All sources speaking to IWCE’s Urgent Communications expressed surprise by the timing of the language changes to the draft SMLA, noting that the changes were made with just nine days—and only six business days—before the Dec. 28 for most governors to make their “opt-in/opt-out” decisions.

Governors in 38 states and two territories already have made “opt-in” announcements—four in the two business days before the new guidance was released—and New Hampshire Gov. Chris Sununu has made an “opt-out” decision. Of these, governors in 22 states and two territories made their “opt-out” announcements before the final state plans were released in September, as well as before the original draft SMLA guidelines were released in October.

In addition to the actual “opt-in/opt-out” announcements, multiple RFPs seeking alternative-RAN vendors were evaluated under the guidance included in the original draft SMLA, the sources said. This timing aspect also was noted in a prepared statement on the draft SMLA from Don Brittingham, Verizon’s vice president for public-safety policy.

 “It's good that FirstNet now recognizes that its onerous opt-out conditions were unreasonable, but changing those conditions just one week prior to the opt-out deadline leaves states with no reasonable opportunity to factor those changes into their decisions,” according to Brittingham’s statement. “We believe that Congress intended for states to have a meaningful opportunity to opt-out, but unfortunately the process has not played out that way.”

Brian Carney, spokesman for Rivada Networks—a company that has competed in all of the alternative-RAN procurements to date—said governors that have made an “opt-in” announcement should reconsider their decisions in light of the new draft SMLA language.

“The ‘draconian’ and ‘unrealistic’ threat of huge termination penalties for opt-out states have already driven a number of states to ‘opt in’ to the AT&T/federal plan,” Carney said. “Now, nine days before the opt-in/opt-out deadline … FirstNet is changing the rules again and withdrawing the termination-fee threat and removing the adoption-target penalties in the earlier drafts of the Spectrum Manager Lease Agreement.

“This is good news, even if it may feel to many states like it comes too late. It’s a game changer that should lead every opt-in state to at least reconsider its position.”

A FirstNet spokesperson noted that reconstitution payments and public-safety adoption targets were not removed entirely from the SMLA. Both continue to be integral aspects of the SMLA, despite the changes announced yesterday, according to the spokesperson.