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FirstNet is required by law to give Governors 90 days to review and evaluate FirstNet’s “state plans.” The clear purpose of this period is to allow a considered and well-informed decision whether to opt in to the federal proposal or opt out, and choose a different path.

But on December 19—just nine days before Governor’s decisions are due, and 81 days after the review period began—FirstNet quietly, and under cover of an asserted right to secrecy, radically changed the terms of “opt out” through a revision to its draft spectrum lease agreement.

This dramatic change makes opting out much less risky and more attractive to states, and that is to be applauded. But the manner in which it was done and the timing of the change leaves states with no opportunity to fully weigh its ramifications. It also seriously harms states that had earlier expressed an intention to opt in under the threat of “draconian” penalties for opting out. In some cases, those states canceled legally required RFPs or ended them without award, based on threats that FirstNet now seeks quietly to disown.

It is very troubling that this dramatic shift―in favor of state autonomy―has been communicated as a minor adjustment, under cover of confidential emails.

We urge all governors to obtain this updated information from FirstNet and to carefully consider the benefits of opting-out in light of the very manageable risks that will actually be imposed by FirstNet under the SMLAs.

Governors must make their states’ opt-out elections by ‪December 28, 2017‬, and governors should do so with the most current and accurate information available. Given the timing of this change, it would be prudent for all governors to opt out now, and fully review the changed circumstances in the post-opt-out period provided for under the law.

Brian Carney ‪(929)245-8331‬

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