by Stephen WhitakerGovernor Scott would be making a grave mistake were he not to Opt-Out of the AT&TFirstNet plan by the December 28th deadline. Vermont will still be eligible to participate andbe fully interoperable with the national FirstNet effort. Vermont can create a plan for a RadioAccess Network (RAN) partner with an LTE cellular carrier, maintain local control, stateregulatory jurisdiction over privacy of personal information traversing FirstNet, implementtower hardening and backup power requirements necessary to survive hurricane force winds orice, and regulate the rates charged to first responders for access to the FirstNet system.AT&T has reneged on prior promises made for hardening their network and towerseven as Puerto Rico and Virgin Islands have demonstrated the absolute need for same.
The Governor would be throwing Vermonters' safety and first responders under theproverbial bus in favor of an AT&T monopolistic spectrum grab, forfeiting our $25 Million infederal grants otherwise available to spend at the State's discretion and most importantly,forfeiting the very valuable Band 14 radio spectrum to AT&T with no assurance at all that itwill ever be deployed by AT&T in Vermont for use by first responders.
This 20 Megahertz of prime radio spectrum is licensed by the FCC for use at higherpower levels resulting in nearly twice the transmit range from towers than the AT&Tcommercial spectrum being used now and proposed. These factors, combined with deficientand unsafe geographic radio coverage proposals and mapping, lack of any disaster recovery plan,no accountability nor legal recourse by the State of Vermont against AT&T makes this a simplechoice. Opt Out.
It's way too easy these days to hide flawed planning, false assumptions and erroneousconclusions behind a "confidential and proprietary" cover as in the secret AT&T state plan andthe Televate and LaFaver reports examining the details of that plan.
These 'proprietary' assertions made by AT&T and FirstNet have even stalled the UnitedStates Senate subcommittee's FirstNet inquiries temporarily and Vermont's House Energy andTechnology Committee is afraid to read the two unredacted reports which are the basis for theGovernor's flawed decision. ADS Commissioner / CIO John Quinn went so far as to threatenthe Committee Chair on November 29th with the possibility of a lawsuit by AT&T, and thatthe State of Vermont could face “liability” if the Committee members were to read the twounredacted reports which are excerpted here in the interest of real public safety. The redactedportions of those reports expose critical safety problems with AT&T plan however.
The House Committee fell for that nonsense and the Chair simply declined to acceptthe unredacted versions which inform the core arguments in this paper. Similarly, the PublicSafety Broadband Network Commission, (PSBNC) Chair railroaded an opt-in vote andrecommendation. That advisory vote was relied upon by the Governor in making his intent toopt-in decision. The PSBNC not only failed to complete their due diligence obligations butrelied on the same exaggerated claims and practices of secrecy, repeatedly violating Vermontopen meeting and public records laws to do so. So here is what they missed: This is likeshooting fish in a barrel!
On page 1 of the Televate report:
“Televate concluded that Vermont should opt-in to FirstNet's proposed network.This is based on our conclusion that AT&T's proposed service meets most of publicsafety's need in the state,..."
Who, pray tell, does Televate suggest has concluded or decided that the secret AT&Tplan "meets most of the public safety's needs in the state" ?
Now is an important opportunity to emphasize the most important recommendationmade in Vermont State Treasurer Beth Pearce's review letter andsubsequent email:
“...the Commission should look at the entire set of issues that included foremost thequality of the network for our first responders, which is outside of the scope of theTreasurer's review.” (emphasis added)
The public safety "needs" that Televate refers to have never been defined anywhere inany document nor any state Ten Year Telecommunications Plan. The vague attempts to do sonow in the form of the FirstNet Requested_Baseline_Coverage “will not be readily available tothe public” by a unanimous vote of the Vermont Public Safety Broadband NetworkCommission (PSBNC) at a meeting held in Waterbury November 2, 2016. TheBaseline_Coverage request to the federal government falsely represented that Vermonters werecontent to not have anywhere near complete LTE FirstNet coverage, and that it was sufficientfor Vermonters to rely extensively on towed-in “deployables” or satellite linked temporary cellsites. This makes no sense at all and does not meet the needs of Vermont first responders.
This initial failure of due diligence by the PSBNC has now snowballed to the extreme.These pitiful and inadaquate 'deplorables' might be delivered upon a verified request toFirstNet officials by an authorized requester at the State Department Public Safety, if the roadsare passable, and it may not be set up and connected until FOURTEEN HOURS after anincident location has been identified and deemed to be lacking 'terrestrial coverage'.
What could possibly go wrong?
This deplorable solution is proposed to cover many areas of Vermont lacking cell towercoverage. Just a few examples of uncovered “non-terrestrial” areas include the Villages of Jerichoand Underhill Center, the entire Mount Equinox resort in southern Vermont and hundredsmore Vermont back roads and residences. These locations and Vermonters' safety areapparently forfeited in the definition of “public safety's needs” agreed to by Terry LaValley andthe PSBNC in their fatally flawed “due diligence.”
Other examples of the lack of due diligence include no current, all-carriers propagationanalysis of existing cellular coverage needed to be used as a starting point for comparison, nodiscussion of personal information privacy protections, no exploration of the possible efficiencyof FirstNet integration with community broadband planning, New Hampshire's opt-out RANplans and many more. A long list is included at the end of this paper.
Every public safety first responder in Vermont will likely attest that we should design fornear full coverage, not the 76% offered by AT&T at the end of the five years and $25Mexpenditure. They will also reveal that they were not even asked as to their specific geographicpriorities for filling existing gaps in cellular network or Land Mobile Radio (LMR) coverage oreven whether they would even consider a switch of their cell service to AT&T in order toutilize FirstNet! These are not small oversights.
Nor were these numerous existing gaps in today's cell coverage ever mapped as has beenrequired annually of the Department of Public Service Connectivity Division by statute and asa fundamental starting point for any credible assessment of "public safety's needs" andcompeting proposals for public safety broadband coverage by AT&T or others.
The Televate report, on page 1, states:"This proposed buildout, including the addition of 39 new sites, is predicted to serve76% of the land area of the state."
To which Ron Kumetz, PSBNC member, radio professional and rural VermontAssistant Fire Chief responded after an email inquiry:
“Everyone will tell you that the number you are shooting for is 95% or so ofgeographic area. Beyond that the cost vs. gain curve takes a skyward turn thatmakes the cost difficult to justify.”
And then to further undermine the credibility of their own report, Televate inserts thevague terms "likely" and "risky" as proven scare tactics to cast shade on those who Televatemight assume could be invited to the table to negotiate a public/private partnership and craft abetter FirstNet RAN plan with the State. (emphasis added next)
"...and that opting-out is likely to incur a substantial amount of riskgiven Televate's knowledge of the likely participants in an opt-out RFP."
Yet in a footnote on the same opening page of this same Televate report:
“This position is based on Televate's understanding of the wirelessmarketplace, and the understanding that financial sustainability requires asubstantial number of customers in Vermont in an already saturatedmarketplace. In the event that the State was provided with a proposal thatgives the State confidence that the bidder will succeed, and that a better planthan AT&T's was delivered, the State may consider opt-out. However,Televate has reservations regarding the availability of a viable opt-outoption.”
Note that there is no supporting information to define the "already saturated marketplace"and they do, to their credit, recognize that the possibility that "a better plan" exists and thatshould one be examined, the state "may consider opt-out." Televate also knows full well thattheir report was deemed 'confidential', i.e. not going to be publicly released (at least officially)and that the timeframe or window of opportunity remaining for examination of "a better plan"wasrapidly closing.
A fully detailed plan for an opt-out RAN, crafted in partnership with another LTEcarrier or integrator, would not be completed until after an opt-out decision is made and apublic/private partnership agreement is executed. The PSBNC chair's recent efforts to run asham RFP process to disqualify Rivada arerevealing.
The Televate report opens page 2 with the following sentence, referring to AT&T's plan:
“This service is implemented at no cost or risk to the state and positions thestate at no risk of experiencing default or failure, which would result insubstantial financial penalties.”
This assertion is fundamentally flawed. The enormous risk to the state that is notacknowledged here nor even examined in the reports at all is that AT&T could fail to deliveron even the 76% of promised coverage, not harden the towers or install generators at each towerto “Public Safety Grade”, not protect the fiber backhaul with ring architectures, all of whichmakes Vermont vulnerable to massive potential for failures when the next Hurricane or superstorm wipes out our cellular communications infrastructure as happened recently in PuertoRico, the Virgin Islands and the California wildfires.
Note the almost surreal deception inherent in the bold and unfounded assertion in theTelevate report that this hypothetical risk of “failure” by the state's vendor/partner after an optoutdecision is made, completed plan have been submitted, approvals granted by both the FCCand the NTIA, spectrum lease and RAN build, however "which would result in substantialfinancial penalties."
Nor does the Televate report address the risk that AT&T might otherwise squanderVermont's $25 Million dollar share of the NTIA grant funding or that revenues from VermontFirstNet subscribers might be reinvested in other states at greater profit for AT&T. The riskthat AT&T might not even deploy the higher power Band 14 spectrum in Vermont, when andwhere we need it most, is also very real, yet in either of these circumstances, Vermont will haveno legal recourse whatsoever to sue AT&T nor to compel performance. Nor will Vermont thenhave an option under current law to revert to an opt-out plan and reclaim the NTIA grantfunding and the use of the Band 14 radio spectrum.
Vermont can opt out now and still default back into the AT&T plan if we fail to get ourRAN plan approved by NTIA or FCC or simply by deciding not to pursue the $25M grantand the Band 14 spectrum lease. In this broader context, Opt-out is not risky at all, save for theobligation, (or dare I say OPPORTUNITY) to finally create a real telecommunications plangrounded on a comprehensive inventory of our available and visible telecommunicationsinfrastructure.
Televate's reported Conclusion on page 15, states as follows:“Based on the technical merits of AT&T’s proposal and Televate’sunderstanding of opt-out risks, Televate recommends that the State ofVermont opt-in to the FirstNet service.We believe it is unlikelythattheState will secure an opt-out partner to provide a better solution than whatAT&T offers. Opting-out may introduce enormous financial risk thatwould be borne by the state; an opt-out partner would have theresponsibility of deploying a comparable or better solution than proposed byFirstNet/AT&T, and would be required to bond/insure the financialpenalties in the event of a failure to perform.”
The reader should at least attempt to reconcile this statement with the recentannouncement of New Hampshire's Governor Sununu and his high praise and full confidencein the findings and recommendations of his own state's credible due diligence andrecommendation to work with Rivada and partners on an opt-out RAN.
To decipher Televate's conclusory understanding of opt-out risks, or for that matter,their stated belief that “it is unlikely that the State will secure an opt-out partner”, or that this“may introduce enormous financial risk that would be borne by the state”, one need only read theremainder of the sentence which concludes with a reference to “a comparable or better solution”and bonding or insurance to assure completion. Televate thus went full circle from creating thesignificant fear and doubt, to proposing their own simple solution and reassurance. Now we canall feel better!
Televate also claims to have completed coverage analysis despite the fact that AT&Trefused to provide them with computer readable propagation/coverage models or GISshapefiles. Televate has also claimed to have done propagation modeling based uponhypothetical tower locations not yet identified; AT&T claims in their emails detailing their“final offer” which are attached to the Governor's opt-in intent letter, to have not yet begunshopping for tower sites until after an opt-in decision is made. Both cannot possibly be true!
Propagation modeling can only be done from an exact tower location.The LaFaver report also highlights this supposed financial risk to Vermont, humorouslyfound in the "CONS" section (how ironic) of his opt-in analysis on page 4:
“It is explained that FirstNet will penalize AT&T for not meeting timelines ofdeployment, but Vermont doesn't have the specifics surrounding thosepenalties, nor does it appear that Vermont will be provided anyconcessions/penalties from FirstNet, or AT&T if timelines are missed.”
The tabular Risks Analysis on Page 8 of the Lafaver report, though shrunken to bealmost illegible, (and then REDACTED) contains the following selections which areapparently the identification of serious problems with the AT&T plan yet this did not dissuadethe career RBOC/AT&T executive from stillrecommending AT&T as an opt-in choice.
“Inability to see AT&T contract with FirstNetand the fact that there has been nothingmore than a review of the RFP, Coeur can'tdetermine linkage to liabilities andpossibilities to State benefits.”
“Without a documented Disaster Planand especially an Escalation Plan foroutages, the state will be exposed tonon-availability without authority toproperly manage the vendor.”
“Any gap of time allows for risk of humanlife or unmanaged occurrences withinVermont”
“Effective utilization of Band 14spectrum for Capacity and Coverage.Both carriers have provided littleevidence to substantiate their Plans.”
Now back to the Televate report. The fallacy of the use of the word "would" in theirphrase “enormous f inancial risk that wou l d be borne by the state” is simply impossible to reconcilewith the statements made by FirstNet CEO Michael Poth at the November 1st CongressionalHouse Communications and Technology subcommittee hearing where it has been reported bytwo national press outlets that he stated:
At the hearing, FirstNet CEO Michael Poth called the figures “unlikely worst casescenarios” and that they were “a draft of some concepts that would not even be discusseduntil later in the process”.
* * *
At the November 1st House hearing, FirstNet Chief Executive Officer MichaelPoth stressed that FirstNet will work to "minimize" the impact on states and firstresponders of opt-out states that fail to fulfill the terms of SMLAs. He also saidthat the agreements provided to states are only "working draft" documents.
Similarly, both Tim LaFaver's report and Treasurer Beth Pearce relied fundamentally onthose perceptions of “risks” as they interpreted the intentionally scary and confidentialSpectrum Manager Lease Agreement (SMLA) made public just in time for Halloween.
Included in the Draft SMLA provisions are anti-competitive and coercive terms and conditionswhich propose massive penalties in the event of a failure to meet these ill-defined terms andconditions for interoperability, security and on-demand modernization upgrades as well asprohibitions on connecting a state's core to any other non AT&T core. These bogus threatsincluded in the draft document were used by Televate, LaFaver and even State Treasurer Pearceas a basis to justify their opt-in recommendations. Those central elements of all of theirrecommendations to opt-in should thus be wholly disregarded.
The LaFaver report, under opt-out "CONS," details an argument also based entirely onthe discredited draft SMLA which FirstNet CEO Michael Poth has disavowed and backpedaledbefore the Congressional subcommittee on November 1st. The LaFaver report stateson page 6:
“Secondly, yet equally crucial, is that FirstNet has imposed a great deal of financialburden upon the states for OPT-OUT decisions if certain targets are not met. At thetime of the document, there are several challenges at a state and national level statingthat the penalties outlined in the Spectrum Manager Lease Agreement (SMLA)Summary are not legal or well supported.
Below are the maximum levels of the SMLA Summary:
- Spectrum Cost for 25 years $ 6.075M
- Disincentive for not meeting Penetration Levels $ 29.786M max
- Termination to OPT-BACK in max (beyond 900 days) $176.025M max
Total Maximum Vermont Exposure $211.886M”
This statement is patently false. FirstNet has not and likely will not be allowed toimpose any financial burdens on the states which exercise their legal right to opt-out. There arethose, AT&T primarily, with a $6.5B motivation to create this impression of huge financialrisks but I would not have imagined that our Independent Expert Reviewer would fall into thesame trap and go to the extreme of making an opt-in recommendation based upon these ghosts.
The Draft SMLA is exactly that, a Draft. The legal basis, or more accurately stated, thelack of any legal basis for the estimated proposed penalties and even the charges for leasingspectrum being back-dated to the opt out decision are sure to be fully investigated and resolvedat least a full year before any SMLA will be entered by any opt out states. Pending QuestionsFor the Record (QFRs) submitted by Vermont Congressman Welch, which are targeted totackle those questions head on and the witnesses' responses, or evasions, will shine considerablelight on the falsity or baselessness of the threats as well as other contradictions.
To have Vermont's so-called Independent Review consultant bandy about scary threatsof $211 Million Dollars in penalties under such circumstances when he was fully aware of thelack of any credible basis for those threats in the Draft SMLA is a clear demonstration of biasor client manipulation, or both.
The Rivada / Macquerie team has recently addressed the financial risks considerations ina letter to the State of New Hampshire wherein they offer the following rationale andassurances:
“The following is a list of feasible solutions Rivada will put in place,
- Insurance: Rivada will put in place an insurance policy to cover the SMLA Termination
Penalties. This insurance policy would be adjusted to reflect the declining penalties over the
life of the contract. Rivada is working with Telecoms specialists at Lloyd's of London specialist
insurance market where syndicates join to insure essential, complex and critical project risks.
- Consortium Guarantee. In addition to a Rivada Guarantee, Rivada will arrange for a company
guarantee from those of Rivada’ s partners with substantial balance sheets capable of covering
the SMLA Termination Penalty.
- Rivada Collateralization. Rivada will arrange for satisfactory collateral (such as an
irrevocable bank letter of credit or other security including the placing of monies in
escrow) to pledge to the State, in the event the SMLA Termination Penalty was to remain
and is triggered. “
Potential partnership or vendor/ cooperation with a New Hampshire Opt-Out RANproject also holds great promise for Vermont in the way of very economical resiliency and failoverreliability enhancements. These potentials were not explored in either report nor by thePSBNC.
New Hampshire currently leads the nation on FirstNet opt-out analysis due diligencealong with Colorado, Washington Oregon. Vermont absolutely should be among these leadersdesigning, building and operating a better, more reliable FirstNet, protecting privacy andintegrating the infrastructure with jobs creation and training.
Now lets take a look at the thoroughness of the LaFaver Report and its detailed analysisof the merits of AT&T's technical proposal which he recommends as the opt-in choice:
“As previously described, the FirstNet Proposal from AT&T has beenthoroughly built and vetted within the Federal contract administration,however Coeur/Vermont doesn ' t have access to: (emphasis added)
- AT&T Agreement
- AT&T penalty details
- AT&T's use of valuable spectrum in band 14 and 700Mhz ranges, and pay
FirstNet use fees.
- Utilization of back-bone facilities of AT&T's or failover redundancy plans.”
In short, Tim LaFaver is here admitting that he has no knowledge of the technicaldetails, economics or reliability and resiliency provisions of the AT&T proposal which areabsolutely necessary to support his recommending that Vermont pursue an opt-in decision.
This is due primarily to FirstNet and AT&T having refused to disclose these contracts.LaFaver's opt-in recommendation therefore fundamentally lacks foundation.
Here it is also necessary and useful to examine the specific Vermont statute governingthe CIO's requirement for conducting an Independent Expert Review required for any“information technology activity” incurring more than $1M in life cycle costs. The LaFaverreport is falsely claimed by the CIO John Quinn to be compliant with this statutory section:
3 VSA § 2222 (g)
(1) The Secretary of Administration shall obtain independent expert review of anyrecommendation for any information technology activity initiated after July 1, 1996, asinformation technology activity is defined by subdivision (a)(10) of this section, whenits total cost is $1,000,000.00 or greater or when required by the State Chief InformationOfficer. Documentation of this independent review shall be included when plans aresubmitted for review pursuant to subdivisions (a)(9) and (10) of this section. Theindependent review shall include:
(A) an acquisition cost assessment;
(B) a technology architecture review;
(C) an implementation plan assessment;
(D) a cost analysis and a model for benefit analysis;
(E) a procurement negotiation advisory services contract; and
(F) an impact analysis on net operating costs for the agency carrying out theactivity.
One need not be rocket scientist or IT engineer to recognize the fact that Mr. LaFaver,without access to the FirstNet/AT&T Contract, or as he here refers to it, “Agreement,” penaltyprovisions or possibly most importantly, “Utilization of back-bone facilities of AT&T's orfailover redundancy plans”; it is absolutely impossible for his investigation to be completed tomeet the Independent Review requirements of Vermont statutes, and thus, his recommendationthat Vermont should ignore these massive yet essential elements of information and simply optinto the FirstNet AT&T plan is fundamentally flawed and dangerous, and should bedisregarded.
This cursory analysis of the fundamentally flawed basis for recommendations to theGovernor to opt-in made both in the Tim LaFaver / Coeur Group report for $20k+ as acontract with the CIO; and Televate's report, under a $90k contract with the Department ofPublic Safety; the specific unmet statutory requirements for an Independent Expert Review,the State Treasurer's limited scope of review and her opt-in recommendation, all are foundedon vague and now well refuted claims. The “red herring” of exaggerated and unsupportedpotential financial risks are all alluded to in the Draft SMLA. These add up to a flawed andunsupported decision by Governor Scott which, if not reversed, puts the public, first respondersand Vermont's economy at risk.
It should also be noted as an aside that the requirements that an independent reviewcontractor have at least some verifiable evidence of 'Independence', would almost certainly havenecessitated that Tim LaFaver and the Coeur Group be disqualified from this review for anobvious conflict of interest.
The Coeur Group presently has no visible web site nor any Google indexed track recordof providing technology architecture review or cost- benefit analyses.
The Globulus enterprise, also listing Tim LaFaver as a founder/principal, offers serviceswhich notably do not include technology architecture reviews or life cycle cost analysis orbenefit models for telecommunications infrastructure projects.
It must have been noticed however prior to his being retained, that the Zoom-Infodirectory lists Tim Lafaver as being an Associate Vice President at AT&T.
Even if Mr. LaFaver has since unaffiliated himself from AT&T in recent years after along 22 year career at Southwestern Bell and SBC, followed by more than a decade ofemployment with AT&T, these facts alone should have resulted in his being disqualified fromany semblance of being an “Independent” Expert Reviewer of any project involving AT&Tplans for Vermont. What was John Quinn thinking? Or was there a pre-determined outcome?
In fact, Tim LaFaver did not even bother to disclose the facts of his affiliations withAT&T to me prior to our first of two dinner meetings last month to address my analysis ofFirstNet's weaknesses and potential missed opportunities were Vermont to opt-in.Independent Reviewer Tim LaFaver also repeatedly assured me that he was including inhis report a Catalog of the multitude of disjointed and uncoordinated telecom projects whichhe learned about in Vermont, and the serious and immediate need for telecom governancereform. These findings were most likely removed from report pursuant to the client's wishes(JQ)
In conclusion, Vermont now has an enormous opportunity to design a better FirstNet tosupport public safety, our first responders and to grow our economy, and to finally remedy thechronic failures in our telecommunications planning efforts. The gross inadequacy of the
Televate and LaFaver reports, and the failures of due diligence by the PSBNC demonstrate theneed for an opt-out decision and a new governance model for telecommunications and IT.
DPS / PSBNC Due Diligence? PSBNC repeatedly refused to address the following:
• Baseline_Coverage_Requested inadequate from the start;
• State secrets approach by PSBNC to release of all records;
• $400-500k SLIGP grant squandered on ineffective engagement/consultation;
• Repeated refusal by PSBNC and Televate to begin comparison process with anindependent, all carriers propagation study;
• Privacy implications of FirstNet data leaving Vermont onto AT&T's core;
• Terms of Use Restrictions on Portal Access conflict with Public Records Laws;
• Draft Plan not so secret after all (400-600 pages produced without restrictions);
• Economic Development impacts never considered nor included in RFP;
• No consideration of Jobs growth potential of opt-out vs opt-in scenarios;
• No consideration of Broadband integration strategies w/ middle mile fiber;
• No consideration of LRM integration / tower sharing
• No consideration of NG911 integration
• No consideration of MCPTT and VoLTE pilot project potential;
• No consideration of High Power Band 14 potential uses.
This commentary is by Stephen Whitaker, of Montpelier, who for more than 25 years has voluntarily served as a citizen advocate for government accountability focused on public records, information access, privacy, technology and telecommunications.