Sovereignty: The Race to Regulate, Putting Consumers First as Communications Technology Emerges

By Clark, Justin; Davis, Sean, Jr. et al. | Federal Communications Law Journal, May 2018 | Go to article overview

Sovereignty: The Race to Regulate, Putting Consumers First as Communications Technology Emerges


Clark, Justin, Davis, Sean, Jr., Kennedy, Morgan Rucker, Nelson, Grant, LeBlanc, Travis, Federal Communications Law Journal


TABLE OF CONTENTS  JUSTIN CLARK--IS THERE FREEDOM OF CONTRACT IN THE AGE OF NATIONWIDE COMMUNICATIONS NETWORKS?                                 304 SEAN DAVIS JR.--THE HOW AND WHERE OF REGULATING COMMUNICATION TECHNOLOGY?                                                         306 MORGAN RUCKER KENNEDY--THE FEDERAL TRADE COMMISSION PROTECTS CONSUMERS AS COMMUNICATIONS TECHNOLOGY EVOLVES                      308 GRANT NELSON--FEDERAL. STATE, AND SELF-REGULATION STRATEGIES FOR DATA COLLECTION & USE                                           311 TRAVIS LEBLANC--SOVEREIGNTY DISRUPTED                               314 

Is There Freedom of Contract in the Age of Nationwide Communications Networks?

When the First Responder Network Authority Board of Directors ("FirstNet") was established in 2012, Congress touted it as a way to encourage greater interconnectivity between multiple first responder agencies and facilitate communications in a time of crisis. (1) FirstNet is an independent authority within the Department of Commerce National Telecommunications and Information Administration responsible for constructing a nationwide public-safety broadband network. (2) In March 2017, FirstNet created a public-private partnership with AT&T to build out, operate, and maintain the Nationwide Public Safety Broadband Network. (3) Apart from issues of resource priority and insufficient network coverage in rural areas, (4) the very process of FirstNet's selection of a nationwide service provider has been criticized by some practitioners. (5) The chief concern with the partnership between FirstNet and AT&T is that the details of the service agreement were largely a mystery, specifically, how gaps in network coverage would be addressed by states and which types of dispute resolution mechanisms would be used between FirstNet and AT&T. (6) Although the governors of all 50 states have now accepted FirstNet's proposed partnership with AT&T, (7) the concerns around the contract negotiation process and the absence of state involvement in vetting, selection, and negotiation of service provider terms loom large promising to plague future public-private partnerships in the area of spectrum development. These concerns are a further bi-product of the Federal Acquisition Regulation ("FAR"), and whether such a program should be used for other wide-scale communication projects moving forward. (8)

There are compelling arguments for why the decision on constructing a national first responder communications infrastructure should be handled through a framework like FirstNet. (9) However, the unique challenges of bringing together a myriad of law enforcement agencies at the local level, some of which have already developed their own localized system and do not have the opportunity to review the terms of the agreement, appears to create a need for a new procurement and development process. (10) The real culprit in all of this appears to be the strictures of FAR itself, a series of taxing rules governing the negotiation and administration of contracts between executive agencies and private third parties. (11) To open up negotiations and give state and local law enforcement authorities the opportunity to review the terms of a public-private partnership to develop a broad-reaching system, the FirstNet founding board might have considered using alternative means for soliciting bids and negotiating a contract. One such framework used by the Departments of Defense and Homeland Security in some of their fulfillment contracts is the "Other Transaction", an alternative instrument available for research and development efforts with certain agencies where traditional procurement laws and regulations are too burdensome. (12) Using such a regime may provide benefits in transactions involving multiple parties where cost-sharing and advancing dual-use technologies are key concerns. (13)

The creation, development, and administration of FirstNet could serve as a key lesson for other projects involving use and development of the spectrum, particularly as to how service providers are selected and how those providers negotiate contract terms with the numerous parties involved. …

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Sovereignty: The Race to Regulate, Putting Consumers First as Communications Technology Emerges
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