Whether governors can change their “opt-in” decisions has been debated for some time, even before yesterday’s changes to the draft SMLA. Rivada Networks officials have said that governors only sign letters of intent, so an official “opt-in” decision is not binding and can be changed until the Dec. 28 deadline. AT&T has contended that the assertion that a governor’s “opt-in” announcement is not binding is “very much misinformation.”

FirstNet’s e-mail yesterday notes that “the SMLA is not part of the state plan” that a governor would accept when making a “opt-in” announcement. When asked whether a governor’s “opt-in” announcement remains binding in light of yesterday’s changes to the draft SMLA, a FirstNet spokesperson provided the following statement:

“The governors in 40 states and territories notified us of their decision to opt in to the network, and so we are moving forward to the deliver public-safety services and implement the network in those states and territories,” according to the statement to IWCE’s Urgent Communications.

There is no question that AT&T believes that governors have the ability to change an “opt-out” announcement, as the company publicly has stated its hope that New Hampshire Gov. Chris Sununu will reverse his “opt-out” announcement.

Although Sununu made his "opt-out" announcement on Dec. 7, FirstNet has not received any notification of a decision to date, according to a FIrstNet spokesperson. In contrast, FirstNet has received notifications from all 40 governors that have made "opt-in" announcements on behalf of their states and territories.

While there may be some debate whether governors have the legal ability to change their “opt-in” decisions by the Dec. 28 deadline, many sources have said that practical matters will play a bigger role in making announcements binding.

For instance, in Vermont, the governor made his “opt-in” announcement to get a commitment from AT&T to build six additional sites—not included in the formal state plan—before the offer expired on Dec. 1, according to statement in a public meeting. On Monday, Colorado officials noted that the state had negotiated an additional 35 sites to be built by AT&T beyond those that were included in the state plan.

If governors were to reverse their “opt-in” announcement, they likely would jeopardize such negotiated enhancements to the state plan, according to sources.

Another potential complicating issue is that AT&T already has begun signing public-safety agencies located in “opt-in” states to FirstNet contracts, which provides first responders with preemptive access across all of AT&T’s network. It is unclear how those agreements would be altered, if a governor were to reverse “opt-in” decisions, according to sources.