Sending out an S.O.S.: public safety communications interoperability as a collective action problem.

• Author: Brito, Jerry

1. INTRODUCTION II. WHY DO WE LACK INTEROPERABILITY? A. Collective Action Problem B. Where Are the Entrepreneurs? C. Inefficiency III. A POSITIVE SELECTIVE INCENTIVE A. Spectrum Integration B. Case Studies 1. Walky-Talky 2. RACOM 3. O2 Airwave IV. ACHIEVING INTEROPERABILITY A. Applying the Lessons B. Competitive Public Safety Licenses V. CONCLUSION I. INTRODUCTION

   On September 11, 2001, officers from the New York City police and fire departments responded to the attacks on the World Trade Center. That morning, police and firefighters entered each of the Twin Towers in an effort to help those inside. Shortly after the South Tower collapsed, an officer in a police helicopter hovering over the scene radioed to his colleagues, "About 15 floors down from the top, it looks like it's glowing red. It's inevitable." (1) Then another police pilot reported, "I don't think this has too much longer to go. I would evacuate all people within the area of that second building." (2)

   Police officers inside the building and on the ground heard those warnings and proceeded to evacuate. (3) Most got out. However, because their radios were not compatible with those of the police, firefighters inside the tower could not hear the message. (4) One hundred and twenty-one firefighters died inside the North Tower when it collapsed twenty-one minutes after the first warning was issued over police radio. (5)

   This anecdote from 9/11 is perhaps the best way to encapsulate the problem of public safety communications interoperability. Plainly put, if police officers are not able to talk to firefighters in their own city when they both respond to the same event, the results can be disastrous. And it is not just police officers and firefighters who need to talk to each other. Emergencies can overflow to neighboring jurisdictions, requiring cooperation between neighboring agencies. Also, everyday emergencies elicit responses from many actors: police, fire, and Emergency Medical Services ("EMS"), as well as local, state, and federal agencies of every stripe. The attack on the Pentagon on 9/11 saw "900 personnel representing 50 secondary agencies responding to the scene just minutes after the attack [and they] had no means of direct radio communications with first responders." (6) This happens because jurisdictions often overlap. For example, one emergency can take place within the geographical jurisdiction of a police department, a sheriff's office, the state police, and the Federal Bureau of Investigation ("FBI"). All must communicate in order to coordinate an effective response.

   Unfortunately, however, the agencies and jurisdictions that should be able to talk to each other often cannot. The reason is that their communications systems are not interoperable. That is, because they use different frequencies or transmission standards, one agency's radios cannot receive or transmit messages to another agency's radios. A 2004 survey by the U.S. Conference of Mayors found that about a quarter of cities polled did not have a communications link between their police and fire departments. (7) More than eighty percent reported that they did not have the capability to communicate with the Federal Emergency Management Agency ("FEMA"), the FBI, and other federal agencies. (8) Forty-nine percent of cities said they are not interoperable with the state police, and forty-four percent reported an accident within the preceding year in which a lack of interoperable communications made response difficult. (9)

   Lack of interoperability among local public safety organizations was nothing new on the morning of September 11, 2001. Eight years earlier, police could not communicate with firefighters just one floor away during the response to the first attack on the World Trade Center. (10) Incompatible emergency communications also handicapped the responses to the Columbine High School shootings in 1999 (11) and the Oklahoma City bombing in 1995. (12) Little has changed since 9/11.

   Cross-jurisdictional interoperability also remains a problem to this day. While Shreveport, Louisiana's fire department radio system allows it to communicate with police, EMS, and fifty other agencies in its region, when the Shreveport firefighters traveled to New Orleans to lend a hand in the aftermath of Hurricane Katrina, their radios were useless. (13) Police in the area used a different system that was incompatible with Shreveport's radios. (14) Similarly, destroyed infrastructure and the lack of interoperable communications systems forced the Mississippi National Guard and other first responders along the Gulf Coast to exchange information through paper relays and face-to-face meetings, delaying emergency responses. (15)

   Not only is the interoperability problem not novel, but it also seems that each time a major emergency exposes the lack of interoperability, a new blue ribbon commission is convened to study the issue. Following the communications failures that affected the first responders during the Oklahoma City bombing, the Federal Communications Commission ("FCC") and the National Telecommunications and Information Administration ("NTIA") jointly formed the Public Safety Wireless Advisory Committee to study emergency communications. (16) That committee studied the issue for a year and issued an 800-page report, which concluded that "unless immediate measures are taken to alleviate spectrum shortfalls and promote interoperability, Public Safety agencies will not be able to adequately discharge their obligation to protect life and property in a safe, efficient, and cost effective manner." (17) Ironically, that report was issued on September 11, 1996. After 9/11, the Department of Justice's ("DOJ's") National Institute of Justice created a National Task Force on Interoperability, which has issued a series of reports. (18) And after Hurricane Katrina, the FCC convened the Independent Panel Reviewing the Impact of Hurricane Katrina on Communications Networks. (19) Information about the interoperability problem is therefore not lacking.

   Federal funding aimed at alleviating the problem has also not been lacking. The Digital Television Transition and Public Safety Act of 2005 allocated $1 billion to public safety grants to be administered by NTIA for the deployment of interoperable communications systems. (20) In addition, the Department of Homeland Security estimates that it has spent $5.6 billion on interoperable communications equipment grants between 2003 and 2005. (21) Not surprisingly, the House select committee investigating Katrina explained in its report that "[a]lthough some New Orleans and Louisiana state officials attribute the lack of true interoperability for first responders in the region to financial limitations, this explanation flies in the face of the massive amounts of federal grants to Louisiana." (22)

   Despite the resources that have been dedicated to it, the interoperability problem persists. To find a long-term solution that enables completely interoperable communications between all necessary emergency responders, we cannot be limited in our thinking by the current system of public safety spectrum allocation, funding, or acquisition. Conventional approaches to interoperability include patching two or more incompatible radio systems using a gateway (23) or simply encouraging agencies to better coordinate their radio deployments without clear incentives for them to do so. These approaches are born out of practicality and encompass eminently sensible steps that can and should be taken immediately to improve interoperability.

   This Article, however, aims to identify the root causes of the existing lack of interoperability and then address those causes. While there is a pressing need to address the short-term demands of first responders, another task that is just as important is a "wholesale assessment of long-term spectrum needs" and policy. (24) The goal is not to suggest how existing systems can be tweaked to allow a modicum of increased compatibility, but rather to rethink public safety spectrum policy so as to achieve national universal interoperability. (25)

   Part II of this Article explains that the lack of public safety interoperability is the result of what economist Mancur Olson calls a collective action problem, and it is the result of the national policy of public safety spectrum segregation and balkanization. Part III explores how market forces can be employed to solve collective action problems and also surveys several successful commercial interoperable communications networks shared by public safety users and private customers. Part IV applies the lessons from the case studies and suggests an outline for a spectrum policy that could harness market forces to alleviate the collective action problem responsible for lack of public safety interoperability.

2. WHY DO WE LACK INTEROPERABILITY?

   Lack of interoperability exists when first responders who need to communicate with each other are using either different frequencies, or the same frequencies but with different communications standards. There would be no interoperability problem if, before each public safety licensee built its own communications system, it consulted and coordinated with every other public safety agency to ensure that the system it built would be interoperable with every other licensee's system. Better yet, there would be no interoperability problem if public safety agencies agreed to share use of the same network.

   The armed forces, like first responders, have also faced severe interoperability problems. During the invasion of Grenada in 1983, Army Rangers invading the south of the island could not speak to Marines taking the north because their respective communications systems were not interoperable. (26) But this wasn't always so. The United States did not have a large standing army before World War II. As it entered that war, the U.S. procured all its military equipment...