The Plan points to a significant lack of broadband facilities serving Tribal lands as well as an astonishingly low broadband usage rate by Tribal land residents. To rectify this deficiency, the Plan proposes to prioritize Tribal needs and Tribal government input in its efforts to reform USF, requires the FCC to consider Tribal lands’ unique spectrum needs in its implementation of the Plan’s proposal to reform spectrum policy, recommends that Congress establish a new Tribal Broadband Fund to provide capital for broadband deployment and adoption, and seeks to improve coordination and consultation with Tribes on a government to government basis on broadband related issues, including through the recommended creation of an Executive level initiative, a new FCC Office of Tribal Affairs, an FCC task force devoted to consideration of Tribal concerns in all broadband proceedings, as well as a joint right-of-way task force comprised of State, Tribal and local policymakers, and expanded opportunities for Tribal member participation in FCC training programs.

Background

According to the FCC, fewer than 10 percent of Tribal land1 residents have access to terrestrial broadband, and broadband penetration hovers around 5 percent. Even the data on which these penetration statistics are based is considered lacking. The Plan identifies a significant need to create funding for Tribal lands, which, because of their rural location and small populations, do not attract interest form private capital, and proposes measures intended to increase investment in infrastructure and improve broadband adoption.

The FCC’s efforts in this regard are not unprecedented. Since 2000, the FCC has administered Tribal land bidding credits to incentivize wireless carriers to provide service to Tribal lands. In addition, the FCC long ago established a Tribal priority in AM and FM radio allotments. The Plan implies a historic lack of coordination with Tribal governments on communications policies matters and seeks to rectify this problem through the establishment of initiatives and task forces, as well as executing an FCC consultation policy, to ensure that Tribal concerns are considered in all broadband proceedings. The Plan also recommends that RUS’s role in providing loan and grant funding to rural communities through Community Connect be expanded to include more responsibility for Tribal lands.

Analysis

In addition to recommending that Congress establish a Tribal Broadband Fund and expand the RUS funding role, the Plan proposes to fund broadband deployment on Tribal lands using funds made available through its USF reforms. Funding under USF would include (1) infrastructure investments from a new Connect America Fund (CAF) that would only fund projects in areas where there is no private sector business case for providing broadband, including such areas located on Tribal lands; and (2) E-rate funding for more Tribal land libraries produced by amending the Communications Act and removing certain technical barriers. In addition, the Plan recommends that Congress amend the Communications Act to allow anchor institutions funded by E-rate or the Rural Health Care program to share network capacity with other community institutions designated by Tribal governments. More detail on the Plan’s recommended USF reforms is available in our advisories that focus on Overhauling High-Cost Universal Service and the E-Rate Upgrade.

The FCC notes that wireless is well-suited for connecting many isolated Tribal communities, recommending a new preference for Tribes seeking wireless licenses to facilitate Tribes’ use of spectrum for broadband. This preference could potentially include a new “geographic carve out license for areas covering Tribal lands.” Additional recommendations include: (1) facilitating Tribes’ access to information on available spectrum by including Tribal-land specific data in the spectrum dashboard that was launched concurrently with the Plan’s release; (2) providing more flexibility and incentives for the build-out of facilities serving Tribal lands, which could include new mandates for re-licensing spectrum when licensees fail to provide service; (3) considering the use of higher-power fixed operations in rural areas; (4) identifying frequency bands that could be allocated to broadband, including in Tribal areas; and (5) expanding the Tribal Land Bidding Credit program.

Improved broadband adoption and utilization by Tribe members would be built on coordination between Tribal governments and the FCC. The Plan recommends improving communications and consulting on broadband between Tribes and government agencies by (1) establishing a Federal-Tribal Broadband Initiative to reduce redundancies across government broadband programs and policies; (2) establishing a FCC-Tribal Broadband Task Force composed of FCC staff and Tribal leaders to ensure Tribal concerns are considered in all broadband-related proceedings; (3) creating an Office of Tribal Affairs within the FCC to consult with Tribal leaders, develop the FCC’s Tribal agenda, and manage the Task Force; and (4) and encouraging Tribal participation in a joint task force also composed of FCC, State and local representatives to develop a national rights-of-way policy.

The Plan also recommends that Congress provide additional flexibility to RUS’ to enable it to expand its role in providing financing for broadband deployment on Tribal Lands, including through Recovery Act funding, RUS’s Farm Bill Broadband Program and Distance Learning Program, and that Congress expand the Community Connect program (including the size and scope of its eligibility criteria) to better serve Tribal lands.

In addition, the FCC proposes to enhance coordination with Tribal governments by inviting Tribes to play a more prominent role in the USF reform process. Recommendations include creating a permanent Tribal seat on the Federal-State Joint Board on Universal Service and the USAC Board, and requiring the FCC to consult Tribes before designating broadband providers that may receive USF support for serving Tribes.

The Plan also proposes to facilitate adoption by expanding Tribal members’ broadband skills, accomplishing that goal by expanding the Indian Telecommunications Initiative and allowing Tribe members to participate without charge in FCC University training programs. Expanding the Lifeline Assistance and Link-Up America programs would drive adoption by subsidizing low-income Tribal households’ broadband subscription costs. Improved data on both adoption and deployment would be collected by making mapping grants available to Tribes.

Several of the Plan’s non-Tribe specific recommendations could also impact Tribal lands and are not covered in this section of our summary. The FCC will be releasing a series of notices to launch each of its future proceedings. Davis Wright Tremaine will be participating in those proceedings on behalf of our clients.