There is no question the issues facing rural communities nationwide are magnified on most Indian reservations. Infrastructure and access to basic utilities lead the list of long-standing issues. Indian tribes, perhaps more than any other community, have been historically disadvantaged by the lack of investment available to address energy, water and transportation needs—the foundation for a community’s quality of life as well as its prospects for economic success. Now, broadband access has become another foundational issue—critical to the well-being of native people because of its importance in the areas of education, healthcare, public safety and general commerce. Once again, though, Indian Country has fallen substantially behind the rest of the nation in gaining access to a critical service that is providing substantial benefits to the rest of the nation.
In 2016, over 35% of the population in Indian Country lacked access to the minimum level of advanced telecommunication services (defined as 25 megabits per second (Mbps) upload and 3 Mbps download) as compared to just 2% of their urban neighbors. On the positive side, this represents an improvement over 2014 when 41% of those in Indian Country lacked such access. Over the past several years, increasing attention has been paid to the digital divide that exists between urban and rural areas. And even as there is an ongoing effort to understand the magnitude of that divide, plans and actions are being undertaken to expand access and improve the situation. Recent congressional action, coupled with initiatives underway at the Federal Communications Commission (FCC), are providing opportunities to expand broadband access and bring its benefits to regions greatly in need. This paper highlights several recent initiatives of which tribal clients should be aware. These initiatives may provide significant opportunities to assist tribal leaders in addressing the need for broadband access and further economic, educational and quality-of-life goals for tribal communities.
Policy and Program Initiatives in 2018 Omnibus Appropriations Bill
The 2018 Omnibus Appropriations Bill enacted in late March contained several provisions to assess, coordinate and support opportunities to expand broadband access, particularly in underserved areas such as Indian Country. Significantly, Congress included the Tribal Broadband Deployment Act within the massive spending bill, requiring the FCC to (1) evaluate the extent of broadband coverage in Indian Country and report back to Congress by April 2019, and (2) initiate and complete a rulemaking proceeding by the end of 2020 that addresses the underserved areas identified in the 2019 report. The Bureau of Indian Affairs is also directed to report back to Congress this month (July) on a scalable plan to increase bandwidth in schools and overall efforts to coordinate with other agencies on accomplishing a technology buildout that expands broadband availability on Indian reservations and villages. Perhaps most significant on a short-term basis, Congress expanded existing funding efforts by including $600 million in funding for the Department of Agriculture’s Rural Utility Service for a pilot to establish a new broadband loan and grant program. The primary purpose of the pilot is to assist in closing the digital divide by focusing on rural areas without sufficient access to broadband. Clearly, expanding broadband access in Indian Country and similar regions across the United States will be a sustained and focused effort over the next couple of years.
FCC Rulemaking on “Transforming the 2.5 GHz Band”
In addition to the federal programs providing direct financial support and incentives to increase broadband access in underserved areas, the FCC is looking at other opportunities to accomplish that goal. One such effort is a Notice of Proposed Rulemaking (NPRM) proceeding formally initiated on June 7, 2018, to make use of a significant portion of valuable wireless spectrum that is currently unused because it has been reserved for educational purposes as part of the Educational Broadband Service (EBS). The 2.5 GHz band (2496–2690 MHz), which was set aside as part of the EBS, “is prime spectrum for next generation mobile operations, including 5G uses.” To put this into context, the 700 MHz to 3 GHz spectrum is in high demand due to its utility in providing mobile data and voice services. Most of this spectrum has already been allocated, and given the short supply and increasing demand, unallocated band of this spectrum is in high demand in many areas.
Recognizing the increasing need, demand and inefficiencies involved in unused spectrum, the FCC has initiated a rulemaking to permit more flexible use of the 2.5 GHz band so that full use of this EBS spectrum can help provide advanced mobile broadband services, particularly in rural areas where much of the spectrum lies fallow. Specifically, the FCC’s proposal on which it is seeking comment is to (1) improve the geographic definition of current licenses and provide additional flexibility in how those licenses are used; (2) create an opportunity for local priority entities, including existing licensees, Indian tribes and other educational entities to apply for new licenses (outside of a competitive auction process) in the unassigned EBS spectrum; and (3) open up through an auction, any remaining unused EBS spectrum for new licenses and commercial uses.
This is a complicated rulemaking that is currently on a very fast track. With respect to the issue of whether to provide an opportunity for tribes to obtain licenses as priority entities, there are at least seven specific questions posed within the NPRM on whether and how to include tribes. Initial comments are due on July 9, 2018, with reply comments due on August 6, 2018. Given the competition for unused spectrum, there is likely to be significant interest in the rulemaking. For that reason, it is important for tribes seeking to expand broadband access throughout tribal communities to weigh in and encourage the FCC to maintain its approach that would assist tribes in developing opportunities to bridge the digital divide. Acquiring a license for an unused and valuable portion of the wireless spectrum would lay the groundwork for addressing broadband needs within Indian Country, particularly for educational purposes. In addition, depending on the flexibility accorded to the use of new licenses, any such licenses may provide a valuable economic asset for the long-term benefit of tribal communities.
This article was originally published by WilmerHale here.
Brownstein Hyatt Farber Schreck, LLP
Michael H. Pryor - Shareholder
Michael represents cable, telecommunications and wireless companies in federal and state regulatory proceedings, litigation and transactions. He has particular expertise in advancing clients' positions in complex rulemakings and regulatory adjudications. He also works extensively on matters involving the Telephone Consumer Protection Act.
Melissa L. Thevenot - Associate
Melissa Thevenot brings a history with tribal organizations and transactional matters to her gaming practice. She has experience with advising Indian gaming enterprises on compliance with the Indian Gaming Regulatory Act, fee-to-trust applications and acquisitions for tribal land recovery, federal recognition and Indian lands gaming eligibility, developer agreements and researching and preparing trial documents.