes, 
including requests for information (``RFIs'') and potential draft RFPs 
and Special Notices, prior to issuance of RFPs.\2\
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    \2\ The pronouns ``we'' or ``our'' throughout this Notice refer 
to ``FirstNet'' alone and not FirstNet, NTIA, and the U.S. 
Department of Commerce as a collective group.
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    As a newly created entity, however, we are also confronted with 
many complex legal issues of first impression under the Act that will 
have a material impact on the RFPs, responsive proposals, and our 
operations going forward. Generally, the Administrative Procedure Act 
(``APA'') \3\ provides the basic framework of administrative law 
governing agency action, including the procedural steps that must 
precede the effective promulgation, amendment, or repeal of a rule by a 
federal agency.\4\ However, 47 U.S.C. 1426(d)(2) provides that any 
action taken or decision made by FirstNet is exempt from the 
requirements of the APA.
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    \3\ See 5 U.S.C. 551-59, 701-06, 1305, 3105, 3344, 5372, 7521.
    \4\ See 5 U.S.C. 551-559. The APA defines a ``rule'' as ``the 
whole or a part of an agency statement of general or particular 
applicability and future effect designed to implement, interpret, or 
prescribe law or policy or describing the organization, procedure, 
or practice requirements of an agency and includes the approval or 
prescription for the future of rates, wages, corporate or financial 
structures or reorganizations thereof, prices, facilities, 
appliances, services or allowances therefor or of valuations, costs, 
or accounting, or practices bearing on any of the foregoing.'' 5 
U.S.C. 551(4).
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    Nevertheless, although exempted from these procedural requirements, 
on September 24, 2014, FirstNet published a public notice entitled 
``Proposed Interpretations of Parts of the Middle Class Tax Relief and 
Job Creation Act of 2012'' (hereinafter ``the First Notice''),\5\ 
seeking public comments on preliminary interpretations, as well as 
technical and economic issues, on certain foundational legal issues to 
help guide our efforts in achieving our mission.
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    \5\ 79 FR 57058 (September 24, 2014).
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    The purpose of this Notice is to provide stakeholders notice of the 
final legal interpretations on many of the key preliminary 
interpretations presented in the First Notice. Additional background 
and rationale for this action and explanations of FirstNet's 
interpretations were included in the First Notice and are not repeated 
herein. The section immediately below labeled ``Final Interpretations'' 
summarizes FirstNet's final interpretations with respect to the First 
Notice. Thereafter, the section labeled ``Response to Comments'' 
summarizes the comments

[[Page 63524]]

received on the preliminary interpretations contained in the First 
Notice and provides FirstNet's responses to such comments, including 
further explanations and any changes to FirstNet's interpretations.

II. Final Interpretations

A. FirstNet Network

Final Definitions of Core Network and Radio Access Network
    1. FirstNet defines the core network in accordance with 47 U.S.C. 
1422(b) of the Act, relevant sections of the Interoperability Board 
Report, and commercial standards, as including, without limitation, the 
standard Evolved Packet Core elements under the 3rd Generation 
Partnership Project (``3GPP'') standards (including the Serving and 
Packet Data Network Gateways, Mobility Management Entity, Home 
Subscriber Server, and the Policy and Charging Rules Function), device 
services, location services, billing functions, and all other network 
elements and functions other than the radio access network.
    2. FirstNet defines the radio access network in accordance with 47 
U.S.C. 1422(b) of the Act, commercial standards, and the relevant 
sections of the Interoperability Board Report, as consisting of the 
standard E-UTRAN elements (e.g., the eNodeB) and including, but not 
limited to, backhaul to FirstNet designated consolidation points.
    3. FirstNet concludes that a State choosing to conduct its own 
deployment of a radio access network under 47 U.S.C. 1442(e) must use 
the FirstNet core network to provide public safety services within the 
State.

B. Users

Network Users
    4. FirstNet defines a ``secondary user'' as any user that seeks 
access to or use of the NPSBN for non-public safety services.
Prohibition on Providing Commercial Services to Consumers
    5. The definition of ``consumers'' as used in 47 U.S.C. 1432 does 
not include:
    a. any public safety entity as defined in the Act;
    b. States when seeking access to or use of the core network, 
equipment, or infrastructure; or
    c. entities when seeking access to or use of equipment or 
infrastructure.
    6. The language of the Act under 47 U.S.C. 1432 prohibiting 
FirstNet from directly serving ``consumers'' does not limit potential 
types of public safety entities that may use or access the NPSBN for 
commercial telecommunications or information services.
    7. The Act under 47 U.S.C. 1432 does not prohibit or act as a limit 
on secondary users with which FirstNet may enter into a covered leasing 
agreement.
    8. The Act under 47 U.S.C. 1432 does not limit the pool of 
secondary users that may gain access to or use of the network on a 
secondary basis.

C. Requests for Proposals

Requests for Proposals Process
    9. FirstNet, to the extent it utilizes the FAR, concludes that 
complying with the FAR satisfies the open, transparent, and competitive 
requirements of 47 U.S.C. 1426(b)(1)(B).
Minimum Technical Requirements
    10. FirstNet concludes that it may make non-material changes or 
additions/subtractions to the minimal technical requirements developed 
by the Interoperability Board, including as necessary to accommodate 
advancements in technology as required by the Act.
Final Definition of ``Rural''
    11. FirstNet defines ``rural,'' for the purposes of the Act, as 
having the same meaning as ``rural area'' in Section 601(b)(3) of the 
Rural Electrification Act of 1936, as amended (``Rural Electrification 
Act''). Section 601(b)(3) of the Rural Electrification Act provides 
that ``[t]he term `rural area' means any area other than--(i) an area 
described in clause (i) or (ii) of Section 1991(a)(13)(A) of this title 
[section 343(a)(13)(A) of the Consolidated Farm and Rural Development 
Act]; and (ii) a city, town, or incorporated area that has a population 
of greater than 20,000 inhabitants.'' In turn, the relevant portion of 
Section 343(a)(13)(A) of the Consolidated Farm and Rural Development 
Act explains that the ``terms `rural' and `rural area' mean any area 
other than--(i) a city or town that has a population of greater than 
50,000 inhabitants; and (ii) any urbanized area contiguous and adjacent 
to a city or town described in clause (i).'' Thus, as defined herein, 
the term ``rural'' means any area that is not:
     A city, town, or incorporated area that has a population 
of greater than 20,000 inhabitants
     any urbanized area contiguous and adjacent to a city or 
town that has a population of greater than 50,000 inhabitants
    12. FirstNet concludes that a lower boundary (e.g., ``wilderness,'' 
``frontier'') is not necessary to satisfy its rural coverage 
requirements under the Act, and thus FirstNet does not intend to 
establish any such boundary.
Existing Infrastructure
    13. FirstNet interprets that 47 U.S.C. 1426(b)(1)(B) is intended to 
require FirstNet to encourage, through its requests, that responsive 
proposals leverage existing infrastructure in accordance with the 
provision.
    14. FirstNet interprets 47 U.S.C. 1426(b)(3) as requiring FirstNet 
to include in its RFPs that such proposals leverage partnerships with 
commercial mobile providers where economically desirable.
    15. FirstNet concludes that factors other than, or in addition to, 
cost may be utilized in assessing whether existing infrastructure is 
``economically desirable,'' including:
    a. infrastructure type/characteristics
    b. security (physical, network, cyber, etc.)
    c. suitability/viability (ability to readily use, upgrade, and 
maintain)
    d. readiness for reuse (e.g., already in use for wireless 
communications)
    e. scope of use (e.g., range of coverage)
    f. availability/accessibility (time/obstacles to acquiring access/
use)
    g. any use restrictions (e.g., prohibitions/limitations on 
commercial use)
    h. relationships with infrastructure owners/managers (e.g., ease/
difficulty in working with owners/managers)
    i. available alternatives in the area

D. Fees

General
    16. FirstNet interprets each of the fees authorized by the Act, 
including user or subscription fees authorized by 47 U.S.C. 1428(a)(1), 
covered leasing agreement fees authorized by 47 U.S.C. 1428(a)(2), 
lease fees related to network equipment and infrastructure authorized 
by 47 U.S.C. 1428(a)(3), and the fee for State use of elements of the 
core network authorized by 47 U.S.C. 1442(f), as distinct and separate 
from each other and may be assessed individually or cumulatively, as 
applicable.
Network User Fees
    17. FirstNet concludes it may charge a user or subscription fee 
under 47 U.S.C. 1428(a)(1) to any user that seeks access to or use of 
the NPSBN.
State Core Network User Fees
    18. FirstNet concludes that the fees assessed on States assuming 
RAN responsibilities for use of the core network authorized by 47 
U.S.C. 1442(f)

[[Page 63525]]

are distinct from and can be assessed in addition to any other fees 
authorized under the Act.
Lease Fees Related to Network Capacity and Covered Leasing Agreements
    19. FirstNet concludes that a covered leasing agreement under 47 
U.S.C. 1428(a)(2) does not require a secondary user to ``construct, 
manage, and operate'' the entire FirstNet network, either from a 
coverage perspective or exclusively within a specific location.
    20. FirstNet concludes that multiple covered leasing agreement 
lessees could coexist and be permitted access to excess network 
capacity in a particular geographic area.
    21. FirstNet interprets that a covered leasing agreement lessee 
satisfies the definition under 47 U.S.C. 1428(a)(2) so long as the 
lessee does more than a nominal amount of constructing, managing, or 
operating the network.
    22. FirstNet concludes that an entity entering into a covered 
leasing agreement under 47 U.S.C. 1428(a)(2) is not required to perform 
all three functions of constructing, managing, and operating a portion 
of the network, so long as one of the three is performed as part of the 
covered leasing agreement.
    23. FirstNet interprets the reference to ``network capacity'' in 
the definition of covered leasing agreement under 47 U.S.C. 
1428(a)(2)(B)(i) as a generic statement referring to the combination of 
spectrum and network elements, as defined by the Act, and including the 
core network as well as the radio access network of either FirstNet 
alone or that of the secondary user under a covered leasing agreement, 
whereby the core and radio access network are used for serving both 
FirstNet public safety entities and the secondary user's commercial 
customers.
    24. FirstNet interprets the term ``secondary basis'' under 47 
U.S.C. 1428(a)(2)(B)(i) to mean that network capacity will be available 
to the secondary user unless it is needed for public safety entities as 
defined in the Act.
    25. FirstNet interprets the phrase ``spectrum allocated to such 
entity'' found in 47 U.S. Sec.  1428(a)(2)(B)(ii) as allowing all or a 
portion of the spectrum licensed to FirstNet by the Federal 
Communications Commission (``FCC'') under call sign ``WQQE234'' to be 
allocated for use on a secondary basis under a covered leasing 
agreement.
    26. FirstNet concludes that the reference to ``dark fiber'' in 47 
U.S.C. 1428(a)(2)(B)(ii) cannot literally be interpreted as such, and 
the reference should be interpreted to allow the covered leasing 
agreement lessee to transport such traffic on otherwise previously dark 
fiber facilities.
Network Equipment and Infrastructure Fee
    27. FirstNet interprets 47 U.S.C. 1428(a)(3) as being limited to 
the imposition of a fee for the use of static or isolated equipment or 
infrastructure, such as antennas or towers, rather than for use of 
FirstNet spectrum or access to network capacity.
    28. FirstNet interprets the phrase ``constructed or otherwise owned 
by [FirstNet]'' under 47 U.S.C. 1428(a)(3) as meaning that FirstNet 
ordered or required the construction of such equipment or 
infrastructure, paid for such construction, simply owns such equipment, 
or does not own but, through a contract has rights to sublease access 
to, or use of, such equipment or infrastructure.

III. Response to Comments

    FirstNet received 63 written comments to the First Notice from 
various stakeholders, including States, tribes, public safety 
organizations, commercial carriers, equipment vendors, utilities, and 
various associations. Comments on the First Notice included a large 
number of identical or similar written comments as well as oral 
statements made during meetings with FirstNet. FirstNet has carefully 
considered each of the comments submitted. It has grouped and 
summarized the comments according to common themes and has responded 
accordingly. All written comments can be found at www.regulations.gov.

A. FirstNet Network

1. Final Definitions of Core Network and Radio Access Network
    The Act requires FirstNet to ``ensure the establishment of a 
nationwide, interoperable public safety broadband network'' that is 
``based on a single national network architecture.'' \6\ This national 
network architecture must be capable of evolving with technological 
advancements and initially consists of two primary network components: 
A core network and a radio access network.\7\ The Act defines the 
``core network'' as consisting of ``the national and regional data 
centers, and other elements and functions that may be distributed 
geographically . . . and provid[ing] connectivity between (i) the radio 
access network; and (ii) the public Internet or public switched 
network, or both . . . .'' \8\ Comparably, the Act defines the ``radio 
access network'' as consisting of ``all cell site equipment, antennas, 
and backhaul equipment . . . that are required to enable wireless 
communications with devices using the public safety broadband spectrum 
. . . .'' \9\
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    \6\ 47 U.S.C. 1422.
    \7\ 47 U.S.C. 1422(b).
    \8\ 47 U.S.C. 1422(b)(1).
    \9\ 47 U.S.C. 1422(b)(2)(B).
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    In the First Notice, FirstNet made preliminary interpretations 
further describing the scope of the definitions of the core network and 
RAN. Although the vast majority of commenters agreed with the 
interpretations, some expressed concerns that many of the key elements 
of the network were either not referenced or did not meet the criteria 
described in the proposed definitions. In response to these comments, 
FirstNet has slightly modified its preliminary interpretation of the 
``core network'' to include the Mobility Management Entity within the 
Evolved Packet Core elements under the 3GPP standards and its 
preliminary interpretation of ``radio access network'' to include 
backhaul to FirstNet designated consolidation points. Accordingly, 
FirstNet makes the following final interpretations related to the 
definitions of the core network and radio access network under the Act.
    (1) FirstNet defines the core network in accordance with 47 U.S.C. 
1422(b) of the Act, relevant sections of the Interoperability Board 
Report, and commercial standards, as including, without limitation, the 
standard Evolved Packet Core elements under the 3GPP standards 
(including the Serving and Packet Data Network Gateways, Mobility 
Management Entity, Home Subscriber Server, and the Policy and Charging 
Rules Function), device services, location services, billing functions, 
and all other network elements and functions other than the radio 
access network.
    (2) FirstNet defines the radio access network in accordance with 47 
U.S.C. 1422(b) of the Act, commercial standards, and the relevant 
sections of the Interoperability Board Report, as consisting of the 
standard E-UTRAN elements (e.g., the eNodeB) and including, but not 
limited to, backhaul to FirstNet designated consolidation points.
Analysis of and Responses to Comments on Definition of Core Network and 
Radio Access Network
    Summary: The majority of commenters agreed with FirstNet's proposed 
definitions of ``core network'' and ``radio access network'' and 
supported FirstNet considering

[[Page 63526]]

commercial standards, as well as the relevant sections of the 
Interoperability Board Report and relevant 3GPP standards, to provide 
further clarity around the elements and functions of the core network 
and radio access network.
    Comment #1: A few commenters suggested that FirstNet simply use the 
definitions of the terms ``core network'' and ``radio access network'' 
that are provided in the statute. For example, one commenter 
recommended FirstNet use its wide discretion to consider other 
interpretations as it carries out its responsibilities to implement 
these network components and not use the Interoperability Board Report 
to help derive any legal interpretations of the Act.
    Response: FirstNet agrees that the Act provides it with broad 
discretion to carry out its mission. In view of that discretion, 
FirstNet has determined that it is important to provide additional 
clarity around certain delineation points between the core network and 
RAN as defined in the Act. These delineation points become especially 
important in light of the provisions of 47 U.S.C. 1442(e) that allow a 
State the opportunity, under certain conditions, to conduct the 
deployment of a RAN within that State and require that State to pay a 
fee for use of elements of the core network. In response to the 
specific example, the Act commissioned the development of the 
Interoperability Board Report to provide recommended technical 
requirements to ensure a nationwide level of interoperability for the 
NPSBN.\10\ Under the Act, these recommendations are intended to be used 
by FirstNet to help develop and maintain the NPSBN.\11\ Moreover, a 
State choosing to assume RAN responsibilities must demonstrate 
compliance with the minimum technical interoperability requirements of 
the Interoperability Board Report in order to receive approval of an 
alternative RAN plan.\12\ Based on these provisions, FirstNet believes 
that it is important to give credence to the relevant sections of the 
Interoperability Board Report that relate to the definitions of the 
core network and RAN.
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    \10\ See 47 U.S.C. 1423(c).
    \11\ See id.
    \12\ See 47 U.S.C. 1442(e)(3)(C)(i).
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    Comment #2: One commenter suggested the proposed definition of the 
core network is too expansive and recommended that FirstNet remove the 
language ``device services'' and ``all other network elements and 
functions other than the radio access network'' from its proposed 
definition of the core network.
    Response: FirstNet disagrees that the proposed definition of core 
network is too expansive and believes its proposed interpretation, 
including the language ``device services'' and ``all other network 
elements and functions other than the radio access network,'' is 
consistent with both the intent of the Act as well as commercially 
accepted standards for elements generally comprising a core network. 
Additionally, FirstNet's inclusion of these terms and phrases in its 
interpretation assist in providing clarity relating to the definitions 
of core network and RAN that are critical to establishing the NPSBN and 
providing the scope of responsibility a State will assume should it 
decide to conduct its own RAN deployment. In delivering a plan to a 
Governor for a determination of whether to assume responsibilities for 
RAN construction, FirstNet must delineate between what elements of the 
network in the proposed plan comprise the core network versus the 
elements that comprise the RAN. Accordingly, an understanding of the 
elements that make up the core network and RAN are critical for a 
Governor to make an effective determination about whether the State 
should have FirstNet conduct the RAN deployment or seek to conduct its 
own RAN deployment.
    Comment #3: One commenter expressed concern that the proposed 
definitions conflate issues of policy and technology and suggested 
FirstNet avoid rigid definitions of ``core network'' or ``radio access 
network'' and align their technical and business development efforts 
with standards that evolve with the long term evolution (``LTE'') 
broadband network.
    Response: FirstNet acknowledges the comment, but believes its 
proposed definitions of core network and RAN provide additional 
certainty that is necessary in order to build, operate, and maintain 
the NPSBN, while, at the same time, preserving, as contemplated by the 
Act, the necessary flexibility to take into account new and evolving 
technological advancements. For example, FirstNet's interpretations of 
both the core network and RAN are inclusive of the language of 47 
U.S.C. 1422(b) that specifically states the national architecture must 
``evolve[] with technological advancements and initially consists of'' 
the stated core network and RAN components.\13\ The use of the term 
``initially'' and the phrase ``evolve with technological advancements'' 
in 47 U.S.C. 1422(b) indicate that Congress understood that the 
definitions of the core network and RAN could not be static. Rather, 
the definitions of such terms would need to be modified throughout the 
life of the network in order to help ensure that public safety would 
have a network capable of supporting and providing access to new and 
evolving technologies.
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    \13\ 47 U.S.C. 1422(b) (emphasis added).
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    Comment #4: Several commenters, although not disagreeing with the 
proposed definitions, expressed concerns that many of the key elements 
of the network were either not referenced or did not meet the criteria 
described in the proposed core network and radio access network 
definitions. To illustrate this point, multiple commenters reasoned 
that backhaul transport connecting the radio access network with the 
core network or the backhaul connecting the core network with 
geographically distributed databases and application servers, which are 
critical components of network integration, need to be addressed in the 
definitions.
    Response: FirstNet acknowledges the comments and has modified its 
interpretation of the ``core network'' to include the Mobility 
Management Entity within the Evolved Packet Core elements under the 
3GPP standards and its interpretation of ``radio access network'' to 
include backhaul to FirstNet designated consolidation points. To the 
extent additional clarity is necessary to provide, for example, more 
specific demarcation points or the services and facilities that will be 
provided by the various network elements, FirstNet intends to address 
such matters, as appropriate, in the development of relevant network 
policies.
2. State Radio Access Networks Must Use the FirstNet Core Network
    As discussed above, the Act charges FirstNet with the duty to 
``ensure the establishment of a nationwide, interoperable public safety 
broadband network . . . based on a single, national network 
architecture'' and defines the architecture of the network as initially 
consisting of a ``core network'' and a ``radio access network.'' \14\ 
In addition, FirstNet is required to take all actions necessary to 
ensure the building, deployment, and operation of the network, 
including issuing RFPs for the purposes of building, operating, and 
maintaining the network.\15\ Thus, overall, FirstNet is responsible for 
ensuring the core network and radio access network--subject to a 
State's

[[Page 63527]]

ability to assume RAN responsibilities under 47 U.S.C. 1442--is built, 
deployed, and operated throughout the country.
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    \14\ 47 U.S.C. 1422.
    \15\ 47 U.S.C. 1426(b).
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    As analyzed in the First Notice, the Act, although providing each 
State an opportunity to choose to conduct its own deployment of a RAN 
in such State, does not provide for State deployment of a core network 
separate from the core network that FirstNet is charged with 
deploying.\16\ Rather, according to the express language of the Act, 
FirstNet, is the only entity responsible for constructing a core 
network. This interpretation is further supported by the mandate that 
States that choose to build their own RAN must pay any user fees 
associated with such State's use of ``the core network.'' \17\ Thus, 
based on the language of and overall interoperability goals of the Act, 
FirstNet makes the following conclusion related to State use of the 
core network that is constructed, operated, and maintained by FirstNet.
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    \16\ See 47 U.S.C. 1422, 1426.
    \17\ 47 U.S.C. 1442(f).
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    FirstNet concludes that a State choosing to conduct its own 
deployment of a radio access network under 47 U.S.C. 1442(e) must use 
the FirstNet core network to provide public safety services within the 
State.
Analysis of and Responses to Comments to Conclusions That State Radio 
Access Networks Must Use the FirstNet Core Network
    Summary: The majority of commenters agreed with FirstNet's proposed 
interpretation that a State choosing to conduct its own deployment of a 
radio access network must use the FirstNet core network to provide 
services to public safety entities.
    Comment #5: One commenter did not support FirstNet's preliminary 
conclusion, asserting that direct connectivity between the core network 
and the RAN is excluded from FirstNet's definitions and that such 
network element should be explicitly identified and included either in 
the definition of core network or radio access network.
    Response: FirstNet acknowledges the comment and notes that, as 
detailed above, it has clarified the definition of RAN to include 
backhaul to FirstNet consolidation points.
    Comment #6: One commenter agreed with the interpretation, but 
suggested FirstNet should remain open to the concept of a local ``back-
up'' core network, particularly for States or localities with a high 
population density, with this ``back-up'' core network being designed 
and purposed to protect against a total loss of connectivity to the 
FirstNet nationwide core network.
    Response: The Act requires FirstNet to establish a network with 
adequate hardening, security, reliability, and resiliency requirements, 
including by addressing special considerations for areas and regions 
with unique homeland security or national security needs.\18\ 
Accordingly, FirstNet intends to construct the core network taking into 
account these considerations and does not anticipate the need to 
utilize a local ``back-up'' core network to serve public safety, which, 
among other things, potentially creates interoperability complexities 
and increases network security risks.
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    \18\ See 47 U.S.C. 1426(b)(2), (c)(2)(A).
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B. Network Users

1. Final Definition of ``Secondary Users''
    The Act in 47 U.S.C. 1428(a)(1) authorizes FirstNet to charge 
``user or subscription'' fees to a ``secondary user . . . that seeks 
access to or use of the [NPSBN].'' Additionally, under 47 U.S.C. 
1428(a)(2), FirstNet may enter into a covered leasing agreement with a 
``secondary user'' that permits ``access to network capacity on a 
secondary basis for non-public safety purposes.'' \19\ The Act does not 
expressly define the term ``secondary user.'' However, based on the 
plain language of 47 U.S.C. 1428, FirstNet reaches the following 
conclusion with respect to the meaning of ``secondary user'':
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    \19\ 47 U.S.C. 1428(a)(2).
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    FirstNet defines a ``secondary user'' as any user that seeks access 
to or use of the NPSBN for non-public safety services.
Analysis of and Responses to Comments on Definition of Secondary User
    Summary: The majority of commenters agreed with the interpretation 
of a ``secondary user'' as a user that accesses network capacity on a 
secondary basis for non-public safety services. One such commenter 
noted that while secondary users are not public safety entities, they 
are important to the financial sustainability of the network. 
Similarly, another commenter remarked that such non-public safety 
secondary users are necessary to implement a sophisticated and 
expansive network.
    Comment #7: One commenter expressed concern that FirstNet's 
proposed definition, as formulated, could be misconstrued and sought to 
clarify that ``secondary user'' captures those using the NPSBN for 
services that are not related to public safety.
    Response: FirstNet has attempted to clearly state in its final 
definition of ``secondary user'' (identified above) that such term 
refers to those users who access the NPSBN only for non-public safety 
services.
    Comment #8: One commenter expressed concern not about FirstNet's 
definition of ``secondary user,'' but about the potential for secondary 
users to adversely impact the performance of the NPSBN at the expense 
of public safety.
    Response: FirstNet is committed to ensuring the establishment of a 
network that meets the needs of public safety and believes that the 20 
MHz of available spectrum along with the expected priority/preemption 
capabilities of the network will allow secondary users to access the 
NPSBN without negatively impacting public safety's use of the NPSBN.
    Comment #9: One commenter asserted that any user of the NPSBN that 
is not a ``public safety entity'' should be considered a ``consumer'' 
rather than a ``secondary user.'' These ``consumers'' would use the 
network on a secondary basis and yield to the primary user public 
safety entities.
    Response: While FirstNet certainly agrees with the general concept 
of public safety entities being the primary users of the NPSBN, we do 
not agree that the term ``consumer'' (which is also undefined in the 
Act) encompasses all other such users of the network on a secondary 
basis. First, the Act explicitly uses the term ``secondary user'' when 
referring to those entities or individuals that access or use the 
network ``on a secondary basis for non-public safety services.'' \20\ 
Secondly, this use of the term ``consumer'' is inconsistent with 47 
U.S.C. 1432, which prohibits FirstNet from providing ``commercial 
telecommunications or information services directly to consumers.'' 
Under 47 U.S.C. 1428, FirstNet is expressly authorized to assess a 
network user fee on secondary users. Thus, given the Act prohibits 
FirstNet from providing certain services directly to consumers while it 
permits FirstNet to charge user fees to secondary users, by definition 
all secondary users cannot be consumers.
---------------------------------------------------------------------------

    \20\ 47 U.S.C. 1428(a).
---------------------------------------------------------------------------

2. Prohibition on Providing Commercial Services to Consumers
    The Act in 47 U.S.C. 1432(a) specifies that FirstNet ``shall not 
offer, provide, or market commercial telecommunications or information 
services directly to consumers.'' The Act does not define

[[Page 63528]]

the word ``consumer'' or indicate whether the word is limited to 
individuals or includes organizations and businesses. In addition, 
under the rule of construction specified in 47 U.S.C. 1432(b), nothing 
in 47 U.S.C. 1432(a) is intended to prohibit FirstNet from entering 
into covered leasing agreements with secondary users or to limit 
FirstNet from collecting lease fees for the use of network equipment 
and infrastructure. FirstNet makes the following conclusions with 
respect to these provisions of the Act:
    (1) The definition of ``consumers'' as used in 47 U.S.C. 1432 does 
not include:
    a. Any public safety entity as defined in the Act;
    b. States when seeking access to or use of the core network, 
equipment, or infrastructure; or
    c. entities when seeking access to or use of equipment and 
infrastructure.
    (2) The language of the Act under 47 U.S.C. 1432 prohibiting 
FirstNet from directly serving ``consumers'' does not limit potential 
types of public safety entities that may use or access the NPSBN for 
commercial telecommunications or information services.
    (3) The Act under 47 U.S.C. 1432 does not prohibit or act as a 
limit on secondary users with which FirstNet may enter into a covered 
leasing agreement.
    (4) The Act under 47 U.S.C. 1432 does not limit the pool of 
secondary users that may gain access to or use of the network on a 
secondary basis.
Analysis of and Responses to Comments on Prohibition on Providing 
Commercial Services to Consumers
    Summary: The vast majority of commenters supported FirstNet's 
conclusions that the prohibition in 47 U.S.C. 1432 on FirstNet 
offering, providing, or marketing commercial telecommunications or 
information services to consumers does not apply to public safety 
entities, secondary users, States seeking access to or use of the 
FirstNet core network, or entities or States seeking access to or use 
of network equipment and infrastructure. These commenters agreed that 
the intent of this provision, whether explicit or implicit, is to 
exclude these entities from the definition of consumer.
    Comment #10: One commenter, while not disagreeing with FirstNet's 
conclusions, expressed concern regarding the potential for network 
capacity to become saturated from non-public safety use.
    Response: As noted above, FirstNet is committed to ensuring the 
establishment of a network that meets the needs of public safety and 
believes that the 20 MHz of available spectrum along with the expected 
priority/preemption capabilities of the network will allow secondary 
users to access the NPSBN without negatively impacting public safety's 
use of the NPSBN.

C. Requests for Proposals

1. Requests for Proposals Process
    The Act in 47 U.S.C. 1426(b)(1)(B) requires FirstNet to issue 
``open, transparent, and competitive'' RFPs. The procedural 
requirements for issuing such RFPs to meet the ``open, transparent, and 
competitive'' standard, however, are not defined in the Act. The 
Federal Acquisition Regulation (``FAR''), codified in 48 CFR parts 1-
99, is the primary regulation used by federal executive agencies in 
their acquisition of supplies and services with appropriated funds. 
Thus, FirstNet makes the following conclusion with respect to its 
compliance with this provision:
    FirstNet, to the extent it utilizes the FAR, concludes that 
complying with the FAR satisfies the open, transparent, and competitive 
requirements of 47 U.S.C. 1426(b)(1)(B).
Analysis of and Responses to Comments on Requests for Proposals
    Summary: The overwhelming majority of commenters agreed with 
FirstNet's proposed interpretation that using the FAR satisfies 
FirstNet's statutory obligation to issue ``open, transparent, and 
competitive requests for proposals to private sector entities for the 
purposes of building, operating, and maintaining the network . . . '' 
In addition to commenting that compliance with the FAR is a reasonable 
way of meeting the Act's requirements for an ``open, transparent, and 
competitive'' RFP process, commenters noted that the FAR is a well 
understood process, and that by using it, FirstNet will save time by 
not having to develop a new process for issuing RFPs. Given the size 
and scope of FirstNet's task, commenters agreed that using the FAR was 
the most logical option. Some commenters agreed with using the FAR 
generally, but encouraged the use of only certain sections.
    Comment #11: Some commenters suggested that FirstNet exceed the 
FAR's requirements and reminded FirstNet of its authority to make 
agreements with States to use existing infrastructure.
    Response: FirstNet believes that using the FAR satisfies the Act's 
requirements. FAR Part 1.102 provides guiding principles of the Federal 
Acquisition System, namely ``promoting competition, and conducting 
business with integrity, fairness and openness.'' The policies and 
procedures of the FAR embody these principles. Adherence to the FAR, 
therefore, ensures compliance with the Act's mandate to issue ``open, 
transparent, and competitive'' RFPs. With respect to existing 
infrastructure, FirstNet plans to leverage such assets for the NPSBN to 
the extent it is economically desirable, as required by the Act (see 
below for a further discussion regarding existing infrastructure).
    Comment #12: One commenter disagreed with FirstNet's proposed 
interpretation, observing that the guidance in 47 U.S.C. 1426(b)(1)(B) 
would be unnecessary if Congress intended FirstNet to comply with the 
FAR, and that there is not a single reference to the FAR in the Act, 
despite the extensive statutory guidance the Act provides to FirstNet 
concerning the RFP process.
    Response: FirstNet acknowledges this comment and notes that its 
final conclusion is not that FirstNet believes it is required to use 
the FAR. Rather, FirstNet's interpretation merely is that by complying 
with the FAR, FirstNet is complying with this provision of the Act.
2. Minimum Technical Requirements
    47 U.S.C. 1426(b)(1)(B) requires FirstNet to issue RFPs for the 
purposes of building, operating, and maintaining the network that use, 
without materially changing, the minimum technical requirements 
developed by the Interoperability Board. 47 U.S.C. 1422(b) and 47 
U.S.C. 1426(c)(4) further obligate FirstNet to accommodate advancements 
in technology.\21\ With respect to these provisions, FirstNet makes the 
following final interpretation:
---------------------------------------------------------------------------

    \21\ Note that the Interoperability Board Report states that 
``[g]iven that technology evolves rapidly, the network components 
and associated interfaces identified in the [Interoperability Board 
Report] . . . are also expected to evolve over time. As such, these 
aspects of the present document are intended to represent a state-
of-the-art snapshot at the time of writing. In this context, the 
standards, functions, and interfaces referenced in the present 
document are intended to prescribe statements of intent. Variations 
or substitutions are expected to accommodate technological evolution 
consistent with the evolution of 3GPP and other applicable 
standards.'' Interoperability Board, Recommended Minimum Technical 
Requirements to Ensure Nationwide Interoperability for the 
Nationwide Public Safety Broadband Network at 27 (May 22, 2012), 
available at https://apps.fcc.gov/ecfs/document/view?id=7021919873.
---------------------------------------------------------------------------

    FirstNet concludes that it may make non-material changes or 
additions/subtractions to the minimal technical requirements developed 
by the

[[Page 63529]]

Interoperability Board, including as necessary to accommodate 
advancements in technology as required by the Act.
Analysis of and Responses to Comments on Minimum Technical Requirements
    Summary: Commenters were virtually unanimous in agreeing with 
FirstNet's proposed interpretation regarding changes to the minimum 
technical requirements established by the Interoperability Board. 
Several commenters reasoned that such changes are necessary and fully 
contemplated (by Congress and the Interoperability Board itself) in 
order to keep pace with evolutions in technology, address issues that 
the Interoperability Board may not have considered, and fulfill 
requirements under the Act.
    Comment #13: One commenter maintained that the minimum technical 
requirements developed by the Interoperability Board are so fundamental 
that they should be utilized in their entirety regardless of 
advancements in technology.
    Response: FirstNet fully appreciates the value of the minimum 
technical requirements developed by the Interoperability Board and the 
critical role such requirements will have in the development and 
maintenance of the NPSBN. However, at the same time, FirstNet seeks to 
ensure that the most robust and technologically advanced network as 
possible is established for public safety in accordance with its 
statutory mission, and FirstNet is specifically directed by the Act to 
consider advancements in technology in the development and maintenance 
of the NPSBN.\22\ Accordingly, FirstNet intends to operate with those 
principles and directives in mind in forming the technical requirements 
for the network.
---------------------------------------------------------------------------

    \22\ See 47 U.S.C. 1422(b), 1426(c)(4).
---------------------------------------------------------------------------

    Comment #14: Multiple commenters urged FirstNet to use open 
standards in the implementation of advancements in technology, focusing 
on 3GPP architecture and interfaces that ensure operability, 
interoperability, and backwards compatibility. Some of these commenters 
pointed out that the Interoperability Board Report contemplates 
advancements in technology and supports the open standards process.
    Response: This comment is outside the scope of this notice. 
However, FirstNet acknowledges this recommendation and will consider it 
as any applicable decisions are developed on the matter. We note that 
the Act requires that the NPSBN be based on commercial standards, 
including those developed by 3GPP and that comply with the 
Interoperability Board Report.
    Comment #15: A few commenters suggested that FirstNet rely on the 
Interoperability Board or a similar independent technical advisory 
board going forward to establish and maintain ongoing minimum technical 
requirements and compliance with those requirements, in light of 
technological advances.
    Response: This comment is outside the scope of this notice. 
However, FirstNet acknowledges this recommendation and will consider it 
as any applicable decisions are developed on the matter.
    Comment #16: Some commenters offered input as to what delineates 
non-material versus material changes in the minimum technical 
requirements. Most commenters focused on critical features or functions 
being backwards compatible, as well as avoiding any reduction in the 
quality of mission critical service to end users.
    Response: FirstNet acknowledges these recommendations and will 
consider them as any applicable decisions are developed on the matter. 
FirstNet's goal is to ensure that the NPSBN operates in a manner that 
satisfies public safety's critical communication needs and is 
consistent with the material terms of the Interoperability Board 
report.
3. Final Definition of ``Rural''
    The Act directs that FirstNet ``shall require deployment phases 
with substantial rural coverage milestones as part of each phase of the 
construction and deployment of the network . . . [and] utilize cost-
effective opportunities to speed deployment in rural areas.'' \23\ 
Additionally, the Act states, in relevant part, that FirstNet ``shall 
develop . . . requests for proposals with appropriate . . . timetables 
for construction, including by taking into consideration the time 
needed to build out to rural areas.'' \24\ Finally, the Act explains 
that FirstNet ``shall develop . . . requests for proposals with 
appropriate . . . coverage areas, including coverage in rural and 
nonurban areas.'' \25\
---------------------------------------------------------------------------

    \23\ 47 U.S.C. 1426(b)(3) (emphasis added).
    \24\ 47 U.S.C. 1426(c)(1)(A)(i) (emphasis added).
    \25\ 47 U.S.C. 1426(c)(1)(A)(ii) (emphasis added).
---------------------------------------------------------------------------

    Since the Act does not define ``rural,'' we found it necessary to 
define this term in order to fulfill our duties with respect to the 
above noted statutory rural coverage requirements.\26\ Accordingly, 
FirstNet makes the following final interpretation regarding the 
definition of ``rural'' under the Act:
---------------------------------------------------------------------------

    \26\ We appreciate the position the FCC has taken in this 
regard, and we are committed to fulfill our duties in a way that 
will meet these rural coverage requirements. See Implementing Public 
Safety Broadband Provisions of the Middle Class Tax Relief and Job 
Creation Act of 2012 et al., PS Docket 12-94 et al., Notice of 
Proposed Rulemaking, 28 FCC Rcd 2715, 2728-29 ] 46 (2013) (Band 14 
NPRM) (noting that, ``We do not believe the Commission should 
specify rural milestones as a condition of FirstNet's license at 
this time. Rather, we recognize that at this early stage, the 
success of FirstNet requires flexibility with respect to deployment 
and planning, including deployment in rural areas. Moreover, 
FirstNet has an independent legal obligation under the Act to 
develop requests for proposals with appropriate timetables for 
construction, taking into account the time needed to build out in 
rural areas, and coverage areas, including coverage in rural and 
nonurban areas. In addition, in light of the Congressional oversight 
that will be exercised over FirstNet and its other transparency, 
reporting and consultation obligations, we do not believe it is 
necessary for the Commission to set specific benchmarks in this 
regard in these rules.'').
---------------------------------------------------------------------------

    (1) FirstNet defines ``rural,'' for the purposes of the Act, as 
having the same meaning as ``rural area'' in Section 601(b)(3) of the 
Rural Electrification Act of 1936, as amended (``Rural Electrification 
Act'' or ``REA''). Section 601(b)(3) of the Rural Electrification Act 
provides that ``[t]he term `rural area' means any area other than--(i) 
an area described in clause (i) or (ii) of Section 1991(a)(13)(A) of 
this title [section 343(a)(13)(A) of the Consolidated Farm and Rural 
Development Act]; and (ii) a city, town, or incorporated area that has 
a population of greater than 20,000 inhabitants.'' In turn, the 
relevant portion of Section 343(a)(13)(A) of the Consolidated Farm and 
Rural Development Act explains that the ``terms `rural' and `rural 
area' mean any area other than--(i) a city or town that has a 
population of greater than 50,000 inhabitants; and (ii) any urbanized 
area contiguous and adjacent to a city or town described in clause 
(i).'' Thus, as defined herein, the term ``rural'' means any area that 
is not:
     A city, town, or incorporated area that has a population 
of greater than 20,000 inhabitants
     any urbanized area contiguous and adjacent to a city or 
town that has a population of greater than 50,000 inhabitants.
    FirstNet also inquired whether there should be a lower boundary 
separate from the definition of ``rural,'' such as ``wilderness'' or 
``frontier.'' Based in part on the comments received, FirstNet has 
reached the following final conclusion:
    (2) FirstNet concludes that a lower boundary (e.g., ``wilderness,'' 
``frontier'') is not necessary to satisfy its rural coverage 
requirements under the Act, and thus FirstNet does not intend to 
establish any such boundary.

[[Page 63530]]

Analysis of and Responses to Comments on Definition of Rural
    Summary: Several commenters agreed with FirstNet's proposed 
definition of ``rural,'' pointing to the logic in using the Rural 
Electrification Act definition. Many of these commenters noted that the 
Rural Electrification Act definition is widely known and used. Some 
specifically agreed that adopting the Rural Electrification Act 
definition makes sense in light of U.S. Department of Agriculture's 
(``USDA'') use of the definition in the Rural Broadband Access Loan and 
Loan Guarantee Program.
    However, several other commenters disagreed with FirstNet's 
proposed definition of rural, suggesting that the Rural Electrification 
Act definition was inadequate. Multiple commenters expressed concerns 
that the Rural Electrification Act definition would not accurately 
measure or reflect the rural areas of a State.
    Comment #17: One commenter suggested that the geography of a State 
could complicate the Rural Electrification Act's application due to 
many remote, small but densely populated communities and areas without 
any defined government or established limits.
    Response: FirstNet acknowledges this comment and recognizes that 
certain States may not agree that the Rural Electrification Act 
definition (or any other definition for that matter) adequately defines 
rural areas for that State due to unique geographic or other 
circumstances. However, because FirstNet's mission is to ensure the 
establishment of a nationwide public safety broadband network, it is 
necessary to formulate a single, objective definition that can be 
reasonably applied on a national basis. By way of example, the Rural 
Electrification Act definition of ``rural area'' has been adopted by 
other federal agencies in determining rural areas on a national basis, 
including by the USDA in its Rural Broadband Access Loan and Loan 
Guarantee Program, for application nationwide.\27\
---------------------------------------------------------------------------

    \27\ The USDA was designated as the lead federal agency for 
rural development by the Rural Development Policy Act of 1980. See 7 
U.S.C. 2204b.
---------------------------------------------------------------------------

    It is also important to note that the primary purpose of the 
definition of ``rural'' under the Act is to measure whether the 
statutory requirement to include ``substantial rural coverage 
milestones'' in each phase of network deployment has been met. The 
definition does not determine a state or territory's ultimate coverage, 
which instead will be determined by the input obtained through the 
consultation process along with FirstNet's available resources.\28\
---------------------------------------------------------------------------

    \28\ See 47 U.S.C. 1426(c)(2).
---------------------------------------------------------------------------

    Comment #18: Some commenters suggested that FirstNet adopt a 
modified or simplified aggregate population-derived definition 
utilizing various alternative methodologies. Specifically, a couple of 
commenters proposed the use of the U.S. Census Bureau's definition of 
``rural''--i.e., all areas that are not ``urban areas,'' which consist 
of Urbanized Areas (50,000 or more people) and Urban Clusters (at least 
2,500 and less than 50,000 people).
    Response: FirstNet recognizes that there are alternative 
definitions of ``rural'' utilized by other federal and state government 
entities and acknowledges that such definitions could be applied in the 
context of the nationwide public safety broadband network. Consistent 
with its analysis in the First Notice, FirstNet continues to believe, 
however, that the Rural Electrification Act's definition of ``rural 
area'' is sufficiently precise to allow for consistent application, as 
well as widely known and familiar to rural telecommunications 
providers, rural communities, and other stakeholders considering its 
utilization specifically with respect to rural broadband issues. In 
addition, other federal agencies have adopted the Rural Electrification 
Act definition. The USDA, in particular, utilizes this definition in a 
similar context through its implementation of the Rural Broadband 
Access Loan and Loan Guarantee Program, which funds the costs of 
construction, improvement, and acquisition of facilities and equipment 
to provide broadband service to eligible rural areas.
    Comment #19: Another commenter proposed the adoption of the 
definition used by USDA's Rural Business Service, indicating that rural 
areas under such definition are those with 50,000 persons or less 
excluding areas adjacent to communities larger than 50,000 persons.
    Response: See the response to Comment #18 above.
    Comment #20: Based on concerns expressed regarding the omission of 
unincorporated areas and the potential confusion caused by the 
``adjacent and contiguous'' clause in the definition, an additional 
commenter recommended that ``rural'' be defined as a city, town, 
incorporated area, or unincorporated area that has a population of 
20,000 or less.
    Response: FirstNet acknowledges the comment. To provide some 
additional clarity, we note that in identifying cities, towns, 
incorporated areas, and urbanized areas, FirstNet intends to leverage 
the U.S. Census definition of ``places,'' which is inclusive of towns, 
cities, villages, boroughs, and Census Designated Places (CDPs) (which 
in turn are inclusive, at least in part, of unincorporated areas).\29\
---------------------------------------------------------------------------

    \29\ See U.S. Census Bureau, Geographic Terms and Concepts--
Place, https://www.census.gov/geo/reference/gtc/gtc_place.html.
---------------------------------------------------------------------------

    Comment #21: A few commenters advocated for a definition based on 
population density on a per county basis, with varying formulations. 
For instance, one such commenter proposed to define rural as a county 
with a population density of less than 160 persons per square mile, 
while another commenter proffered any county (i) with a population 
density of 100 or fewer inhabitants or (ii) of less than 225 square 
miles. A couple of other commenters suggested using a density of 5/7 to 
159 persons per square mile on a county-by-county basis. Similarly, 
another commenter recommended adopting the definition used by the 
School-to-Work Opportunities program (i.e., a county, block number area 
in a nonmetropolitan county, or consortium of counties or such block 
number areas with a population density of 20 or fewer persons per 
square mile), reasoning that the definition is simple, from a program 
with a comparable process and approach (grant eligibility based on an 
approved State plan, intergovernmental cooperation, seed money for 
initial planning and development of school-to-work transition system), 
more objective, and more accurate in identifying rural areas.
    Response: See the response to Comment #18 above.
    Comment #22: Multiple commenters maintained that instead of 
adopting the Rural Electrification Act (or any other single 
definition), the definition of ``rural'' should be determined on a 
state-by-state basis.
    Response: FirstNet recognizes the Act strikes a balance between 
establishing a nationwide network and providing States an opportunity 
to make certain decisions about local implementation. As noted above, 
however, the primary purpose of the definition of ``rural'' is for 
measuring whether ``substantial rural coverage milestones'' have been 
included in each phase of deployment, which is required on a national 
basis. Thus, as a practical matter, there must be a single, uniform, 
and objective definition of ``rural'' that can be applied nationwide to 
assess whether such milestones have been met by FirstNet deployment.

[[Page 63531]]

4. Existing Infrastructure
    Multiple provisions of the Act direct FirstNet to leverage existing 
infrastructure when ``economically desirable.'' \30\ 47 U.S.C. 
1426(b)(1)(C) requires FirstNet in issuing RFPs to ``encourag[e] that 
such requests leverage, to the maximum extent economically desirable, 
existing commercial wireless infrastructure to speed deployment of the 
network.''
---------------------------------------------------------------------------

    \30\ See 47 U.S.C. 1426(b)(1)(C), (b)(3), (c)(3).
---------------------------------------------------------------------------

    Similarly, 47 U.S.C. 1426(b)(3)--in addressing rural coverage and 
referring to FirstNet's duty and responsibility to issue RFPs--requires 
that ``[t]o the maximum extent economically desirable, such proposals 
shall include partnerships with existing commercial mobile providers to 
utilize cost-effective opportunities to speed deployments in rural 
areas.''
    Finally, 47 U.S.C. 1426(c)(3) requires that in carrying out its 
various requirements related to the deployment and operation of the 
NPSBN, ``the First Responder Network Authority shall enter into 
agreements to utilize, to the maximum extent economically desirable, 
existing (A) commercial or other communications infrastructure; and (B) 
Federal, State, tribal, or local infrastructure.'' The Act, however, 
does not define or establish any criteria for determining economic 
desirability. FirstNet reaches the following conclusions regarding its 
obligations to leverage existing infrastructure under 47 U.S.C. 1426:
    1. FirstNet interprets that 47 U.S.C. 1426(b)(1)(B) is intended to 
require FirstNet to encourage, through its requests, that responsive 
proposals leverage existing infrastructure in accordance with the 
provision.
    2. FirstNet interprets 47 U.S.C. 1426(b)(3) as requiring FirstNet 
to include in its RFPs that such proposals leverage partnerships with 
commercial mobile providers where economically desirable.
    3. FirstNet concludes that factors other than, or in addition to, 
cost may be utilized in assessing whether existing infrastructure is 
``economically desirable,'' including:
    a. Infrastructure type/characteristics
    b. security (physical, network, cyber, etc.)
    c. suitability/viability (ability to readily use, upgrade, and 
maintain)
    d. readiness for reuse (e.g., already in use for wireless 
communications)
    e. scope of use (e.g., range of coverage)
    f. availability/accessibility (time/obstacles to acquiring access/
use)
    g. any use restrictions (e.g., prohibitions/limitations on 
commercial use)
    h. relationships with infrastructure owners/managers (e.g., ease/
difficulty in working with owners/managers)
    i. available alternatives in the area
Analysis of and Responses to Comments on Leveraging Existing 
Infrastructure and Economic Desirability
    Summary: All commenters on the subject agreed with FirstNet's above 
interpretations of 47 U.S.C. 1426(b)(1)(C) and (b)(3) that the 
provisions are intended to require FirstNet to encourage, through its 
RFPs, that such responsive proposals leverage existing infrastructure 
and partnerships where economically desirable. Many of these commenters 
emphasized the importance of utilizing the RFP process to leverage 
existing assets and partnerships to lower costs and increase speed to 
market.
    Comment #23: Some commenters provided input regarding the factors 
to be considered in making an economic desirability determination, 
focusing largely on cost.
    Response: Although FirstNet agrees that cost is a major factor in 
assessing economic desirability, we do not believe it is the sole 
consideration. There are several other factors, as noted above, that 
are critical to making an informed determination as to whether the 
infrastructure should be leveraged. For instance, it is essential to 
understand the infrastructure's suitability for FirstNet's purposes, as 
well as its availability and readiness for use. Likewise, FirstNet's 
financial sustainability model is based in large part on its ability to 
lease excess spectrum capacity to commercial entities for secondary 
use, and thus consideration of any limitations on commercial use of the 
infrastructure is imperative.
    Comment #24: A couple of commenters suggested other factors besides 
cost in making an economic desirability determination of whether to 
leverage infrastructure. One such commenter recommended the 
consideration of geography and breadth of coverage in addition to cost. 
Another commenter urged that the requirements of public safety should 
be considered as a factor.
    Response: FirstNet acknowledges these recommendations and believes 
they are encompassed within FirstNet's final conclusion above regarding 
economic desirability factors.

D. Fees

    FirstNet is required by the Act to be a self-funding entity and has 
been authorized to assess and collect certain fees for use of the 
network.\31\ Specifically, FirstNet has been authorized to assess and 
collect a (1) network user fee; (2) lease fee related to network 
capacity (also known as covered leasing agreement); (3) lease fees 
related to network equipment and infrastructure; and (4) a fee for 
State use of elements of the core network.\32\ In accordance with these 
provisions, FirstNet makes the following conclusions related to both 
the assessment and collection of fees authorized under the Act.
---------------------------------------------------------------------------

    \31\ See 47 U.S.C. 1428, 1442(f); 1426(b)(4)(C).
    \32\ 47 U.S.C. 1428, 1442(f).
---------------------------------------------------------------------------

General
    (1) FirstNet interprets each of the fees authorized by the Act, 
including user or subscription fees authorized by 47 U.S.C. 1428(a)(1), 
covered leasing agreement fees authorized by 47 U.S.C. 1428 (a)(2), 
lease fees related to network equipment and infrastructure authorized 
by 47 U.S.C. 1428(a)(3), and the fee for State use of elements of the 
core network authorized by 47 U.S.C. 1442(f), as distinct and separate 
from each other and may be assessed individually or cumulatively, as 
applicable.
Network User Fees
    (2) FirstNet concludes it may charge a user or subscription fee 
under 47 U.S.C. 1428(a)(1) to any user that seeks access to or use of 
the nationwide public safety broadband network.
State Core Network User Fees
    (3) FirstNet concludes that the fees assessed on States assuming 
RAN responsibilities for use of the core network authorized by 47 
U.S.C. 1442(f) are distinct from and can be assessed in addition to any 
other fees authorized under the Act.
Lease Fees Related to Network Capacity and Covered Leasing Agreements
    (4) FirstNet concludes that a covered leasing agreement under 47 
U.S.C. 1428(a)(2) does not require a secondary user to ``construct, 
manage, and operate'' the entire FirstNet network, either from a 
coverage perspective or exclusively within a specific location.
    (5) FirstNet concludes that multiple covered leasing agreement 
lessees could coexist and be permitted access to excess network 
capacity in a particular geographic area.

[[Page 63532]]

    (6) FirstNet interprets that a covered leasing agreement lessee 
satisfies the definition under 47 U.S.C. 1428(a)(2) so long as the 
lessee does more than a nominal amount of constructing, managing, or 
operating the network.
    (7) FirstNet concludes that an entity entering into a covered 
leasing agreement under 47 U.S.C. 1428(a)(2) is not required to perform 
all three functions of constructing, managing, and operating a portion 
of the network, so long as one of the three is performed as part of the 
covered leasing agreement.
    (8) FirstNet interprets the reference to ``network capacity'' in 
the definition of covered leasing agreement under 47 U.S.C. 
1428(a)(2)(B)(i) as a generic statement referring to the combination of 
spectrum and network elements, as defined by the Act, and includes the 
core network as well as the radio access network of either FirstNet 
alone or that of the secondary user under a covered leasing agreement 
whereby the core and radio access network are used for serving both 
FirstNet public safety entities and the secondary user's commercial 
customers.
    (9) FirstNet interprets the term ``secondary basis'' under 47 
U.S.C. 1428(a)(2)(B)(i) to mean that network capacity will be available 
to the secondary user unless it is needed for public safety entities as 
defined in the Act.
    (10) FirstNet interprets the phrase ``spectrum allocated to such 
entity'' found in 47 U.S.C. 1428(a)(3)(B)(ii) as allowing all or a 
portion of the spectrum licensed to FirstNet by the FCC under call sign 
``WQQE234'' to be allocated for use on a secondary basis under a 
covered leasing agreement.
    (11) FirstNet concludes the reference to ``dark fiber'' in 47 
U.S.C. 1428(a)(2)(B)(ii) cannot literally be interpreted as such, and 
the reference should be interpreted to allow the covered leasing 
agreement lessee to transport such traffic on otherwise previously dark 
fiber facilities.
Network Equipment and Infrastructure Fee
    (12) FirstNet interprets 47 U.S.C. 1428(a)(3) as being limited to 
the imposition of a fee for the use of static or isolated equipment or 
infrastructure, such as antennas or towers, rather than for use of 
FirstNet spectrum or access to network capacity.
    (13) FirstNet interprets the phrase ``constructed or otherwise 
owned by [FirstNet]'' under 47 U.S.C. 1428(a)(3) as meaning that 
FirstNet ordered or required the construction of such equipment or 
infrastructure, paid for such construction, simply owns such equipment, 
or does not own but, through a contract has rights to sublease access 
to, or use of, such equipment or infrastructure.
Analysis of and Responses to Comments on Fees
    Summary: The majority of commenters agreed with the various 
interpretations related to the assessment and collection of fees by 
FirstNet. The commenters generally understood the authority the Act 
gives FirstNet to assess and collect fees and the importance of such 
fees as a key funding resource necessary to build, operate, and 
maintain the NPSBN. However, a few commenters, as described and 
responded to below, either disagreed with certain interpretations or 
provided general comments relating to the assessment and collection of 
the various fees under the Act.
    Comment #25: Two commenters agreed that FirstNet is authorized to 
assess a fee for use of the core network, but suggested that States 
assuming RAN deployment responsibilities should only pay the costs 
associated with using the core network and spectrum lease; they should 
not have to pay a network user or subscription fee, and that FirstNet 
is not allowed to, or should not, impose `user' fees on opt-out States 
in a cumulative manner as interpreted by FirstNet.
    Response: FirstNet disagrees and believes the Act authorizes 
FirstNet to assess a user or subscription fee to each entity, including 
a State choosing to deploy its own radio access network, that seeks 
access to or use of the network. Specifically, the Act authorizes 
FirstNet to collect a ``user or subscription fee from each entity, 
including any public safety entity or secondary user, that seeks access 
to or use of the [NPSBN].'' \33\ Consequently, a plain reading of this 
provision does not appear to provide any exclusionary language that 
would limit which entities may be charged a fee for access to or use of 
the network. Rather, as discussed in the First Notice, the use of the 
term ``including'' rather than ``consisting'' when describing the scope 
of entities that may be charged a network user fee indicates that this 
group is not limited to only public safety entities or secondary users, 
but would include other entities such as a State. Thus, FirstNet 
believes the plain language of the Act supports the conclusion that 
FirstNet may charge a user or subscription fee to any eligible user who 
seeks access to or use of the nationwide public safety broadband 
network, including, as appropriate, a State assuming responsibilities 
for radio access network deployment.
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    \33\ 47 U.S.C. 1428(a)(1) (emphasis added).
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    Comment #26: One commenter suggested that all public safety user 
fees should include nationwide coverage, and should be for unlimited 
use of the NPSBN. For example, a flat fee for unlimited usage (and no 
roaming fees) should be charged within each State, similar to today's 
carrier billing model.
    Response: This comment is outside the scope of this notice. 
However, FirstNet acknowledges the comment and will consider the 
recommendation as it continues planning for the deployment of the 
NPSBN.
    Comment #27: One commenter suggested that while the Act is 
unambiguous on allowing FirstNet to assess a fee to States assuming RAN 
responsibilities for use of the core network, it is important that this 
fee not be set so high so as to discourage States from opting out of 
the NPSBN. The commenter further noted that the ability of States to 
construct their own RAN is clearly permissive under the Act and, in 
fact, could enable significant growth and adoption of the NPSBN as long 
as the user fees for opt-out states are reasonable and contemplate the 
budgets of State and local public safety entities.
    Response: This comment is outside the scope of this notice. 
However, FirstNet acknowledges the comment and will consider the 
recommendation as it continues planning for the deployment of the 
NPSBN.
    Comment #28: Two commenters disagreed that ``all'' of the FirstNet 
Band 14 spectrum can be allocated for secondary use under a covered 
leasing agreement.
    Response: FirstNet believes its interpretation that the Act allows 
all or part of the spectrum licensed to FirstNet by the FCC under call 
sign ``WQQE234'' to be allocated for secondary use is supported by 
language of the Act. FirstNet is the entity created by the Act to 
ensure the establishment of the NPSBN, and as such has a duty to ensure 
the efficient use of the funding resources available to fulfill this 
duty, including the ability to permit access to spectrum capacity on a 
secondary basis. To best utilize these funding resources, the Act 
authorizes FirstNet to enter into covered leasing agreements which 
permit an entity entering into such an agreement to have access to, or 
use of, network capacity on a secondary basis for non-public safety 
services. The Act, as analyzed in the First Notice, does not provide 
any cap or limitation on how much of the network capacity may be 
allocated on a secondary basis. Thus, FirstNet believes the Act 
provides it

[[Page 63533]]

flexibility to determine how best to utilize network capacity as a 
funding resource to ensure both the establishment and self-
sustainability of the network. Despite this flexibility, however, it is 
important to note that public safety entities will always have priority 
use of the NPSBN over any non-public safety user that gains access to, 
or use of, the network on a secondary basis.
    Comment #29: One commenter suggested that the States should 
determine how much capacity/spectrum is made available within its 
borders under a covered leasing agreement--rather than FirstNet making 
the determination.
    Response: FirstNet is the entity created by the Act to ensure the 
establishment of the NPSBN and is also the sole licensee of the 700 MHz 
D block spectrum and the existing public safety broadband spectrum.\34\ 
Thus, FirstNet is the sole entity responsible for determining how to 
allocate the spectrum under a covered leasing agreement.
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    \34\ 47 U.S.C. 1421, 1422.
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    Comment #30: One commenter cautioned FirstNet to ensure there is 
not an undue expectation by the covered leasing agreement lessee that 
its lease of the spectrum supersedes public safety's access to, and use 
of, that spectrum as a priority in all cases, and at all times.
    Response: FirstNet acknowledges the comment and reiterates that its 
primary mission is to ensure the establishment of a nationwide, 
interoperable network for public safety. Accordingly, public safety 
will always have priority use of the NPSBN over any non-public safety 
user that gains access to, or use of, the network on a secondary basis 
through a covered leasing agreement.
    Comment #31: One commenter recommended that FirstNet interpret 47 
U.S.C. Sec.  1428(a)(3) to only apply to the RAN hardware in States 
that choose to participate in the NPSBN as proposed by FirstNet.
    Response: FirstNet interprets the phrase ``constructed or otherwise 
owned by [FirstNet]'' under 47 U.S.C. 1428(a)(3) as meaning that 
FirstNet ordered or required the construction of such equipment or 
infrastructure, paid for the construction, owns the equipment, or does 
not own the equipment, but, through a contract, has the right to 
sublease the equipment or infrastructure. Thus, unless the RAN hardware 
in any State falls within the criteria above, FirstNet would not have 
the authority to assess and collect a fee for use of such 
infrastructure or equipment.

    Dated: October 15, 2015.
Jason Karp,
Chief Counsel (Acting), First Responder Network Authority.
[FR Doc. 2015-26621 Filed 10-19-15; 8:45 am]
BILLING CODE 3510-TL-P