by Stephen Whitaker Governor Scott would be making a grave mistake were he not to Opt-Out of the AT&T FirstNet plan by the December 28th deadline. Vermont will still be eligible to participate and be fully interoperable with the national FirstNet effort. Vermont can create a plan for a Radio Access Network (RAN) partner with an LTE cellular carrier, maintain local control, state regulatory jurisdiction over privacy of personal information traversing FirstNet, implement tower hardening and backup power requirements necessary to survive hurricane force winds or ice, 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 towers even as Puerto Rico and Virgin Islands have demonstrated the absolute need for same.
The Governor would be throwing Vermonters' safety and first responders under the proverbial bus in favor of an AT&T monopolistic spectrum grab, forfeiting our $25 Million in federal 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 it will 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 higher power levels resulting in nearly twice the transmit range from towers than the AT&T commercial spectrum being used now and proposed. These factors, combined with deficient and 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 simple choice. Opt Out.
It's way too easy these days to hide flawed planning, false assumptions and erroneous conclusions behind a "confidential and proprietary" cover as in the secret AT&T state plan and the Televate and LaFaver reports examining the details of that plan.
These 'proprietary' assertions made by AT&T and FirstNet have even stalled the United States Senate subcommittee's FirstNet inquiries temporarily and Vermont's House Energy and Technology Committee is afraid to read the two unredacted reports which are the basis for the Governor's flawed decision. ADS Commissioner / CIO John Quinn went so far as to threaten the Committee Chair on November 29th with the possibility of a lawsuit by AT&T, and that the State of Vermont could face “liability” if the Committee members were to read the two unredacted reports which are excerpted here in the interest of real public safety. The redacted portions 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 accept the unredacted versions which inform the core arguments in this paper. Similarly, the Public Safety Broadband Network Commission, (PSBNC) Chair railroaded an opt-in vote and recommendation. That advisory vote was relied upon by the Governor in making his intent to opt-in decision. The PSBNC not only failed to complete their due diligence obligations but relied on the same exaggerated claims and practices of secrecy, repeatedly violating Vermont open meeting and public records laws to do so. So here is what they missed: This is like shooting 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 public safety's need in the state,..."
Who, pray tell, does Televate suggest has concluded or decided that the secret AT&T plan "meets most of the public safety's needs in the state" ?
Now is an important opportunity to emphasize the most important recommendation made in Vermont State Treasurer Beth Pearce's review letter and subsequent email:
“...the Commission should look at the entire set of issues that included foremost the quality of the network for our first responders, which is outside of the scope of the Treasurer's review.” (emphasis added)
The public safety "needs" that Televate refers to have never been defined anywhere in any document nor any state Ten Year Telecommunications Plan. The vague attempts to do so now in the form of the FirstNet Requested_Baseline_Coverage “will not be readily available to the public” by a unanimous vote of the Vermont Public Safety Broadband Network Commission (PSBNC) at a meeting held in Waterbury November 2, 2016. The Baseline_Coverage request to the federal government falsely represented that Vermonters were content to not have anywhere near complete LTE FirstNet coverage, and that it was sufficient for Vermonters to rely extensively on towed-in “deployables” or satellite linked temporary cell sites. 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 to FirstNet officials by an authorized requester at the State Department Public Safety, if the roads are passable, and it may not be set up and connected until FOURTEEN HOURS after an incident 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 tower coverage. Just a few examples of uncovered “non-terrestrial” areas include the Villages of Jericho and Underhill Center, the entire Mount Equinox resort in southern Vermont and hundreds more Vermont back roads and residences. These locations and Vermonters' safety are apparently forfeited in the definition of “public safety's needs” agreed to by Terry LaValley and the PSBNC in their fatally flawed “due diligence.”
Other examples of the lack of due diligence include no current, all-carriers propagation analysis of existing cellular coverage needed to be used as a starting point for comparison, no discussion of personal information privacy protections, no exploration of the possible efficiency of FirstNet integration with community broadband planning, New Hampshire's opt-out RAN plans 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 for near full coverage, not the 76% offered by AT&T at the end of the five years and $25M expenditure. They will also reveal that they were not even asked as to their specific geographic priorities for filling existing gaps in cellular network or Land Mobile Radio (LMR) coverage or even whether they would even consider a switch of their cell service to AT&T in order to utilize FirstNet! These are not small oversights.
Nor were these numerous existing gaps in today's cell coverage ever mapped as has been required annually of the Department of Public Service Connectivity Division by statute and as a fundamental starting point for any credible assessment of "public safety's needs" and competing 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 serve 76% of the land area of the state."
To which Ron Kumetz, PSBNC member, radio professional and rural Vermont Assistant Fire Chief responded after an email inquiry:
“Everyone will tell you that the number you are shooting for is 95% or so of geographic area. Beyond that the cost vs. gain curve takes a skyward turn that makes the cost difficult to justify.”
And then to further undermine the credibility of their own report, Televate inserts the vague terms "likely" and "risky" as proven scare tactics to cast shade on those who Televate might assume could be invited to the table to negotiate a public/private partnership and craft a better FirstNet RAN plan with the State. (emphasis added next)
"...and that opting-out is likely to incur a substantial amount of risk given 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 wireless marketplace, and the understanding that financial sustainability requires a substantial number of customers in Vermont in an already saturated marketplace. In the event that the State was provided with a proposal that gives the State confidence that the bidder will succeed, and that a better plan than AT&T's was delivered, the State may consider opt-out. However, Televate has reservations regarding the availability of a viable opt-out option.”
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 that should one be examined, the state "may consider opt-out." Televate also knows full well that their 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" was rapidly closing.
A fully detailed plan for an opt-out RAN, crafted in partnership with another LTE carrier or integrator, would not be completed until after an opt-out decision is made and a public/private partnership agreement is executed. The PSBNC chair's recent efforts to run a sham RFP process to disqualify Rivada are revealing.
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 the state at no risk of experiencing default or failure, which would result in substantial financial penalties.”
This assertion is fundamentally flawed. The enormous risk to the state that is not acknowledged here nor even examined in the reports at all is that AT&T could fail to deliver on even the 76% of promised coverage, not harden the towers or install generators at each tower to “Public Safety Grade”, not protect the fiber backhaul with ring architectures, all of which makes Vermont vulnerable to massive potential for failures when the next Hurricane or super storm wipes out our cellular communications infrastructure as happened recently in Puerto Rico, the Virgin Islands and the California wildfires.
Note the almost surreal deception inherent in the bold and unfounded assertion in the Televate report that this hypothetical risk of “failure” by the state's vendor/partner after an optout decision is made, completed plan have been submitted, approvals granted by both the FCC and the NTIA, spectrum lease and RAN build, however "which would result in substantial financial penalties."
Nor does the Televate report address the risk that AT&T might otherwise squander Vermont's $25 Million dollar share of the NTIA grant funding or that revenues from Vermont FirstNet subscribers might be reinvested in other states at greater profit for AT&T. The risk that AT&T might not even deploy the higher power Band 14 spectrum in Vermont, when and where we need it most, is also very real, yet in either of these circumstances, Vermont will have no legal recourse whatsoever to sue AT&T nor to compel performance. Nor will Vermont then have an option under current law to revert to an opt-out plan and reclaim the NTIA grant funding 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 our RAN plan approved by NTIA or FCC or simply by deciding not to pursue the $25M grant and the Band 14 spectrum lease. In this broader context, Opt-out is not risky at all, save for the obligation, (or dare I say OPPORTUNITY) to finally create a real telecommunications plan grounded on a comprehensive inventory of our available and visible telecommunications infrastructure.
Televate's reported Conclusion on page 15, states as follows: “Based on the technical merits of AT&T’s proposal and Televate’s understanding of opt-out risks, Televate recommends that the State of Vermont opt-in to the FirstNet service. We believe it is unlikely that the State will secure an opt-out partner to provide a better solution than what AT&T offers. Opting-out may introduce enormous financial risk that would be borne by the state; an opt-out partner would have the responsibility of deploying a comparable or better solution than proposed by FirstNet/AT&T, and would be required to bond/insure the financial penalties in the event of a failure to perform.”
The reader should at least attempt to reconcile this statement with the recent announcement of New Hampshire's Governor Sununu and his high praise and full confidence in the findings and recommendations of his own state's credible due diligence and recommendation 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 the remainder 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 the significant fear and doubt, to proposing their own simple solution and reassurance. Now we can all feel better!
Televate also claims to have completed coverage analysis despite the fact that AT&T refused to provide them with computer readable propagation/coverage models or GIS shapefiles. Televate has also claimed to have done propagation modeling based upon hypothetical 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 begun shopping 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, humorously found 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 of deployment, but Vermont doesn't have the specifics surrounding those penalties, nor does it appear that Vermont will be provided any concessions/penalties from FirstNet, or AT&T if timelines are missed.”
The tabular Risks Analysis on Page 8 of the Lafaver report, though shrunken to be almost illegible, (and then REDACTED) contains the following selections which are apparently the identification of serious problems with the AT&T plan yet this did not dissuade the career RBOC/AT&T executive from still recommending AT&T as an opt-in choice.
“Inability to see AT&T contract with FirstNet and the fact that there has been nothing more than a review of the RFP, Coeur can't determine linkage to liabilities and possibilities to State benefits.”
“Without a documented Disaster Plan and especially an Escalation Plan for outages, the state will be exposed to non-availability without authority to properly manage the vendor.”
“Any gap of time allows for risk of human life or unmanaged occurrences within Vermont”
“Effective utilization of Band 14 spectrum for Capacity and Coverage. Both carriers have provided little evidence to substantiate their Plans.”
Now back to the Televate report. The fallacy of the use of the word "would" in their phrase “enormous f inancial risk that wou l d be borne by the state” is simply impossible to reconcile with the statements made by FirstNet CEO Michael Poth at the November 1st Congressional House Communications and Technology subcommittee hearing where it has been reported by two national press outlets that he stated:
At the hearing, FirstNet CEO Michael Poth called the figures “unlikely worst case scenarios” and that they were “a draft of some concepts that would not even be discussed until later in the process”.
* * *
At the November 1st House hearing, FirstNet Chief Executive Officer Michael Poth stressed that FirstNet will work to "minimize" the impact on states and first responders of opt-out states that fail to fulfill the terms of SMLAs. He also said that the agreements provided to states are only "working draft" documents.
Similarly, both Tim LaFaver's report and Treasurer Beth Pearce relied fundamentally on those perceptions of “risks” as they interpreted the intentionally scary and confidential Spectrum Manager Lease Agreement (SMLA) made public just in time for Halloween.
Included in the Draft SMLA provisions are anti-competitive and coercive terms and conditions which propose massive penalties in the event of a failure to meet these ill-defined terms and conditions for interoperability, security and on-demand modernization upgrades as well as prohibitions on connecting a state's core to any other non AT&T core. These bogus threats included in the draft document were used by Televate, LaFaver and even State Treasurer Pearce as a basis to justify their opt-in recommendations. Those central elements of all of their recommendations to opt-in should thus be wholly disregarded.
The LaFaver report, under opt-out "CONS," details an argument also based entirely on the discredited draft SMLA which FirstNet CEO Michael Poth has disavowed and backpedaled before the Congressional subcommittee on November 1st. The LaFaver report states on page 6:
“Secondly, yet equally crucial, is that FirstNet has imposed a great deal of financial burden upon the states for OPT-OUT decisions if certain targets are not met. At the time of the document, there are several challenges at a state and national level stating that 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 to impose any financial burdens on the states which exercise their legal right to opt-out. There are those, AT&T primarily, with a $6.5B motivation to create this impression of huge financial risks but I would not have imagined that our Independent Expert Reviewer would fall into the same 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, the lack of any legal basis for the estimated proposed penalties and even the charges for leasing spectrum being back-dated to the opt out decision are sure to be fully investigated and resolved at least a full year before any SMLA will be entered by any opt out states. Pending Questions For the Record (QFRs) submitted by Vermont Congressman Welch, which are targeted to tackle those questions head on and the witnesses' responses, or evasions, will shine considerable light 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 threats of $211 Million Dollars in penalties under such circumstances when he was fully aware of the lack of any credible basis for those threats in the Draft SMLA is a clear demonstration of bias or client manipulation, or both.
The Rivada / Macquerie team has recently addressed the financial risks considerations in a letter to the State of New Hampshire wherein they offer the following rationale and assurances:
“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 RAN project also holds great promise for Vermont in the way of very economical resiliency and failover reliability enhancements. These potentials were not explored in either report nor by the PSBNC.
New Hampshire currently leads the nation on FirstNet opt-out analysis due diligence along with Colorado, Washington Oregon. Vermont absolutely should be among these leaders designing, building and operating a better, more reliable FirstNet, protecting privacy and integrating the infrastructure with jobs creation and training.
Now lets take a look at the thoroughness of the LaFaver Report and its detailed analysis of 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 been thoroughly 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 technical details, economics or reliability and resiliency provisions of the AT&T proposal which are absolutely 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 governing the CIO's requirement for conducting an Independent Expert Review required for any “information technology activity” incurring more than $1M in life cycle costs. The LaFaver report 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 any recommendation for any information technology activity initiated after July 1, 1996, as information technology activity is defined by subdivision (a)(10) of this section, when its total cost is $1,000,000.00 or greater or when required by the State Chief Information Officer. Documentation of this independent review shall be included when plans are submitted for review pursuant to subdivisions (a)(9) and (10) of this section. The independent 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 the activity.
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,” penalty provisions or possibly most importantly, “Utilization of back-bone facilities of AT&T's or failover redundancy plans”; it is absolutely impossible for his investigation to be completed to meet the Independent Review requirements of Vermont statutes, and thus, his recommendation that Vermont should ignore these massive yet essential elements of information and simply optin to the FirstNet AT&T plan is fundamentally flawed and dangerous, and should be disregarded.
This cursory analysis of the fundamentally flawed basis for recommendations to the Governor to opt-in made both in the Tim LaFaver / Coeur Group report for $20k+ as a contract with the CIO; and Televate's report, under a $90k contract with the Department of Public 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 founded on vague and now well refuted claims. The “red herring” of exaggerated and unsupported potential financial risks are all alluded to in the Draft SMLA. These add up to a flawed and unsupported decision by Governor Scott which, if not reversed, puts the public, first responders and Vermont's economy at risk.
It should also be noted as an aside that the requirements that an independent review contractor have at least some verifiable evidence of 'Independence', would almost certainly have necessitated that Tim LaFaver and the Coeur Group be disqualified from this review for an obvious conflict of interest.
The Coeur Group presently has no visible web site nor any Google indexed track record of providing technology architecture review or cost- benefit analyses.
The Globulus enterprise, also listing Tim LaFaver as a founder/principal, offers services which notably do not include technology architecture reviews or life cycle cost analysis or benefit models for telecommunications infrastructure projects.
It must have been noticed however prior to his being retained, that the Zoom-Info directory 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 a long 22 year career at Southwestern Bell and SBC, followed by more than a decade of employment with AT&T, these facts alone should have resulted in his being disqualified from any semblance of being an “Independent” Expert Reviewer of any project involving AT&T plans 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 with AT&T to me prior to our first of two dinner meetings last month to address my analysis of FirstNet's weaknesses and potential missed opportunities were Vermont to opt-in. Independent Reviewer Tim LaFaver also repeatedly assured me that he was including in his report a Catalog of the multitude of disjointed and uncoordinated telecom projects which he learned about in Vermont, and the serious and immediate need for telecom governance reform. 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 to support public safety, our first responders and to grow our economy, and to finally remedy the chronic 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 the need 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 an independent, all carriers propagation study;
• Privacy implications of FirstNet data leaving Vermont onto AT&T's core;
• 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.