[Federal Register Volume 79, Number 185 (Wednesday, September 24, 2014)]
[Notices]
[Pages 57058-57067]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-22536]


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DEPARTMENT OF COMMERCE

National Telecommunications and Information Administration

[Docket Number: 140821696-4696-01]
RIN 0660-XC012


First Responder Network Authority Proposed 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 and request for comments.

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SUMMARY: The First Responder Network Authority (``FirstNet'') publishes 
this Notice to request public comment on certain proposed 
interpretations of its enabling legislation that will inform, among 
other things, forthcoming requests for proposals, interpretive rules, 
and network policies. With the benefit of the comments received from 
this Notice, FirstNet may proceed to implement these or other 
interpretations with or without further administrative procedure.

DATES: Submit comments on or before October 24, 2014.

ADDRESSES: The public is invited to submit written comments to this 
Notice. Written comments may be submitted electronically through 
www.regulations.gov or by mail (to the address listed below). Comments 
received related to this Notice will be made a part of the public 
record and will be posted to www.regulations.gov without change. 
Comments should be machine readable and should not be copy-protected. 
Comments should include the name of the person or organization filing 
the comment as well as a page number on each page of the submission. 
All personally identifiable information (e.g., name, address) 
voluntarily submitted by the commenter may be publicly accessible. Do 
not submit confidential business information or otherwise sensitive or 
protected information.

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 
[email protected].

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 principal first 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 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, prior to 
issuance of final 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\

[[Page 57059]]

However, Section 6206(d)(2) of the Act provides that any action taken 
or decision made by FirstNet is exempt from the requirements of the 
APA.\5\
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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).
    \5\ 47 U.S.C. 1426(d)(2).
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    Nevertheless, although excluded from these procedural requirements, 
FirstNet desires to solicit public comment on, in addition to technical 
and economic issues, certain foundational legal issues to guide our 
efforts in achieving our mission. The solicitation of comments on 
proposed legal interpretations and related implementations is more 
typically performed in a notice and comment process, rather than within 
an RFI or RFP process, including publication in the more widely 
accessed Federal Register, rather than the vendor-focused FedBizOpps. 
In addition, although not subject to the procedural requirements of the 
APA, FirstNet is subject to various consultation obligations under the 
Act, and this notice and comment process can contribute to such 
consultations.\6\
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    \6\ See 47 U.S.C. 1426(b)(1) (``[FirstNet] shall . . . take all 
actions necessary to ensure the building, deployment, and operation 
of the [NPSBN], in consultation with Federal, State, tribal, and 
local public safety entities, the Director of NIST, the Commission, 
and the public safety advisory committee established in section 
6205(a). . . .''). We note, however, that the specific consultations 
required under 47 U.S.C. 1426(c)(2)(A) must occur between FirstNet 
and the single officer or governmental body designated under Section 
6302(d), and this Notice is not intended to address those 
consultations, which are ongoing. See 47 U.S.C. 1426(c)(2)(B). 
Comments from such designated single officer or governmental body 
are, of course, nevertheless welcomed in this proceeding. We expect 
to continue to consult directly with Federal agencies and, pursuant 
to its charter, with the public safety advisory committee 
established under 47 U.S.C. 1425(a).
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    Thus, in general FirstNet may pursue APA-like public notice and 
comment processes such as this Notice, and we intend to rely upon 
comments filed in response to this Notice to inform the above-
referenced RFPs and our operations going forward. In addition, we may 
rely upon such comments to help inform any future implementations of 
the Act that we may undertake, such as establishing the network 
policies required by Section 6206(c)(1) of the Act.\7\
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    \7\ 47 U.S.C. 1426(c)(1).
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    With respect to this Notice, where we have drawn a preliminary 
conclusion and sought comments thereon, we currently intend to issue a 
subsequent document indicating final interpretative determinations, 
taking into consideration the comments received. This subsequent 
document might not precede release of the above-mentioned RFPs, which 
will nonetheless incorporate such final interpretive determinations in 
light of the received comments. Further, although we may, we do not now 
anticipate issuing further public notices and/or opportunities for 
comment or reply comments on the preliminary conclusions made in this 
Notice, and thus encourage interested parties to provide comments in 
this proceeding.
    Where we have sought comment on a matter in this Notice without 
providing a preliminary conclusion, we may issue additional notices 
seeking comments on any preliminary conclusions we may reach following 
review and consideration of the comments responding to this Notice. 
That notice of preliminary conclusions, if issued, would then be 
followed by notice of final determinations. However, because we may not 
issue such a further notice of preliminary conclusions at all or prior 
to releasing the above-mentioned RFPs, we again encourage interested 
parties to provide comments in this proceeding.

II. Issues

A. FirstNet Network

1. Elements of the Network
    Section 6202(a) of 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. . . .'' \8\ Section 6202(b) defines the architecture of 
this network as initially consisting of a ``core network'' and a 
``radio access network,'' with specific definitions discussed below.\9\ 
In addition, Section 6206(b) requires FirstNet to take all actions 
necessary to ensure the building, deployment, and operation of the 
network, including issuing requests for proposals for the purposes of 
building, operating, and maintaining the network.\10\ Thus, overall, 
FirstNet is responsible for ensuring the core network and radio access 
network is built, deployed, and operated.
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    \8\ 47 U.S.C. 1422(a).
    \9\ See 47 U.S.C. 1422(b).
    \10\ See 47 U.S.C. 1426(b).
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    Under the state and local implementation provisions of Section 
6302, however, a State may, subject to the application process 
described in 6302(e), choose to conduct its own deployment of a radio 
access network in such State, including issuing requests for proposals 
for the construction, maintenance, and operation of the radio access 
network within the State.\11\ Section 6302 does not provide for State 
deployment of a core network separate from the core network that 
FirstNet is charged with deploying under Sections 6202 and 6206. 
Section 6302(f) requires States that choose to build their own radio 
access network to pay any user fees associated with such State's use of 
``the core network.'' \12\ The only user fees expressly defined under 
the Act are those FirstNet is authorized to assess and collect under 
Section 6208, and as mentioned above, the Act does not require any 
party other than FirstNet to build and operate a core network. In 
addition to and consistent with these statutory provisions, Sections 
4.1.1 and 4.1.2 of the Interoperability Board Report \13\ indicate that 
the FirstNet core network is the core network connected to and 
controlling opt-out State radio access networks. Thus, we preliminarily 
conclude that opt-out State radio access networks must use FirstNet's 
core network to provide services to public safety entities. This 
conclusion is also supported by the overall interoperability goal of 
the Act, which would, from a technical and operational perspective, be 
more difficult to achieve if States deployed their own, separate core 
networks to serve public safety entities.\14\ We seek comments on this 
preliminary conclusion.
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    \11\ See 47 U.S.C. 1442.
    \12\ 47 U.S.C. 1442(f).
    \13\ Section 6203 of the Act established the Technical Advisory 
Board for First Responder Interoperability (``Interoperability 
Board'') and directed it to develop minimum technical requirements 
to ensure the interoperability of the NPSBN. 47 U.S.C. 1423. On May 
22, 2012, the Interoperability Board, in accordance with the Act, 
submitted its recommendations to the Commission in a report. See 
Interoperability Board, Recommended Minimum Technical Requirements 
to Ensure Nationwide Interoperability for the Nationwide Public 
Safety Broadband Network (``Interoperability Board Report'') (May 
22, 2012), available at http://apps.fcc.gov/ecfs/document/view?id=7021919873. On June, 21, 2012, the Commission completed its 
review of the Interoperability Board's final report and approved it 
for transmittal to FirstNet. See FCC Order of Transmittal, 
Recommendations of the Technical Advisory Board for First Responder 
Interoperability, PS Dkt. No. 12-74, FCC 12-68 (rel. June 21, 2012), 
available at https://apps.fcc.gov/edocs_public/attachmatch/FCC-12-68A1.pdf.
    \14\ We note that roaming among networks with separate core 
networks, potentially from different vendors, can substantially 
complicate the goal of a national, interoperable network. For 
example, features such as end-to-end QOS, priority, and preemption 
are controlled by several elements in the core network, and handling 
these features across multiple core networks would materially 
increase costs and complexity overall.
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    Section 6202(b) of the Act defines the FirstNet ``core network'' as 
providing the connectivity between the radio access network and the 
public Internet

[[Page 57060]]

or PSTN.\15\ Section 6202(b) further describes the parts of the ``core 
network'' to include ``the national and regional data centers, and 
other elements and functions that may be distributed geographically . . 
. and provides connectivity between (i) the radio access network; and 
(ii) the public Internet or public switched network, or both . . . .'' 
\16\ In accordance with this provision, relevant sections of the 
Interoperability Board Report, and commercial standards, we define the 
core network 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, 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.
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    \15\ 47 U.S.C. 1422(b)(1).
    \16\ Id.
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    Section 6202(b) defines the ``radio access network'' as consisting 
of all cell site equipment, antennas, and backhaul equipment required 
to enable wireless communications with devices using the public safety 
broadband spectrum.\17\ We propose to define the radio access network 
in accordance with this provision, commercial standards, and the 
relevant sections of the Interoperability Board Report, as consisting 
of the standard E-UTRAN elements (including the eNodeB).
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    \17\ 47 U.S.C. 1422(b)(2).
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    We seek comments on our preliminary conclusions regarding the 
definitions of core network and radio access network above, including 
the delineation of elements between them and any possible ramifications 
that would result based on this construct with respect to the 
achievement of FirstNet's mission, particularly if a State elects to 
opt-out and build their own radio access network.
2. Public Safety Entities, Secondary Users, and Other Users
    The Act clearly indicates that the NPSBN is intended primarily for 
use by public safety entities. Section 6101(a) of the Act generally 
directs the Federal Communications Commission (the ``Commission'') to 
reallocate the 700 MHz D block spectrum ``for use by public safety 
entities in accordance with the provisions of this Act.'' \18\ Section 
6206(b)(2)(B)(ii) further requires that FirstNet ensure that equipment 
used on the NPSBN is ``capable of being used by any public safety 
entity.'' \19\ However, the Act also permits FirstNet to charge user 
fees to, and thus by direct implication serve, non-public safety 
entities under certain conditions.\20\ We thus first propose to define 
below the legal scope of all potential users of the NPSBN, including 
both public safety entities and non-public safety users. In a later 
section, we will discuss the limitations imposed by the Act on the 
types of services FirstNet may offer to such users.
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    \18\ 47 U.S.C. 1411 (emphasis added).
    \19\ 47 U.S.C. 1426(b)(2)(B)(ii).
    \20\ 47 U.S.C. 1428(a)(1-3), 1442(f).
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    We note that FirstNet may, as a policy matter, decide to narrow the 
scope of users it actually serves relative to those it can legally 
serve if it determines it is reasonable and appropriate to do so in 
support of its mission. We also recognize that, even among the multiple 
user groups who are allowed to use the NPSBN, separate priority and 
preemption parameters will be established. In the future and following 
appropriate consultations, we will fully address the priority and 
preemptive use of and access to the NPSBN among the various user 
groups. Prior to that, we address below the specific types of users 
that FirstNet is statutorily authorized to serve on the NPSBN.
    In determining who is legally authorized to use the NPSBN it is 
helpful to first examine whether the Act expressly precludes any 
specific user group. We preliminarily conclude that the Act does not 
contain a list of expressly precluded users. Section 6212, discussed 
more fully in the next section of this Notice, comes closest to such a 
preclusion by limiting the types of services that can be provided 
directly to ``consumers.'' \21\ Section 6206(c)(2)(A)(vi) otherwise 
supports our general interpretation by requiring FirstNet to consult 
with regional, State, tribal, and local jurisdictions with regard to 
expenditures required to carry out policies on the ``selection of 
entities seeking access to or use of'' the network.\22\ We 
preliminarily conclude that the Act grants FirstNet discretion, within 
the bounds of the provisions discussed below, to consider a broad range 
of users consistent with FirstNet's mission.
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    \21\ See 47 U.S.C. 1432.
    \22\ 47 U.S.C. 1426(c)(2)(A)(vi).
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    To reach this conclusion, we first look to the sections of the Act 
involving the imposition of fees to provide greater clarity about the 
users authorized to use the NPSBN. Section 6208(a)(1) permits FirstNet 
to charge ``user or subscription'' fees to ``each entity, including any 
public safety entity or secondary user, that seeks access to or use of 
the [NPSBN].'' \23\ We note that this provision uses the word 
``including,'' rather than, for example, a limiting word such as 
``consisting'' as used in Section 6202(b), which identifies the closed 
set of specific network components making up the NPSBN.\24\
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    \23\ 47 U.S.C. 1428(a)(1) (emphasis added).
    \24\ 47 U.S.C. 1442(b).
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    Thus, although this provision explicitly identifies public safety 
entities and secondary users as entities for which FirstNet may charge 
user or subscription fees, it does appear to leave open the possibility 
of a group of other, unspecified entities as NPSBN users to which 
FirstNet may charge a network user fee, and thus presumably provide 
service. For example, Section 6302(f) further authorizes FirstNet to 
charge opt-out States ``user fees'' associated with use of FirstNet's 
core network.\25\ As discussed below, we preliminarily conclude that 
such opt-out States could constitute either public safety entities or 
fall within this other, unspecified category of entities within Section 
6208(a)(1) in their capacity as an entity seeking access to and use of 
the FirstNet core network. Similarly, Section 6208(a)(3) authorizes us 
to collect a fee from any entity that seeks access to or use of any 
network equipment or infrastructure.\26\ Such entities could also 
possibly fall under the other category of unspecified users or, like 
opt-out States, be considered users of the NPSBN by virtue of our 
direct authority to charge a fee for access to or use of any network 
equipment or infrastructure. We seek comments on the preliminary 
conclusions above.
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    \25\ 47 U.S.C. 1442(f).
    \26\ 47 U.S.C. 1428(a)(3).
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i. Public Safety Entities
    A public safety entity is defined in Section 6001(26) of the Act as 
an ``entity that provides public safety services.'' \27\ We note here 
that the Act does not include any express language requiring a minimum 
amount or frequency of providing such services, but merely required 
that an entity provide such services, even if not full time. As is more 
fully discussed below, we preliminarily conclude that an entity may 
offer other services in addition to a non-de minimis amount of public 
safety services and still qualify as a public safety entity.
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    \27\ 47 U.S.C. 1401(26).
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    Public safety services, in turn, are defined in the Act as having 
``the meaning given the term in section 337(f) of the Communications 
Act of 1934 [the

[[Page 57061]]

``Communications Act''] (47 U.S.C. 337(f)); and (B) includes services 
provided by emergency response providers, as that term is defined in 
section 2 of the Homeland Security Act of 2002 [the ``HSA''] (6 U.S.C. 
101).'' \28\ Accordingly, we preliminarily conclude that ``public 
safety services'' are services that are either those satisfying Section 
337(f) of the Communications Act or services satisfying Section 2 of 
the HSA. We believe an alternative interpretation requiring compliance 
with both definitions, rather than either definition, would not be an 
appropriate treatment of the word ``includes'' in the provision and 
would unduly constrain the pool of potential public safety entities 
that could use the network to a group smaller than either the 
Communications Act or the HSA definition would allow. We seek comment 
on this preliminary conclusion.
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    \28\ 47 U.S.C. 1401(27) (emphasis added).
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a. 47 U.S.C. 337(f)
    The Communications Act defines ``public safety services'' to mean 
services:

    (A) the sole or principal purpose of which is to protect the 
safety of life, health or property; (B) that are provided by (i) 
State or local government entities, or (ii) by non-governmental 
organizations that are authorized by a governmental entity whose 
primary mission is the provision of such services; and (C) that are 
not made commercially available to the public by the provider.\29\
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    \29\ 47 U.S.C. 337(f)(1).

    This prong of the definition of public safety services defines 
these services by referencing both the purpose of the services and 
those entities that provide them. However, the Communications Act's 
definition of public safety services has historically been applied not 
in the context of determining entities that provide services, but 
rather to restrict or define the particular services that can be 
provided over limited-use spectrum. In contrast, the Act purports to 
define an entity, rather than a service, as one that performs certain 
services.
    Accordingly, the definition of public safety entity under the Act 
will turn on the services being provided by the entity, with the 
definition of such services under the Communications Act turning on 
both (1) the nature of the services and (2) the entity providing them. 
In the case of a service in general, an entity may perform different 
kinds of services, only some of which may qualify as public safety 
services. In the case of a public safety entity as defined in the Act, 
however, there is no ``primary mission'' restriction on the entity as 
there is in the Communications Act definition of public safety 
services. Nevertheless, when we consider just the Communications Act 
prong of the definition of public safety services in the Act, a public 
safety entity under the Act may be limited, by definition, to the 
entities referenced in the Communications Act definition of public 
safety services.
    To aid our interpretation of the Act, we have examined how the 
Commission has interpreted this Communications Act definition. On July 
21, 2011, the Commission issued an Order interpreting Section 337(f) in 
connection with permissible uses of the 763-768 MHz and 793-798 MHz 
public safety broadband spectrum, which is now a portion of the 
spectrum licensed to FirstNet.\30\ This Order provided ``guidance on 
the scope of permissible operations under Section 337 of the 
Communications Act as undertaken by state, local, and other 
governmental entities.'' \31\ The Commission provided several specific 
examples of potential permissible uses by personnel of governmental 
entities that are informative for purposes of defining ``public safety 
entity'' under the Act. These include:
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    \30\ See Service Rules for the 698-746, 747-762 and 777-792 MHz 
Bands, Fourth Report and Order, 26 FCC Rcd. 10799 (F.C.C. July 21, 
2011) (Fourth Report and Order).
    \31\ Id.
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    (1) Entities supporting airport operations when ``ensuring the 
routine safety of airline passengers, crews, and airport personnel and 
property in a complex air transportation environment.'' \32\
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    \32\ Id. at 10808.
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    (2) Transportation departments in the design and maintenance of 
roadways, the installation and maintenance of traffic signals and 
signs, and other activities that affect the safety of motorists and 
passengers.\33\
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    \33\ See id.
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    (3) City planning departments to ensure compliance with building 
and zoning codes intended to protect the safety of life and 
property.\34\
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    \34\ See id. at 10809.
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    (4) Entities protecting the safety of animals, homes, and city 
infrastructure, particularly in crisis situations.\35\
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    \35\ See id. at 10808.
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    We give deference to the conclusions reached by the Commission in 
its interpretation of Section 337(f)(1) to inform our interpretation of 
``public safety services'' as defined in the Act. Thus, we 
preliminarily conclude that entities providing the services described 
in the Commission's Order, above, would qualify as public safety 
entities for purposes of the Act. We seek comment on this preliminary 
conclusion. We also seek comment on other entities and services that 
should so qualify.
    Section 337(f)(1)(B)(ii) also provides that public safety services 
can be performed ``by non-governmental organizations that are 
authorized by a governmental entity whose primary mission is the 
provision of such services.'' \36\ In its Order, the Commission did not 
address services performed by non-governmental organizations. We 
preliminarily conclude that the Commission's description with respect 
to services provided by governmental entities should equally apply to 
services provided by non-governmental entities as contemplated by 
Section 337(f)(1). We thus seek comments on the types of non-
governmental organizations that, were they to provide the services the 
Commission addressed with respect to governmental entities, would 
qualify under Section 337(f) of the Communications Act as providing 
public safety services. We also seek comments on other non-governmental 
organizations and services that should so qualify.
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    \36\ 47 U.S.C. 337(f)(1)(b)(ii).
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    In order to understand which non-governmental entities under 
Section 337 would qualify as public safety entities, one must first 
identify the types of governmental entities whose primary mission is 
the provision of public safety services, as these entities can, in 
turn, authorize non-governmental organizations to provide public safety 
services under Section 337(f)(1)(b)(ii). Section 337(f) of the 
Communications Act refers to such entities as ``a governmental entity 
whose primary mission is the provision of [public safety] services.'' 
\37\ We seek comments on which governmental entities may authorize non-
governmental organizations to provide public safety services based on 
this ``primary mission'' limitation. For example, we seek comments on 
whether state utility commissions, health departments, and police and 
fire agencies qualify as such entities. We also seek comments on what 
other governmental entities would so qualify.
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    \37\ Id.
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b. HSA Section 2
    Section 6001(27) of the Act states that public safety services are 
not only services defined in Section 337 of the Communications Act, but 
also are services provided by ``emergency response providers'' as that 
term is

[[Page 57062]]

defined by HSA Section 2.\38\ ``Emergency response providers'' include 
``Federal, State, and local governmental and nongovernmental emergency 
public safety, fire, law enforcement, emergency response, emergency 
medical (including hospital emergency facilities), and related 
personnel, agencies, and authorities.'' \39\
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    \38\ See 47 U.S.C. 1401(27)(B).
    \39\ 6 U.S.C. 101(6).
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    Thus, under the Act, a public safety entity is also an entity 
performing the services performed by ``emergency response providers.'' 
The inclusion in the Act of the HSA definition arguably expands the 
list of potential public safety services beyond that provided in the 
definition in Section 337 of the Communications Act, in that the HSA 
definition does not include a ``primary mission'' limitation and 
specifically identifies ``personnel'' in addition to agencies and 
authorities as emergency response providers. The HSA definition thus 
raises the question as to whether a public safety ``entity'' under the 
Act can be a person in addition to an organization.\40\ While Section 
337(f) of the Communications Act indicates that public safety services 
are services provided only by governmental entities and nongovernmental 
organizations, the Act's inclusion of services provided by emergency 
response providers per HSA Section 2 could reasonably be interpreted to 
mean that personnel should be considered public safety entities under 
the Act when providing services that would otherwise be considered 
public safety services. Thus, we preliminarily conclude individuals may 
fall within the definition of ``public safety entity'' so long as they 
are serving in their official capacity.\41\ Given this preliminary 
conclusion, both volunteer firefighters and the fire departments for 
which they serve, for example, would qualify as a public safety entity. 
FirstNet seeks comment on this preliminary conclusion.
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    \40\ We note that the Supreme Court has interpreted the word 
`entity' to typically refer to an organization, rather than an 
individual. Samantar v. Yousuf, 560 U.S. 305, 315 (2010). However, 
the Court noted that the analysis of whether an entity should 
include an individual must be made by reference to the underlying 
statutory definition, terms and components. In Samantar, the Court 
noted in reaching its conclusion that the statutory terms of the 
Foreign Sovereign Immunities Act of 1976, as drafted, would have to 
be awkwardly applied in order to include individuals within the 
meaning of entity in that context. See id.
    \41\ 47 U.S.C. 337(f)(1)(A).
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    In reaching this preliminary conclusion, we also note that while 
the definition of public safety services under Section 337(f) of the 
Communications Act is limited to those services ``the sole or principal 
purpose of which is to protect the safety of life, health, or 
property,'' such a limitation is not present in the HSA definition, or 
in the definition of public safety entity in the Act itself. Thus, when 
read in totality, the Act does not limit the definition of public 
safety entity to those entities that solely, or even primarily, provide 
such services, given the HSA Section 2 component of the definition. 
Congress limited the definition of public safety entity in the 
Communications Act, but, given the incorporation of HSA Section 2 into 
the Act, we preliminarily conclude that Congress imposed no such 
limitation here. As a result, the Act does not appear to require any 
minimum amount of time that an entity must provide public safety 
services in order to qualify as a public safety entity under the Act. 
We thus preliminarily conclude that, so long as an entity performs a 
non-de minimis amount of public safety services, even if it provides 
other services, it will qualify as a public safety entity under the 
Act.\42\
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    \42\ This does not mean that as a policy matter, rather than a 
legal matter, FirstNet may not further restrict an entity's use of 
the network, for example, to only those times it is providing public 
safety services or restrict access to the network to only those 
entities who have public safety as a primary mission.
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    Finally, HSA Section 2 indicates that ``emergency response 
providers'' include not only ``Federal, State, and local governmental 
and nongovernmental emergency public safety, fire, law enforcement, 
emergency response, emergency medical (including hospital emergency 
facilities) . . . personnel, agencies, and authorities'' but also 
``related personnel, agencies, and authorities.'' \43\ We preliminarily 
interpret the term ``related personnel, agencies, and authorities'' as 
personnel, agencies, and authorities providing support to public safety 
entities in their mission as it would further the public safety goals 
of the Act to facilitate interoperable communications between public 
safety entities and the personnel, agencies, and authorities supporting 
them. Therefore, we preliminarily conclude that the Act identifies 
public safety entities under the HSA Section 2 prong as:
---------------------------------------------------------------------------

    \43\ 6 U.S.C. 101(6) (emphasis added).
---------------------------------------------------------------------------

    (1) Any Federal, State, and local governmental and nongovernmental 
emergency public safety, fire, law enforcement, emergency response, and 
emergency medical (including hospital emergency facilities) personnel, 
agencies, and authorities; and
    (2) Personnel, agencies, and authorities providing support to 
Federal, State, and local governmental and nongovernmental emergency 
public safety, fire, law enforcement, emergency response, emergency 
medical (including hospital emergency facilities) personnel, agencies, 
and authorities.
    We seek comments on these preliminary conclusions and on which 
specific personnel, agencies, and authorities might then qualify as 
``related'' or providing support to the Federal, State, and local 
governmental and nongovernmental personnel, agencies, and authorities 
listed in the HSA definition.
ii. Secondary Users
    As discussed above, the term ``secondary user'' is also expressly 
used in the Act to describe a particular category of FirstNet user. 
Although there is no express definition of secondary user in the Act, 
Section 6208(a)(2), which addresses covered leasing agreements with 
``secondary users,'' could be interpreted to implicitly define a 
secondary user as one that ``access[es] . . . network capacity on a 
secondary basis,'' or, as Section 6208(a)(2) goes on to provide, 
``access[es] . . . network capacity on a secondary basis for non-public 
safety services.'' \44\
---------------------------------------------------------------------------

    \44\ 47 U.S.C. 1428(a)(2) (emphasis added).
---------------------------------------------------------------------------

    In the context of the Act, the ``secondary basis'' is presumably 
``secondary'' to use by public safety entities, which would be 
considered primary users. Because FirstNet believes certain public 
safety users will themselves ultimately be subject to prioritization 
and/or preemption by other public safety users, FirstNet does not 
believe the ``secondary basis'' referenced in the Act can be defined 
solely as those users subject to such prioritization or preemption. 
Indeed, certain public safety entities may, at times, be performing 
preemptable public safety services or preemptable non-public safety 
services.
    The references to secondary users provided in Sections 6212 and 
6302(g) also do not appear to be conclusive as to whether secondary 
users include users other than those that enter into covered leasing 
agreements, which is the only explicit arrangement identified within 
the Act describing a secondary use of the NPSBN.\45\ Section 6208(a)(2) 
sets out very specific criteria for covered leasing agreements with 
secondary users.\46\ The Act defines a covered leasing agreement as a 
written agreement resulting from a public-private arrangement to 
construct,

[[Page 57063]]

manage, and operate the public safety broadband network between 
FirstNet and a secondary user to permit: ``(1) access to network 
capacity on a secondary basis for non-public safety services; and (2) 
the spectrum allocated to such entity to be used for commercial 
transmissions along the dark fiber of the long-haul network of such 
entity.'' \47\ Given the specificity with which Congress set out 
conditions for non-public safety use of network capacity, we seek 
comments on a preliminary definition of secondary user as a user that 
accesses network capacity on a secondary basis for its own, or the 
provision of, non-public safety services only. We also seek comments on 
whether, notwithstanding the language in Section 6208(a)(1) permitting 
FirstNet to charge network user fees to secondary users, the definition 
should be constrained further to limit secondary users to those 
entering into covered leasing agreements.\48\
---------------------------------------------------------------------------

    \45\ 47 U.S.C. 1432, 1442(g).
    \46\ 47 U.S.C. 1428(a)(2).
    \47\ Id.
    \48\ 47 U.S.C. 1428(a)(1).
---------------------------------------------------------------------------

    A definition limiting secondary users to non-public safety use 
would be consistent with our preliminary approach, discussed in the 
previous section, regarding the definition of public safety user, 
whereby the definition of that term includes any entity that performs 
public safety services at any time in any non-de minimis amount. Thus, 
for example, an electric utility could come within the definition of 
public safety entity (and could also be a party to a covered leasing 
agreement), but FirstNet policies and procedures, along with local 
public safety control of prioritization and preemption, would likely 
regulate its use of the NPSBN.
    We also note that, in addition to the fee for leasing network 
capacity under a covered leasing agreement which can be charged under 
Section 6208(a)(2), the Act, under section 6208(a)(1), permits FirstNet 
to charge secondary users a network user fee for using or accessing the 
NPSBN.\49\ Although in and of itself this provision would not 
necessarily require a change to the definition of secondary user 
proposed above, we seek comments on whether the inclusion of the term 
in subsection (a)(1) should affect the definition of secondary user.
---------------------------------------------------------------------------

    \49\ 47 U.S.C. 1428(a)(1).
---------------------------------------------------------------------------

iii. Entities Other Than Public Safety Entities and Secondary Users 
Seeking Access to or Use of the NPSBN
    As discussed above, we preliminarily conclude that Section 
6208(a)(1) permits FirstNet to charge a fee to a category of user 
beyond public safety entities and secondary users. We seek comments on 
which potential users could fall into this category.\50\ In addition, 
we seek comments on whether users identified in Section 6208(a)(3) 
(those seeking access to or use of any equipment or infrastructure 
constructed or otherwise owned by FirstNet) and Section 6302(f) (opt-
out States seeking use of the core network) fall within this third 
category of user, constitute their own unique category of users, or 
fall within the definition of public safety entity or secondary user 
for purposes of Section 6208(a)(1).\51\
---------------------------------------------------------------------------

    \50\ Id. We note that Section 6212 of the Act, discussed more 
fully in the section of this Notice on Services below, places 
limitations on the services that we can provide to this third 
category of user.
    \51\ 47 U.S.C. 1428(a)(3), 1422(f), 1428(a)(1).
---------------------------------------------------------------------------

3. Services
    As previously discussed, FirstNet is permitted to assess or collect 
certain fees related to the services that it offers. Sections 6208 and 
6302 specifically permit us to assess and collect: (1) Network user 
fees from users seeking access to or use of the NPSBN; (2) fees 
associated with covered leasing agreements; (3) fees related to the 
leasing of our network equipment and infrastructure; and (4) user fees 
from opt-out States that seek use of elements of our core network.\52\ 
Section 6212(a), however, specifies that FirstNet ``shall not offer, 
provide, or market commercial telecommunications or information 
services directly to consumers.'' \53\
---------------------------------------------------------------------------

    \52\ 47 U.S.C. 1428, 1442.
    \53\ 47 U.S.C. 1432(a).
---------------------------------------------------------------------------

    The Act does not define the word ``consumer'' or indicate whether 
the word is limited to individuals or includes organizations and 
businesses. In contrast, the Act does provide a specific, multi-pronged 
definition of public safety entity, as noted above. As a result of this 
contrast, we preliminarily conclude that regardless how ``consumer'' is 
defined, Section 6212 was not intended to limit potential types of 
public safety entities that may use or access the NPSBN for commercial 
telecommunications or information services.
    In addition, under the rule of construction outlined in subsection 
6212(b), nothing in Section 6212 is intended to prohibit FirstNet from 
entering into covered leasing agreements with secondary users, and thus 
we preliminarily conclude that Section 6212 at the very least does not 
act as a limitation on secondary users in the context of covered 
leasing agreements. We also preliminarily conclude that, given the 
definition of secondary user discussed above, Section 6212 was not 
intended to limit the pool of secondary users seeking access to or use 
of the network on a secondary basis. We seek comments on these 
preliminary conclusions.
    Thus, we preliminarily conclude that a ``consumer'' under the Act 
is neither a public safety entity nor a secondary user. Further, given 
the express authorizations in Section 6302(f) for FirstNet to impose 
user fees on opt-out States, and in Section 6208(a)(3) to impose lease 
fees on entities that seek access to or use of equipment or 
infrastructure, we also preliminarily conclude that such States and 
entities are not intended to qualify as a consumer (which would 
otherwise disqualify them as a user subject to fee assessments) when 
seeking access to or use of the core network, and equipment and 
infrastructure, respectively. We also seek comments on the kinds of 
services that this provision is intended to preclude FirstNet from 
otherwise offering and the scope of the limitations imposed by the 
provision. For example, we note that we are expressly authorized to 
enter into covered leasing agreements that would presumably permit the 
secondary user involved to provide commercial services, including 
potentially telecommunications or information services, directly to 
consumers.\54\ Finally, we seek comment on whether this provision 
implicitly outlines additional services that FirstNet may offer.
---------------------------------------------------------------------------

    \54\ See 47 U.S.C. 1428(a)(2)(B).
---------------------------------------------------------------------------

    For purposes of interpreting the Act with respect to FirstNet's 
potential service offerings,\55\ we note that the Act also provides 
guidance concerning the services that may be offered by a State that 
chooses to build its own radio access network. Specifically, Section 
6302(g)(1) precludes opt-out States from ``provid[ing] commercial 
service to consumers or offer[ing] wholesale leasing capacity of the 
network within the State except directly through public-private 
partnerships for construction, maintenance, operation, and improvement 
of the network within the State.'' \56\
---------------------------------------------------------------------------

    \55\ We may address the interpretation of opt-out related 
provisions and process in subsequent notices or rulemakings.
    \56\ 47 U.S.C. 1442(g)(1).
---------------------------------------------------------------------------

    FirstNet interprets Section 6302(g)(1) to mean that States cannot 
offer commercial services to consumers and can only lease network 
capacity through a public-private partnership for the purposes of in-
state construction, maintenance, operation and

[[Page 57064]]

improvement. We seek comment on this preliminary conclusion.

B. Requests for Proposals

1. Requests for Proposals Process
    Section 6206(b)(1)(B) requires FirstNet to issue ``open, 
transparent, and competitive'' RFPs.\57\ The procedural requirements 
for issuing such RFPs are not defined in the Act itself.
---------------------------------------------------------------------------

    \57\ 47 U.S.C. 1426(b)(1)(B).
---------------------------------------------------------------------------

    FirstNet, however, is not expressly excluded from the applicability 
of the Federal Acquisition Regulation (``FAR''), codified in 48 CFR 
Parts 1-99. The FAR is the primary regulation for use by all Federal 
Executive agencies in their acquisition of supplies and services with 
appropriated funds. Assuming application of the FAR, we preliminarily 
conclude that in complying with the FAR in such instances, FirstNet 
will satisfy the requirements of Section 6206(b)(1)(B). The FAR 
provides that ``the Federal Acquisition System will . . . promote 
competition . . . [and] conduct business with integrity, fairness, and 
openness.'' \58\ We believe the standards established in the FAR that 
promote a competitive, fair, and open process for acquiring goods and 
services fall within the ``open, transparent, and competitive'' 
standard of Section 6206(b)(1)(B). We seek comments on this preliminary 
conclusion.
---------------------------------------------------------------------------

    \58\ 48 CFR 1.102, 2.101.
---------------------------------------------------------------------------

    We also seek comments more generally on the appropriate 
interpretation of the ``open, transparent, and competitive'' standard 
of Section 6206(b)(1)(B) in this context, including how that standard 
should be interpreted in light of the Act's use of a ``fair, 
transparent, and objective'' standard in Section 6205(b)(1).\59\
---------------------------------------------------------------------------

    \59\ See 47 U.S.C. 1425(b)(1) (describing the standard FirstNet 
must follow when selecting agents, consultants, or experts).
---------------------------------------------------------------------------

2. Minimum Technical Requirements
    Section 6206(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.\60\ We interpret this 
provision to permit FirstNet to make non-material changes or additions/
subtractions to the minimal technical requirements developed by the 
Interoperability Board.\61\ We seek comments on how to delineate such 
non-material changes from those that are material. In addition, we seek 
comments on how to reconcile this provision with the requirements in 
Sections 6202(b) and 6206(c)(4) regarding FirstNet's obligations to 
accommodate advancements in technology.\62\
---------------------------------------------------------------------------

    \60\ 47 U.S.C. 1426(b)(1)(B); 47 U.S.C. 1423.
    \61\ Interoperability Board Report, supra n. 10.
    \62\ See 47 U.S.C. 1422(b), 1426(c)(4). 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 Report at 27.
---------------------------------------------------------------------------

3. Defining the Term ``Rural''
    Section 6206(b)(3) 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.'' \63\ 
Additionally, Section 6206(c)(1)(A)(i) 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.'' \64\ 
Finally, Section 6206(c)(1)(A)(ii) of the Act explains that FirstNet 
``shall develop . . . requests for proposals with appropriate . . . 
coverage areas, including coverage in rural and nonurban areas.'' \65\
---------------------------------------------------------------------------

    \63\ 47 U.S.C. 1426(b)(3) (emphasis added).
    \64\ 47 U.S.C. 1426(c)(1)(A)(i) (emphasis added).
    \65\ 47 U.S.C. 1426(c)(1)(A)(ii) (emphasis added).
---------------------------------------------------------------------------

    Although the Act does not define the term ``rural,'' we believe we 
must define this term to fulfill our duties with regard to the 
important rural coverage requirements in the Act.\66\ Several sources 
define the term ``rural,'' but we believe, for example, the Rural 
Electrification Act is a reasonable definition to use under the Act and 
may further the goals of the Act for several reasons. First, we believe 
the definition may be sufficiently precise and granular to guide 
potential vendors and FirstNet and ensure due consideration of such 
areas. Secondly, the Rural Electrification Act's definition of ``rural 
area'' is widely known and familiar to rural telecommunications 
providers, rural communities, and other stakeholders that will be 
impacted by FirstNet's mandate to carefully consider rural areas. 
Adoption of this definition would obviate the need for FirstNet to take 
additional, time-consuming steps to educate itself and the stakeholder 
community on the parameters of a novel or less familiar definition of 
``rural'' or ``rural area.'' Finally, the USDA bases its definition of 
``rural area'' upon the definition in the Rural Electrification Act for 
purposes of implementing its Rural Broadband Access Loan and Loan 
Guarantee Program. This USDA program funds the costs of construction, 
improvement, and acquisition of facilities and equipment to provide 
broadband service to eligible rural areas, and thus we believe the 
definition may be suitable for our related purposes.\67\ Accordingly, 
we seek comments on using this interpretation.\68\
---------------------------------------------------------------------------

    \66\ We appreciate the position the Commission 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.'').
    \67\ See About the Farm Bill Loan Program, USDA, available at 
http://www.rurdev.usda.gov/utp_farmbill.html (last visited 
May 27, 2014).
    \68\ We also considered similar definitions of ``rural'' and 
``rural area'' utilized by other federal sources, including the U.S. 
Bureau of the Census, Office of Management and Budget (OMB), and the 
Commission.
---------------------------------------------------------------------------

    Therefore, we preliminarily conclude that we should define 
``rural'' 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'').\69\ 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.'' \70\ 
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

[[Page 57065]]

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).'' \71\ Taken 
collectively, the Rural Electrification Act defines the term ``rural 
area'' as a city, town, or incorporated area that has a population of 
less than 20,000 inhabitants and is not adjacent and contiguous to an 
urbanized area that has a population of greater than 50,000 
inhabitants. We also seek comments on whether the adjacency prong of 
the definition will pose any difficulties in applying the definition 
under the Act.
---------------------------------------------------------------------------

    \69\ 7 U.S.C. 950bb(b)(3), amended by the Agricultural Act of 
2014, Public Law 113-79, 128 Stat. 649.
    \70\ Id.
    \71\ 7 U.S.C. 1991(a)(13)(A), amended by the Agricultural Act of 
2014, Public Law 113-79, 128 Stat. 649.
---------------------------------------------------------------------------

    Further, FirstNet intends to use the proposed definition of 
``rural'' for purposes of implementing the ``substantial rural coverage 
milestones'' as set forth in Section 6206(b)(3). We seek comments on 
how to interpret the terms ``substantial rural coverage milestones'' 
and how to implement this requirement. For example, we seek comments 
regarding whether the terms ``substantial rural coverage'' should be 
defined only in terms of geographic coverage, or whether other factors, 
such as population or the frequency of first responder activity in an 
area, should be included. In addition, we seek comments on whether we 
should define a separate term for a frontier or wilderness area that 
would bound the term rural in connection with provisions of the Act. 
For example, we seek comment on whether a population density below a 
five person per square mile or lower standard should be considered 
frontier, rather than rural, for purposes of the Act.
    Finally, Section 6206(c)(1)(A)(ii), as discussed above, explains 
that FirstNet ``shall develop . . . requests for proposals with 
appropriate . . . coverage areas, including coverage in rural and 
nonurban areas.'' \72\ We seek comments on the distinction between the 
terms rural and nonurban areas and how to define the term ``nonurban'' 
under the Act.
---------------------------------------------------------------------------

    \72\ 47 U.S.C. 1426(c)(1)(A)(ii) (emphasis added).
---------------------------------------------------------------------------

4. Existing Infrastructure
    The Act encourages FirstNet to consider leveraging existing 
infrastructure when ``economically desirable.'' \73\ Section 
6206(b)(1)(C) of the Act 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.'' \74\ Section 6206(b)(3), which 
addresses rural coverage and issuing RFPs, directs 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.'' \75\ 
Section 6206(c)(3) additionally requires that ``[i]n carrying out the 
requirements under subsection (b), 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.'' \76\
---------------------------------------------------------------------------

    \73\ See 47 U.S.C. 1426(b)(1)(C), (b)(3), (c)(3).
    \74\ 47 U.S.C. 1426(b)(1)(C).
    \75\ 47 U.S.C. 1426(b)(3).
    \76\ 47 U.S.C. 1426(c)(3).
---------------------------------------------------------------------------

    Section 6206(b)(1)(C) appears to relate to issuing RFPs referenced 
in 6206(b)(1)(B) and requires FirstNet to ``encourag[e] that such 
requests leverage, to the maximum extent economically desirable,'' 
existing infrastructure.\77\ The use of the term ``encourage,'' 
however, implies that FirstNet may not be in direct control of these 
requests. Alternatively, this provision could be intended to require 
FirstNet to encourage the proposals provided in response to FirstNet's 
requests to leverage existing infrastructure. Because the ``requests'' 
referenced in subsection (b)(1)(C) appear to be those required of 
FirstNet in subsection (b)(1)(B), we preliminarily conclude that 
subsection (b)(1)(C) is intended to require FirstNet to encourage, 
through its requests, that responsive proposals leverage existing 
infrastructure in accordance with the provision. We seek comments on 
this preliminary conclusion.
---------------------------------------------------------------------------

    \77\ 47 U.S.C. 1426(b)(1)(C) (emphasis added).
---------------------------------------------------------------------------

    Section 6206(b)(3) states that with regard to FirstNet's issuing 
requests for proposals, ``such proposals shall include partnerships 
with existing commercial mobile providers'' to the maximum extent 
economically desirable to utilize cost-effective opportunities to speed 
deployment in rural areas.\78\ Unlike subsection (b)(1)(C), this 
provision addresses ``proposals,'' but does so without directly 
requiring FirstNet to act in some way. We nevertheless preliminarily 
interpret this provision as requiring FirstNet to include in its 
requests that such proposals leverage such partnerships where 
economically desirable. We seek comments on this preliminary 
conclusion, and also on whether FirstNet or the supplier responding to 
a FirstNet request is intended to make the actual economic desirability 
assessment under the provision. We preliminarily conclude that FirstNet 
is to make that determination, but could do so through, for example, 
requiring and evaluating competitive proposals from carriers with 
facilities in rural areas. We also seek comment on whether FirstNet or 
a supplier responding to a FirstNet request or both are required to 
enter into the referenced partnerships, and the nature of such 
partnerships.
---------------------------------------------------------------------------

    \78\ 47 U.S.C. 1426(b)(3) (emphasis added).
---------------------------------------------------------------------------

    Section 6206(c)(3) states that FirstNet, in carrying out the 
requirements of subsection (b), which include, but are not limited to, 
issuing RFPs, ``shall enter into agreements to utilize, to the maximum 
extent economically desirable'' certain existing infrastructure.\79\ 
Thus, unlike the provisions discussed above, this provision expressly 
references neither requests nor proposals.
---------------------------------------------------------------------------

    \79\ 47 U.S.C. 1426(c)(3) (emphasis added).
---------------------------------------------------------------------------

    We note, however, that, as discussed above in this Notice, FirstNet 
is not expressly excluded from the applicability of the FAR, and thus 
when FirstNet itself enters into agreements to utilize the 
infrastructure described in Section 6206(c)(3), such agreements would 
likely be subject to the competitive processes of the FAR. FirstNet 
could also enter into an agreement, via such competitive process, with 
a private sector entity, which in turn contracts for use of State, 
tribal, or local infrastructure (whether or not through a competitive 
process). We seek comments on this interpretation.
    Each of these sections, as stated above, requires FirstNet to 
leverage existing infrastructure to the extent it is ``economically 
desirable.'' We seek comments on an appropriate definition of and 
approach to assessing what is ``economically desirable,'' and the 
factors that should be considered, and by whom, in each of the sections 
imposing the standard. For example, in weighing economic desirability 
with respect to the speed of rural deployment, we seek comments on how 
to balance costs with speed.
    In addition, we seek comments on the distinctions between the 
various types of existing infrastructure referenced in the three 
sections: Commercial wireless infrastructure; commercial mobile 
providers; commercial infrastructure; other communications 
infrastructure; and Federal, State, tribal, or local infrastructure. 
For example, we seek comments on whether the term ``commercial mobile 
provider'' should exclude resellers or other non-facilities-

[[Page 57066]]

based providers. Finally, we seek comments on how to factor in the 
transaction costs of collecting, analyzing, establishing terms and 
conditions for, and potentially leveraging the millions of ``pieces'' 
of infrastructure covered by the literal terms of the Act into our 
assessment of ``economic desirability.'' For example, we seek comments 
on the extent to which such assessments of economic desirability are 
simply embedded in a competitive RFP process.

C. Fees

    Section 6208(a) authorizes FirstNet to assess and collect three 
sets of fees notwithstanding Section 337 of the Communications Act.\80\ 
We first seek comments on whether the list of fees in Section 6208(a), 
which we interpret below to also include the fee for core network use 
from Section 6302(f), are exclusive and thus the only fees FirstNet may 
assess and collect, at least under the authority of the Act.\81\
---------------------------------------------------------------------------

    \80\ 47 U.S.C. 1428(a).
    \81\ Id.
---------------------------------------------------------------------------

User Fees
    Sections 6208(a)(1) and 6302(f) provide the authority and describe 
the circumstances under which FirstNet may assess and collect network 
user fees for access to and use of the NPSBN.\82\ FirstNet interprets 
the network user fees described in Section 6302(f) as being a 
specifically authorized subset of fees under Section 6208(a)(1) for 
``use of'' the core network. We believe user fees authorized by Section 
6208(a)(1) are distinct from covered leasing fees authorized by 
6208(a)(2) and lease fees related to network equipment and 
infrastructure authorized by 6208(a)(3), which are discussed separately 
in the sections below. Thus, FirstNet initially concludes that each of 
the fees authorized by the Act may be assessed individually, and 
cumulatively as applicable, and we seek comments on this preliminary 
conclusion, and on whether FirstNet has authority to impose fees under 
other authorities.
---------------------------------------------------------------------------

    \82\ See 47 U.S.C. 1428(a); See also 47 U.S.C. 1442(f).
---------------------------------------------------------------------------

i. Network User Fees
    As previously discussed, Section 6208(a)(1) of the Act authorizes 
FirstNet to assess and collect a network user or subscription fee from 
each entity, including public safety entities and secondary users, that 
seeks access to or use of the NPSBN.\83\ Thus, the Act contemplates 
that a network user fee could be collected from, at minimum, a public 
safety user or a secondary user. As previously discussed in this 
Notice, however, 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 could potentially 
include other entities. Thus, we preliminarily conclude that FirstNet 
may charge a user fee to any eligible customer, including secondary 
users who may have already entered into a covered leasing agreement 
with FirstNet, and seek comments on this preliminary interpretation. In 
addition, we seek comments on the difference between the terms ``access 
to'' and ``use of'' the NPSBN in this section, including for example, 
whether the term ``access to'' would include access to databases 
without use of other network infrastructure.
---------------------------------------------------------------------------

    \83\ 47 U.S.C. 1428(a)(1).
---------------------------------------------------------------------------

ii. State Core Network User Fees
    Section 6302(f) requires that a State choosing to build its own 
radio access network rather than participating in the FirstNet proposed 
network for that State, must pay any user fees associated with state 
use of elements of the core network.\84\ The Act states that this fee 
applies specifically to the use of the core network by an opt-out 
State, and therefore we preliminarily conclude that it is separate and 
distinct from any other fees authorized by the Act. We seek comments on 
this preliminary conclusion.
---------------------------------------------------------------------------

    \84\ 47 U.S.C. 1442(f).
---------------------------------------------------------------------------

2. Lease Fees Related to Network Capacity and Covered Leasing 
Agreements
    In addition to user fees, FirstNet is able to charge fees for 
secondary use of network capacity. Section 6208(a)(2) provides for 
``lease fees'' resulting from a public-private arrangement between 
FirstNet and a secondary user, which permits access to network capacity 
on a secondary basis for non-public safety services, including through 
``spectrum allocated to such'' secondary user.\85\ This public-private 
arrangement is termed a covered leasing agreement (``CLA'') under the 
Act.
---------------------------------------------------------------------------

    \85\ See 47 U.S.C. 1428(a)(2).
---------------------------------------------------------------------------

    With regard to the specific definition of a CLA, we first note that 
the Act contemplates a ``public-private arrangement,'' and thus 
preliminarily conclude that the arrangement must be between FirstNet 
and a ``private'' entity, with that entity being the ``secondary user'' 
provided in the preamble to Section 6208(a)(2)(B).\86\
---------------------------------------------------------------------------

    \86\ 47 U.S.C. 1428(a)(2)(B).
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    The ``arrangement'' described in Section 6208(a)(2)(B) is one ``to 
construct, manage, and operate the [NSPBN].'' \87\ The provision does 
not specify whether either party must perform all or a part of the 
constructing, managing, and operating under the arrangement. We thus 
preliminarily conclude that the arrangement 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. Thus, for example, one secondary user could 
construct, manage, and operate the FirstNet network in several states, 
and another secondary user could do so in several other states. 
Similarly, a secondary user could construct, manage, and operate a 
portion of the network in Akron, Ohio and at the same time FirstNet or 
other secondary users could be constructing, managing, and operating 
elements of the network in Akron in conjunction with the first 
secondary user. And thus, we preliminarily conclude that it is 
theoretically possible for multiple CLA lessees to coexist and utilize 
FirstNet spectrum in a particular geographic area.
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    \87\ Id.
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    Therefore, FirstNet's preliminary conclusion is that there is no 
minimum amount, other than a de minimis amount, of constructing, 
managing, and operating that a CLA lessee must do in order to satisfy 
the definition. We believe this interpretation provides us with the 
ability to leverage our excess network capacity to the maximum extent 
the market will bear, ultimately benefitting public safety by helping 
us achieve additional efficiencies of scale and increasing revenues for 
further investment in the network. Any alternative interpretation 
requiring more than this would artificially constrain the potential 
pool of purchasers of excess capacity, such as to those who could 
partner with FirstNet only on a national basis, potentially 
constraining additional funding. We also preliminarily conclude that if 
the highest value is created by leveraging a partner on a national 
basis, this portion of the definition of CLA would not constrain 
FirstNet in entering into such an arrangement. We seek comments on 
these preliminary conclusions, including on whether a secondary user is 
required to even perform a de minimis amount of constructing, managing, 
and operating, as discussed above, beyond paying lease fees.
    For the same reasons as stated above, we preliminarily conclude 
that a secondary user is not required to

[[Page 57067]]

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 CLA. For example, a secondary user could agree to construct 
a radio access network in a particular location, and FirstNet could 
manage and operate that radio access network, assuming the other 
elements of the definition were satisfied.
    We preliminarily conclude that use of the word ``permit'' in the 
definition of CLA indicates that an absolute requirement, such as 
through use of the term ``requires,'' is not contemplated. Thus, we 
preliminarily conclude that the technical architecture of a CLA would, 
at a minimum, have to allow use as described in Section 
6208(a)(2)(B)(i) and (B)(ii). For example, with respect to (B)(ii) and 
as discussed more fully below, local traffic of a secondary user not 
requiring long-haul transmission could be communicated locally without 
satisfying (B)(ii), and without violating the definition of a CLA 
overall.
    We also preliminarily conclude that the reference to ``network 
capacity'' in item (B)(i) of the definition of CLA is a generic 
statement referring to the combination of spectrum and network 
elements, as defined by the Act and discussed in this Notice, which 
could include the core network as well as the radio access network of 
either FirstNet alone or that of the secondary user under a CLA whereby 
the core and radio access network are used for serving both FirstNet 
public safety entities and the secondary user's commercial customers.
    Section 6208(a)(2)(B)(i) permits private entities that enter into 
CLAs with FirstNet access to such network capacity ``on a secondary 
basis for non-public safety services.'' \88\ FirstNet interprets the 
term ``secondary basis'' to mean that the network capacity will be 
available to the secondary user unless it is needed for public safety 
services in accordance with the discussion of ``secondary users'' in 
this Notice. FirstNet seeks comments on this preliminary conclusion.
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    \88\ 47 U.S.C. 1428(a)(2)(B)(i).
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    With respect to item (B)(ii) of the definition, we preliminarily 
conclude that all or a portion of the FirstNet Band 14 spectrum can be 
allocated for secondary use by a CLA lessee because the phrase, ``the 
spectrum allocated to such entity'' does not appear to require any 
minimum amount of such spectrum to be allocated. This interpretation 
would provide FirstNet with maximum flexibility in marketing excess 
network capacity.
    Further, according to item (B)(ii), the CLA lessee can use that 
spectrum to originate or terminate to or from a ``long-haul'' network 
utilized by the CLA lessee. Because the term ``long-haul'' network has 
less meaning in the context of information services, rather than 
regulated voice services, we preliminarily conclude that, without 
limitation, a ``long-haul'' network could be one that traverses 
traditional Local Access Transport Area boundaries, but other 
interpretations and more expansive boundaries are possible. We seek 
comments on this preliminary conclusion.
    We also preliminarily conclude that the reference to ``dark fiber'' 
cannot literally be interpreted as such because, once transporting 
traffic, the fiber would no longer be ``dark.'' Thus, FirstNet 
preliminarily concludes that the reference should be interpreted to 
allow the covered lessee to transport such traffic on otherwise 
previously dark fiber facilities. We seek comments on this preliminary 
conclusion, and on any alternative interpretations requiring the use of 
dark fiber of a long network, or previously unused capacity on lit 
fiber of a long haul network.
    Given the complexity of this provision, we seek comments on both 
our specific preliminary conclusions above as well as the provision 
generally, including any alternative interpretations, the potential 
policy goals underlying the provision's inclusion in the Act, the 
ramifications of alternative interpretations to the value of CLAs, and 
any technical impediments to implementing the above preliminary or 
alternative interpretations.
3. Network Equipment and Infrastructure Fee
    Section 6208(a)(3) provides for lease fees related to network 
equipment and infrastructure.\89\ As contrasted with lease fees related 
to network capacity in subsection (a)(2), or user fees in subsection 
(a)(1), FirstNet interprets this provision 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. We seek comments on 
where use under subsection (a)(1) or (a)(2) would end, and use under 
(a)(3) would begin for equipment such as antennas.
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    \89\ 47 U.S.C. 1428(a)(3).
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    Section 6208(a)(3) defines the scope of eligible equipment or 
infrastructure for which FirstNet may charge a fee to include ``any 
equipment or infrastructure, including antennas or towers, constructed 
or otherwise owned by [FirstNet] resulting from a public-private 
partnership arrangement to construct, manage, and operate the 
[NPSBN].'' \90\ We interpret ``constructed or otherwise owned by 
[FirstNet]'' as requiring that FirstNet ordered or required the 
construction of such equipment or infrastructure, paid for such 
construction, or simply owns such equipment or infrastructure. We seek 
comments on the above preliminary conclusions and whether this 
provision would also include equipment or infrastructure that FirstNet 
does not own but, through a contract, such as one resulting from a 
public-private partnership arrangement to construct, manage, and 
operate the NPSBN, has rights to sublease access to, or use of, such 
equipment or infrastructure.
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    \90\ 47 U.S.C. 1428(a)(3) (emphasis added).
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III. Ex Parte Communications

    Any non-public oral presentation to FirstNet regarding the 
substance of this Notice will be considered an ex parte presentation, 
and the substance of the meeting will be placed on the public record 
and become part of this docket. No later than two (2) business days 
after an oral presentation or meeting, an interested party must submit 
a memorandum to FirstNet summarizing the substance of the 
communication. Any written presentation provided in support of the oral 
communication or meeting will also be placed on the public record and 
become part of this docket. Such ex parte communications must be 
submitted to this docket as provided in the ADDRESSES section above and 
clearly labeled as an ex parte presentation. Federal entities are not 
subject to these procedures.

    Dated: September 17, 2014.
Stuart Kupinsky,
Chief Counsel, First Responder Network Authority.
[FR Doc. 2014-22536 Filed 9-23-14; 8:45 am]
BILLING CODE 3510-60-P