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Bridging the Tribal Digital Divide

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The vast Tribal Digital Divide was the focus of a recent Senate Indian Affairs hearing on a newly released Government Accountability Office (GAO) report, GAO 19-75, regarding the lack of broadband access in Indian Country. The GAO study and report was requested by Senators on the Committee with large Native constituencies in their districts. The hearing focused on the lack of access to licensed spectrum broadband across tribal lands. One of the findings was that the Federal Communication Commission (FCC) relies on insufficient data about Indian Country, which the FCC says it is trying to address. Witnesses from across Indian Country presented testimony and the entire hearing may be watched here.

 

Why is Spectrum Broadband Access Important?

Broadband comes in many forms these days.  The various types of Broadband connections include:

  • Digital Subscriber Line (DSL)

  • Cable Modem.

  • Fiber.

  • Wireless.

  • Satellite.

  • Broadband over Powerlines (BPL)

Access to fast, reliable affordable forms of broadband service is something that a lot of America takes for granted. It’s key these days to being able to have on-line businesses, economic development, as well as access to telemedicine and online educational services.These are just some of the typical modern day uses of the Internet that many people use. In Indian Country and rural American, the same access to broadband is not always the case and usually it is the exception.  A witness at the hearing reported on Native students writing reports on their cell phones as opposed to computers because the cell phone had broad band access whereas  the computer did not.

FCC’s Upcoming Auction For 2.5 GHz Wireless Use

In an attempt to meet address these shortcomings and meet the needs of Native America and to make more bandwidth available for 5G networks, the FCC recently revised the use of a 2.5gigahertz (GHz) band that has been used solely for educational services for decades. By a 3-2 vote, the Commission approved a proposal to transform the rules previously governing the Educational Broadband Service (EBS), which extends from 2502 to 2690 MHz and is comprised of 20 channels designated for EBS, and a number of small guard band channels. They also removed the requirements that this band be used only for education. This is bad news for the education stakeholders but good news for Tribes as the FCC has also prioritized the acquisition of the 2.5 GHz bandwidth by them

Tribal Priority Window Soon To Open

The FCC will open a Tribal Priority Window (TPW) to enable Tribal nations an opportunity to obtain the licenses – at not cost -- to provide service on their Tribal lands if the license to the areas haven't already been acquired and subject to the build-out requirements. This Tribal Priority Window will be followed by a system of competitive bidding to assign geographic area licenses for the remaining unused portions (covering half of the United States) for the band to be used for commercial purposes.

What Tribes Need to Know

The FCC said in its Report and Order (R&O) issued on July 10, 2019, that this revision is needed “to address the educational and communications needs of their communities and of residents on rural Tribal lands, including the deployment of advanced wireless services to un-served or underserved areas.” The criteria is listed as 1) Tribal applicants must be one of the 573 federally recognized Tribes; 2) the area to be licensed must be based on a Tribe’s reservation or on qualified off-reservation lands; 3) the area must be rural and 4) the Tribe must have a local presence.

The R&O further stated “We will include in the Tribal priority window Tribal lands on-reservation in all situations and off-reservation lands in certain situations…It is important to ensure that entities acquiring spectrum in this window will use it to meet the needs of Tribal members. “ Tribal lands must also be considered rural to ensure that under-served areas are being served. Tribal lands adjacent to urban areas may not be eligible. According to the R & O, “Tribal lands will be considered rural if they are not part of an urbanized area or urban cluster area with a population equal to or greater than 50,000.”

Tribally Controlled Community Colleges Included

The American Indian Higher Education Consortium (AIHEC) advocated that all 38 Tribally Controlled Community Colleges be eligible to participate in the revised Tribal priority window. All applicants for the Tribal priority window must have a local presence in any area for which they apply but are still not subject to the educational requirements.

Limitations on Transferring Licenses

There will be no educational use restrictions on Tribal spectrum licenses that are leased to third parties. However, there will be limits and restrictions on Tribal licenses' ability to assign or transfer their licenses until after they have met the build out requirements applicable to their license. So a Tribe may lease its license but cannot sell them. Tribal licensees are authorized to lease, partition, or disaggregate their spectrum, including in areas in or near rural Tribal lands. Also, according to the FCC, "they are not requiring that incumbent licensees do so, but encourage those who possess holdings covering, or adjacent to, rural Tribal lands to work cooperatively with new Tribal licensees to facilitate deployment of needed service to these areas."

After the Window Closes

After the Tribal priority window closes, any remaining unassigned EBS spectrum will be made available for commercial use via competitive bidding immediately following the completion of the Tribal priority filing window. For licenses acquired via the Tribal priority window described above, a different timeline for build-out has been adopted. These licenses must demonstrate compliance with interim build-out levels of 50 percent population coverage after two years, and final build-out levels of 80 percent population coverage after five years. This is a lot more aggressive than the normal license that has a four-year interim build-out benchmark and an eight-year final benchmark. If an applicant is unable to meet the four-year benchmark, the final benchmark is accelerated by two years.

How Will Success Be Gauged?

How will the FCC gauge success? They say, “Going forward, EBS licensees that are required to make a build-out showing under these new standards may fulfill their final performance requirements by showing any of the following: (1) 80% population coverage for mobile or point-to-multipoint service (50% interim); (2) 40 links per million persons (one link per 25,000) for fixed point-to-point service (20 links per million interim (one link per 50,000)); or (3) 80% population coverage for broadcast service (50% interim). No other types of showing or levels of coverage will be accepted. These benchmarks will apply to both licenses won at auction and licenses granted through the Tribal priority wind

Updating the 2.5 GHz System

In a blog post issued around the R&O, FCC Chairman Ajit Pai said the order is updating an outdated regulatory regime that was “developed in the days when educational TV was the only use envisioned for this spectrum.” He indicated that the new framework, which eliminates existing eligibility and use requirements and lease restrictions, would give incumbent users more flexibility in how to use the spectrum. Educators that hold licenses could for example opt to use the spectrum for enhanced services or decide to transfer licenses to another entity and invest funding in their community.

Timeline?

Exact timing for tribes’ priority filing window has not been determined, but senior FCC officials indicated it could take place in parallel with the next millimeter wave spectrum auction scheduled to start Dec. 10, 2019. We'll try to keep this issue updated for you.

If you are interested in having broadband for your Tribal community as an economic development or community development tool, contact the attorneys at Whitcomb, Selinsky Law, PC at 303.534-1958 or complete an online contact form.

 

 

 

About the AuthorKimberly Craven

Kimberly Craven is a passionate, highly-motivated Indian law and policy expert who has a wealth of experience when it comes to assisting Tribal peoples to protect their rights, save their homelands and dramatically improve their standards of living. In particular, she has in-depth expertise in issues that have proven to have a significant impact on that critical government-to-government relationship. Her sage counsel has been sought by the Eastern Shoshone Tribe in Wyoming, the Ute Mountain Ute Tribe in Colorado, the Oglala Sioux Tribal Court in South Dakota as well as the Hopi Tribe in Arizona. Kimberly served as the Executive Director for the Governor’s Office of Indian Affairs where she was responsible for managing the intergovernmental relationship between the State of Washington and the 29 federally recognized Tribes within the State’s boundaries. In the capacity of fighting for Tribal rights, she has also served as a General Attorney, Chief Judge, and Associate Magistrate. Plus, she has worked tirelessly for a number of non-profit organizations dedicated to improving social and economic conditions for Native peoples, including one that successfully defended Tribal treaty fishing rights for the Columbia River in Oregon. In addition, she has handled a wide variety of Indian Child Welfare cases. Kimberly earned her Juris Doctor degree from the University of Colorado School of Law and then went on to complete her L.L.M. in Indigenous Peoples Law & Policy from the University of Arizona. When Kimberly isn’t exercising her right to champion causes for Tribal peoples, she enjoys exercising, cooking and curling up with a good book.

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