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Rivada Mercury loses FirstNet lawsuit, takes battle to states

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A federal judge has ruled in favor of the First Responders Network Authority in a bidding dispute case brought by Rivada Mercury, a partnership formed specifically to bid on the FirstNet national public safety LTE network. Rivada Mercury promptly responded to the loss by saying that it would take the battle to the states and try to win state-level contracts to build FirstNet-interoperable networks if they opt out of the national build.

Unless Rivada Mercury appeals the outcome of the lawsuit, FirstNet is free to move forward with its award of approximately $6.5 billion to deploy and run a nationwide LTE network for public safety use. In a statement, FirstNet CEO Mike Poth said, “We are pleased with the Court’s decision. This is a positive development for FirstNet and the public safety community. FirstNet intends to move expeditiously to finalize the contract for the nationwide public safety broadband network.”

A Rivada Mercury spokesman told RCR Wireless News via email that the company is examining its options for appeal and had no further comment at this time. Rivada Mercury is a partnership formed by Rivada Networks, Fujitsu, Nokia, Harris and Black & Veatch specifically to bid on the FirstNet contract, with a number of former Sprint executives high in its ranks.

Judge Elaine Kaplan of the U.S. Court of Federal Claims issued the ruling in favor of the Department of the Interior, which issued the Request for Proposal on behalf of FirstNet. The FirstNet lawsuit centered around how FirstNet evaluated and ultimately eliminated bids from the competitive range for its $6.5 billion RFP. Rivada Mercury claimed that it was wrongfully excluded from the competitive range for the network project and argued that the court should force FirstNet to reconsider its bid and allow Rivada Mercury to fully address the areas of concern or weakness that led FirstNet to exclude it in the first place. Rivada also claimed (in a heavily redacted version of its initial complaint) that “based on industry intelligence,” FirstNet’s competitive range “reduced the field to a single remaining competitor.” (Get more details on the lawsuit here.)

In the course of the litigation, AT&T joined the case as an intervenor — a third party who is not named in the original case but requests to join because of a vested interest in the outcome. AT&T joined the FirstNet lawsuit on the side of the government and stated in its court filings that its offer was within the competitive range; it is the only publicly known bidder still in the running, with both Rivada Mercury and bidder pdvwireless having been notified that their bids were no longer being considered.

The RFP was released more than a year ago and FirstNet had originally hoped to award it the contract by November 2016, but the award was held up when Rivada Mercury sued. Now, having lost out on the chance to build the network nationwide, Rivada Mercury responded to the Friday ruling by issuing a press release late that day stating that it “offers a FirstNet solution to the states“.

One of the first tasks outlined in the RFP is for FirstNet’s partner to complete a network plan for each state (within the first six months of the award) and present them to the governors of the 56 states and territories which will be covered by FirstNet. Each governor then has the option to opt out of FirstNet, in which case the state must design and build its own Radio Access Network that must be interoperable with the rest of the network and tie into the FirstNet core. Opt-out decisions must be made within 90 days of receiving the FirstNet plan, and states then have 180 days to design and submit their own RAN plans.

Some states are already looking at the opt-out option. New Hampshire, for instance, has granted a contract to Rivada Networks to develop an alternative RAN plan for the state to compare to FirstNet’s State Plan when it comes in. It’s not exactly a final opt-out, but it will give the state a chance to look at another option within the narrow window when it can.Alabama and Arizona have also put out RFPs for alternatives to FirstNet, and in November, California issued a Request for Information for proposals for its own statewide public safety LTE network so that it has possibilities to consider. Rivada Mercury made it clear that it will aggressively pursue the business of states which opt out of the plans designed for them by FirstNet. In a series of tweets on Friday, the company proclaimed that “FirstNet will be won or lost at the state level” and that it is engaging with states on their options.

“We are fully prepared to execute our plan to work with the states to build state-of-the art, dedicated networks for Public Safety,” said Joe Euteneuer, co-CEO of Rivada Networks, in the company’s Friday release. “We applaud New Hampshire’s recognition of Rivada’s experienced management team, technology, and technical expertise and believe many other states will make a similar selection.”

“FirstNet has made its choice. Now it is time for states to make theirs,” Euteneuer said. “Those that stand by idly will be forced into a federal solution that may or may not suit their needs or budgets. We look forward to working with the states to ensure that they receive a network equal to the promise made to public safety when FirstNet was created.”

 

 

Looking for more information on FirstNet and the implications of its national LTE network for public safety? Register for the RCR Wireless News webinar on the topic, coming this Wednesday. 

The post Rivada Mercury loses FirstNet lawsuit, takes battle to states appeared first on RCR Wireless News.

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christophersw
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Practical Color Theory for People Who Code

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christophersw
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Information Avoidance: How People Select Their Own Reality

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[David Bernstein] This law school ranking system is much better than U.S. News

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Back in 2004, I* wrote:

My own advice to [prospective law students] trying to determine a school’s overall “ranking” is to look at the quality of students it attracts, as determined by LSAT scores (a much more objective measure than GPA). A huge amount of information is encapsulated in the actual revealed preferences of students who decide to attend or not to attend a law school, because most of these students will have done some research before choosing a school. Such information includes desirability of geographic location (clearly a big factor if one compares, e.g., U.S. News rankings to LSAT rankings), local reputation, job placement, quality of life, tuition costs, bar passage, faculty quality and commitment to teaching, student satisfaction, national reputation, and, of course, U.S. News ranking.

Thirteen years later, Christopher Ryan and Brian Frye utlilize a similar idea in a new paper:

This article assumes that the purpose of ranking law schools is to help students decide which school to attend. Accordingly, it describes an approach to ranking law schools based entirely on the revealed preferences of students. Law schools admit applicants based almost entirely on their LSAT score and undergraduate GPA, and compete to matriculate students with the highest possible scores. Our de gustibus approach to ranking law schools assumes that the “best” law schools are the most successful at matriculating those students. This article concludes with a “best law schools ranking” based exclusively on the LSAT scores and undergraduate GPAs of matriculating students.

You can read the paper for the full results, but here is the authors’ summation:

First, the T-14s are disrupted, with Texas falling on the outside of the coveted territory. Also, several public universities in the South tend to perform better by this ranking than their peer review score would indicate, such as Alabama, William & Mary, and Georgia, all of which would make the top-25. However, Washington U. and Boston U. both slid outside the top-25. Often rated in the middle tier, BYU, SMU, and George Mason all benefit from this ranking system, landing among the top-35 law schools. Perennial top-40 schools Wisconsin, North Carolina, and Illinois all slid outside of the top-40, while Washington & Lee fell the farthest to 65. Surprising additions to the top-50 include Nebraska, Northeastern, and Pepperdine. Florida International and Belmont–which is not ranked by U.S. News– made their way into the top-100. While Texas A&M made significant strides to check in at 82, American slid precipitously back to 87. Notable schools that fell outside the top-100 include Chicago-Kent, Brooklyn, Loyola Chicago, Syracuse, and Louisville.

*Our old buggy software now attributes this post to Sasha, but I wrote it.

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christophersw
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[Eugene Volokh] ‘A, B or C’ vs. ‘A, B, or C’ — the serial comma and the law

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From Tuesday’s decision in O’Connor v. Oakhurst Dairy (1st Cir.):

For want of a comma, we have this case. It arises from a dispute between a Maine dairy company and its delivery drivers, and it concerns the scope of an exemption from Maine’s overtime law. Specifically, if that exemption used a serial comma to mark off the last of the activities that it lists, then the exemption would clearly encompass an activity that the drivers perform. And, in that event, the drivers would plainly fall within the exemption and thus outside the overtime law’s protection. But, as it happens, there is no serial comma to be found in the exemption’s list of activities, thus leading to this dispute over whether the drivers fall within the exemption from the overtime law or not.

The Maine overtime law excludes employees that are involved in “the canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution of” various perishable products. The question — should this be read as employees involved in

  1. (a) canning, (b) processing, (c) preserving, (d) freezing, (e) drying, (f) marketing, (g) storing, (h) packing for shipment, or (i) distribution of those products — a broad interpretation, favored by the employer — or
  2. (a) canning, (b) processing, (c) preserving, (d) freezing, (e) drying, (f) marketing, (g) storing, or (h) packing for shipment or distribution of those products — a narrow interpretation, favored by the employee drivers.

The court concluded that the provision was ambiguous:

[T]he drivers point to the exemption’s grammar. The drivers note that each of the terms in Exemption F that indisputably names an exempt activity — “canning, processing, preserving,” and so forth on through “packing” — is a gerund. By, contrast, “distribution” is not. And neither is “shipment.” In fact, those are the only non-gerund nouns in the exemption, other than the ones that name various foods.

Thus, the drivers argue, in accord with what is known as the parallel usage convention, that “distribution” and “shipment” must be playing the same grammatical role — and one distinct from the role that the gerunds play. See The Chicago Manual of Style § 5.212 (“Every element of a parallel series must be a functional match of the others (word, phrase, clause, sentence) and serve the same grammatical function in the sentence (e.g., noun, verb, adjective, adverb).”). In accord with that convention, the drivers read “shipment” and “distribution” each to be objects of the preposition “for” that describes the exempt activity of “packing.” And the drivers read the gerunds each to be referring to stand-alone, exempt activities — “canning, preserving …”

By contrast, in violation of the convention, Oakhurst’s reading treats one of the two non-gerunds (“distribution”) as if it is performing a distinct grammatical function from the other (“shipment”), as the latter functions as an object of a preposition while the former does not. And Oakhurst’s reading also contravenes the parallel usage convention in another way: it treats a non-gerund (again, “distribution”) as if it is performing a role in the list — naming an exempt activity in its own right — that gerunds otherwise exclusively perform.

Finally, the delivery drivers circle back to that missing comma. They acknowledge that the drafting manual advises drafters not to use serial commas to set off the final item in a list — despite the clarity that the inclusion of serial commas would often seem to bring. But the drivers point out that the drafting manual is not dogmatic on that point. The manual also contains a proviso — “Be careful if an item in the series is modified” — and then sets out several examples of how lists with modified or otherwise complex terms should be written to avoid the ambiguity that a missing serial comma would otherwise create.

Thus, the drafting manual’s seeming — and, from a judge’s point of view, entirely welcome — distaste for ambiguous lists does suggest a reason to doubt Oakhurst’s insistence that the missing comma casts no doubt on its preferred reading. For, as the drivers explain, the drafting manual cannot be read to instruct that the comma should have been omitted here if “distribution” was intended to be the last item in the list. In that event, the serial comma’s omission would give rise to just the sort of ambiguity that the manual warns drafters not to create.

Still, the drivers’ textual points do not account for what seems to us to be Oakhurst’s strongest textual rejoinder: no conjunction precedes “packing.” Rather, the only conjunction in the exemption — “or” — appears before “distribution.” And so, on the drivers’ reading, the list is strangely stingy when it comes to conjunctions, as it fails to use one to mark off the last listed activity.

To address this anomaly, the drivers cite to Antonin Scalia & Bryan Garner, Reading Law: The Interpretation of Legal Texts (2012), in which the authors observe that “[s]ometimes drafters will omit conjunctions altogether between the enumerated items [in a list],” in a technique called “asyndeton.” But those same authors point out that most legislative drafters avoid asyndeton. And, the delivery drivers do not provide any examples of Maine statutes that use this unusual grammatical device. Thus, the drivers’ reading of the text is hardly fully satisfying.

And, because of the ambiguity, the court held, the tie went to the employees: “Because, under Maine law, ambiguities in the state’s wage and hour laws must be construed liberally in order to accomplish their remedial purpose,” the drivers win and the exemption to the overtime rules is read more narrowly. A confusing matter, which, the court noted, could have been avoided if the legislature chose to use serial commas (“A, B, or C” rather than “A, B or C”) as a drafting technique (contrary to Maine practice, which seems to cut against serial commas):

We would be remiss not to note the clarifying virtues of serial commas that other jurisdictions recognize. In fact, guidance on legislative drafting in most other states and in the Congress appears to differ from Maine’s when it comes to serial commas. Some state legislative drafting manuals expressly warn that the absence of serial commas can create ambiguity concerning the last item in a list. One analysis notes that only seven states — including Maine — either do not require or expressly prohibit the use of the serial comma. … Also, drafting conventions of both chambers of the federal Congress warn against omitting the serial comma for the same reason.

And never forget the strippers, JFK and Stalin. Thanks to David Malmstrom for the pointer.

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christophersw
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Ok grammar geeks, this one's for you.
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FCC Chairman Pai champions spectrum above 95 GHz for 5G support

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During a speech at Carnegie Mellon University, FCC Chairman Ajit Pai said he would move on opening up spectrum above 95 GHz as a test bed for 5G technology.

Federal Communications Commission Chairman Ajit Pai is looking for the government agency to maintain “5G” spectrum support initiatives began by his predecessor, including the possibility of opening up access to new airwaves in bands above 95 GHz.

During a speech this week at Carnegie Mellon University’s Software Engineering Institute in Pittsburgh, Pai said the FCC is looking at allowing applications for experimentation using spectrum above the 95 GHz band to operate under Section 7 of the Telecommunications Act, which calls for the commission to act within one year on those applications deemed in the public interest.

“Those frequencies haven’t traditionally been used for mobile wireless technologies,” Pai noted in his speech. “But I believe that instead of having regulators decide which frequencies are useful, we should put spectrum out there as a test bed and leave it to the innovators to figure out how to use it. … And this determination, in turn, could accelerate the deployment of cutting-edge wireless services and other innovations.”

Pai said he was putting the FCC’s Office of Engineering and Technology in charge of compliance with Section 7 regulations.

“Going forward, if a petition or application is filed with the FCC proposing a new technology or service, we’ll supply an answer within a year,” Pai said. “To be clear, our answer won’t necessarily be yes. There could be many reasons why a new technology or service wouldn’t be in the public interest, like interference with an existing service. But we will provide an answer with dispatch. Also, it’s important to note that a Section 7 petitioner must actually propose a new technology or service. OET will make an independent assessment of this. And if the technology or service isn’t new, it won’t qualify for speedier treatment.”

Pai cited the FCC’s previous work under the Spectrum Frontiers initiative, which was approved last year under the leadership of Tom Wheeler. The initiative called for the government to open up nearly 11 gigahertz of spectrum above the 24 GHz band in support of mobile telecom services, with specific resources to include 3.85 gigahertz for licensed use in the 28 GHz, 37 GHz and 39 GHz bands, and seven gigahertz for unlicensed use across the 64 GHz to 71 GHz bands.

As part of those proceedings, the FCC also asked for comments on the potential use of spectrum above the 95 GHz band in support of planned 5G deployments.

Pai also noted FCC support for telecommunication operators to begin 5G technology trials using some of the bands included in the Spectrum Frontiers proceedings, which operators have already begun to undertake.

“The United States must continue to lead the world in wireless innovation,” Pai explained. “We led the way in the deployment of 4G LTE and we must do the same in 5G. With 5G, we can use millimeter wave spectrum to produce multigigabit speeds. 5G could transform the wireless world and provide even more robust competition to wired networks.”

Bored? Why not follow me on Twitter.

The post FCC Chairman Pai champions spectrum above 95 GHz for 5G support appeared first on RCR Wireless News.

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