State officials interviewed by IWCE’s Urgent Communications welcomed the changes in the draft SMLA’s termination-fee language, noting that a “reasonable” standard should expose the state to less financial risk than a “worst-case” standard. However, they also said they wished the new FirstNet position had been clarified earlier, wondering whether alternative-RAN procurements and governor “opt-in/opt-out” decisions might have had different outcomes had the new guidance been in place when state plans were finalized in September.

FirstNet also changed the manner in which the targets for public-safety adoption within an “opt-out” state would be determined and when those adoption goals would be set. Instead of requiring an “opt-out” state to meet the same adoption targets as AT&T committed to meet in the state, the “opt-out” state would submit its own adoption targets when it makes its application to the National Telecommunications and Information Administration (NTIA), which only would happen after receiving an approval from the FCC.

“With respect to adoption requirements for public safety users for an opt-out state, the SMLA will require adherence to any user adoption assumptions provided by a state in its State Alternative Plan Program application submitted to NTIA,” according to the FirstNet e-mail.

This was supported by language in the “FirstNet Facts” section of the FirstNet web site.

“The success of the NPSBN will lie in first responders’ use of the network,” according to the FirstNet web site. “As part of its State Alternative Plan Program (SAPP) application submitted to NTIA, applicants must specify public-safety adoption assumptions. If a state’s application is approved by NTIA, any commitments the state makes regarding the use of adoption assumptions, as specified in the application, will become a requirement of the SMLA.”

Although the new guidance makes it clear that the public-safety adoption targets would be set by an “opt-out” state, it is not certain whether setting a low adoption target could be a cited by NTIA as a reason to reject the state’s applications.

In addition, officials for FirstNet and AT&T repeatedly have declined to address whether AT&T could offer FirstNet services in an “opt-out” state on spectrum other than the 700 MHz Band 14 airwaves licensed to FirstNet—and, if so, whether those subscriptions would count toward the “opt-out” state’s adoption target.

Calls by IWCE’s Urgent Communications to the NTIA were not returned in time for a response to be included in this article.

According to the FirstNet RFP that was released almost two years ago, the nationwide contractor would have to pay financial penalties for missing public-safety-adoption targets and could lose access to the Band 14 spectrum, if the adoption targets were missed badly enough.