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Native Public Media and Allies Want FCC to Extend 2.5 Ghz Window for Tribes

One of the unusual plot twists of this season on Spectrum Wars has been my agreeing more and more with FCC Chairman Ajit Pai. For those familiar with Babylon 5, this is rather like how G’Kar and Londo started working together by the end of Season 4 despite attacking each other’s home planets at various points in Seasons 1, 2 & 3. But as I like to say: “Always prepare for the best possible result.” Mind you, this doesn’t change all the things on which I vociferously oppose the current FCC. But I’m hoping to extend the spectrum streak into August.

Which brings me to one of the most important developments for connectivity for Native American Tribes, Alaskan Native villages and Native Hawaiian communities: the 2.5 GHz Rural Tribal Priority Window (TPW). This gives federally recognized Tribes on rural Tribal lands the opportunity to apply for free spectrum licenses in one of bands best suited for 5G. Tribes that receive these licenses will have the capability to build out their own 5G networks, bringing real, reliable and affordable broadband to communities that have the worst broadband access in the United States. Unfortunately, the application window closes on August 3. Because of the horrific impact of COVID-19 on Native American communities (rural Native American Communities have suffered worse economic and social impacts of COVID-19 than any other community in the United States, aggravated by the severe lack of broadband access), hundreds of eligible Tribes will not be able to meet the August 3 deadline to apply (less than 20% of the approximately 515 eligible federally recognized tribes on rural Tribal lands are expected to be able to apply under the current deadline, based on an estimate by

Tribal organizations such as National Congress of American Indians, The Southern California Chairmen’s Tribal Association, Native Public Media, and AMERIND Risk Management (a Tribal owned corporation chartered under federal law) are working with my employer, Public Knowledge, to request the FCC to extend the window until February 3, 2021. As I explain below, this will benefit hundreds of Tribes and their communities, while harming no one. But best of all, you can help! Here’s how:

Tell your member of Congress to tell the FCC to extend the 2.5 GHz Tribal Priority Window. You can do that by going to the Public Knowledge #ConnectTribes action tool here.

Tell the FCC to extend the 2.5 GHz TPW. The Docket Number for this proceeding is 18-120. Simply head over to the FCC Express Comment page and tell the FCC in your own words that Tribes deserve a real chance to apply for wireless broadband licenses on their own sovereign Tribal lands so they can provide Tribal households and businesses with the broadband they need and deserve.

Participate in the #ConnectTribes Day of Action on Thursday, JULY 23 (TOMORROW!). One of the biggest problems is that no one outside of a very small set of telecom wonks and Native activists knows about this situation and why the FCC needs to extend the TPW until February 3. Tweet or otherwise use social media with the hashtag #ConnectTribes to raise the profile of this issue. We are planning a “Day of Action” this Thursday, July 23 to get this trending — but please keep using the hashtag to support Tribal connectivity until August 3.

More below . . .

If you want just the highlights and how to help, you can read the much shorter blog post written by PK intern Shannon Brunston here. If you want the usual Wetmachine 4K word treatment, read on.

Why Does Broadband Access on Rural Tribal Lands Suck So Very, Very Badly?

The United States has a general problem with getting broadband to rural areas. But all these problems are much worse for Native American reservations, Native Alaskan villages and Native Hawaiian homelands. For starters, the federal government has a long, well-documented history of shafting Native Americans pretty thoroughly. Unsurprisingly, this extends to telecommunications generally and broadband specifically. Starting in 2016, the Government Accountability Office has issued a bunch of reports documenting just how badly the federal government in general, and the FCC in particular, has failed to live up to its obligations under the federal “Trust Relationship” with sovereign Native American Tribes to either provide broadband for Tribes or empower the Tribes to provide broadband for themselves. You can see some here, here, here and here (please note, this is an incomplete list of the documentation of FCC suckage on this subject). in 2018, Congress mandated that the FCC do a study on the subject, wherein the FCC concluded, “yes — broadband on rural Tribal Lands totally sucks rocks and we should probably do something about that.”

So What is the 2.5 GHz Tribal Priority Window, and How Would It Help?

Happily, relatively soon after the 2019 FCC report on How We Suck on Tribal Broadband, the Pai FCC was presented with an opportunity to actually do something about Tribal connectivity rather than just agree that “yup, we suck.” In 2019, the FCC decided to eliminate something called the Educational Broadband Radio Service (EBRS) and just make it part of the regular Broadband Radio Service (BRS). Basically, for a very long time, the FCC had an “educational set aside” in the 2.5 GHz band for educational institutions (K-12, colleges, etc.) to get licenses to provide distance learning services. This goes back to the 1960s, when we were talking about closed circuit TV systems, but gradually got modernized to be providing broadband networks. I will skip over the lengthy, tortured history of the 2.5 GHz band but suffice it to say that the FCC hadn’t had an opportunity for educational licensees to apply since 1997, and has been spending the last two-decades gradually phasing out the EBRS so that the spectrum could be used for commercial mobile broadband.

With mid-band spectrum such as 2.5 GHz now prime spectrum for providing 5G service, the Pai FCC decided to complete the process and simply eliminate the requirement that licensees need to be educational institutions and permitting the licensees to do whatever they wanted with the spectrum. Because the FCC hadn’t opened a window for the EBRS band since 1997, there were a lot of places (particularly in rural areas) where a licenses were available. The EBRS band covers about 117.5 MHz of spectrum (a 49.5 MHz channel, a 50.5 MHz channel, and a 17.5 MHz channel), so this could be the backbone of a very useful 5G network for fixed or mobile broadband services. Unsurprisingly, the FCC proposed to auction these licenses for commercial 5G.

But then something unexpected happened . . . .

In 2018, as part of its “How the U.S. generally and the FCC in particular keeps shafting Tribes” series, the GAO published a report on how the FCC should find ways to give Tribes access to spectrum on Tribal lands. Not only would this enable them to provide actual, reliable fixed and mobile telecom and broadband services, but it would also give tribes a measure of sovereignty over their natural spectrum resources. Sure, Tribes can technically participate in FCC auctions like anyone else, and are actually eligible for a Tribal bidding credit. And indeed, some Tribal providers have participated successfully in FCC auctions. But by and large, participating in FCC spectrum auctions is waaaaaay too expensive for Tribes. Keep in mind Tribes have relatively few sources of revenue (tourism, local businesses and gaming operations.casinos for about 50% of the Tribes, and some (generally inadequate) federal subsidies). Tribal governments need to provide all the services of other local governments — such as providing water & sewage, trash pick up, ensuring basic medical and financial assistance for those below the poverty line — but without many of the tools state and local governments have (such as an ability to impose sales taxes or other sorts of taxes). Even though rural Tribal lands are not places providers generally want to serve (for reasons I’ve explained before), spectrum licenses often include Tribal lands as part of the larger geographic license area. As a result, even if Tribes can afford the expense of getting into the auction in the first place and putting in a multi-million dollar upfront payment are frequently squaring off against commercial carriers like AT&T.

So Chairman Pai decided that as part of restructuring the 2.5 GHz band, the FCC would create a “Rural Tribal Priority Window” where Tribes could apply for available EBRS licenses on their Tribal lands.

Wait, What’s a “Window?”

In FCC-speak. An “application window” is a period of time to file applications, and all applications filed during the window are considered filed at the same time. This is important because if two qualified applicants apply for the same (or overlapping) licenses, then they need to resolve the conflict. For non-auction licenses like this, resolving the conflict means first giving the conflicting applicants an opportunity to negotiate a settlement. If that doesn’t work, the FCC resolves the conflict using a set of criteria to award points between them.

OK, Got It. Go On.

As I was saying, the 2.5 GHz Order established that FCC would open the TPW before holding the commercial auction, and any licenses claimed by Tribes would not be available for auction. Mind you, as the FCC conformed the license area to exactly overlay rural Tribal lands that carriers don’t want to serve, this is not exactly a big loss for the carriers. If anything, it relieves carriers of the obligation to deploy to communities with low rates of return they would rather avoid.

The FCC imposed 4 qualifications for application. (1) must be a federally recognized Tribe; (2) licenses will only cover recognized Tribal lands; (3) Said Tribal lands must meet the FCC definition of “rural,” excluding Tribes in urban/suburban/exurban areas or portions of Tribal lands too close to population centers; and, (4) Tribes applying must prove they have a presence on the Tribal land for which they apply. The FCC provided shape files of the maps of Tribal lands that qualified, opened the TPW on February 3 to run until August 3, 2020.

There are about 515 Tribes eligible for licenses based on these criteria. Many of them lack broadband access outside their Tribal offices. Some residents lack access to reliable mobile or landline voice service. Through these licenses (and other available shared/unlicensed spectrum such as the new CBRS in 3.5 GHz and TV white spaces), Tribes can deploy 5G networks that could serve their Tribal lands and open the door to the massive opportunities reliable, affordable access to broadband provides.

So What’s the Problem? Seems Like 180 Days Ought to Be Enough.

You can read about the issues that made it necessary for the FCC to give 6-month window even before COVID-19 hit in much greater detail in the formal Motion For Stay of the filing deadline we filed with NCAI, et al. From the beginning, getting the word out to eligible Tribes, Alaskan Native Villages, and Hawaiian homelands presented a real challenge. As you can imagine, most Tribes don’t follow the FCC, so aggressive outreach was necessary just to get this on their radar. Then the Tribes need to consider whether they have the resources to take advantage of the licenses and apply. This requires going through the appropriate Tribal government processes and may involve spending money to study the situation (which, as previously noted, Tribes generally do not have). On top of that, many of the maps prepared by the FCC needed to be modified for a variety of reasons, e.g., the FCC map did not match the official federally recognized borders from the Bureau of Indian Affairs (BIA); multiple Tribes occupy the same Tribal land, requiring the Tribes to coordinate a single application or partition the maps so that they could each apply separately for licenses; portions of Tribal land might need to be excluded as too close to an urban area, or under the license of an existing EBS licensee. To take a single example, the Southern California Tribal Chairmen’s Association is an association of 20 federally recognized Tribes in Southern California. Portions of their Tribal lands overlap with existing EBS licensees in San Diego and Los Angeles (in part due to geographic spacing requirements between license holders to avoid interference, so even if coverage does not extend into Tribal areas, the license my be unavailable).

Modifying the maps requires access to specialized tools and software not commonly owned by Tribes, as well as trained mapping specialists. In addition, modifying the map requires an additional application for waiver of the requirement to use the official FCC map. That’s more work and documentation. Tribes also must submit with their applications sufficient evidence to show that they meet the other criteria: That they are federally recognized (not so hard), that the area applied for is Tribal and rural (usually requires access to archives and other evidence that may be difficult to access via the Internet — assuming a reliable internet connection is available — or must be accessed in person and physical copies made), and that the Tribe maintains a “presence” on the Tribal land. Figuring out what constitutes adequate documentation for this may involve lots of emails and phone calls with Commission staff. Did I mention that Tribes have lousy broadband access, lousy mobile access and even lousy traditional voice access? Not to mention that, despite the cooperation and efforts by FCC staff (as well as some dedicated folks at the National Telecommunications Information Administration (NTIA) and the Bureau of Indian Affairs (BIA), there are only so many business hours in a day. And, of course, Tribes need to do all of this with their existing government employees, who are already stretched trying to provide for basic tribal needs.

And, just to make the stakes even higher, the FCC has stated that it will not allow major modifications to correct any mistakes or supplement with new documentation after the window closes August 3. So one mistake and the application gets dismissed. But no pressure. As Billy Joel says, get it right the first time, that’s the main thing. But getting it right takes time.

So even without the pandemic, the 6 month window was barely long enough to give the hundreds of potentially eligible Tribes a real chance at participating in this once-in-a-lifetime opportunity to get spectrum access that could be a total game changer for them. The COVID-19 hit.

COVID-19 Makes Applying for Licenses Insanely Harder.

Almost as soon as the TPW opened in February, COVID-19 hit. Tribes went under lockdown, shutting down the Tribal offices where folks had the documents, computers and broadband access to fill out the applications and file them. (Everything related to filling out and filing the application uses the FCC’s online Universal Licensing System (ULS).) Many Tribal employees don’t have broadband at home. Some lack reliable voice service. Keep that in mind, because it impacts everything.

COVID-19 put unimaginable strain on Tribal governments in their role as the local government responsible for taking care of a community suffering the worst pandemic in a century. Forget about applying for wireless licenses. For the first several months of COVID-19, Tribal governments had to deal with the loss of their revenue streams as casinos and tourism shut down and native businesses on the reservations closed due to the lockdown. Schools were closed, requiring Tribes to deal with adapting to distance learning when the vast majority of their teachers and students (and some of their schools) lack access to broadband. Tribes had to manage a public health crisis in areas that lacked adequate facilities to address their standard health needs. Tribal governments lack many of the tools that state and local governments have to address emergencies, but have the same (or greater) responsibilities.

Meanwhile, the impact of the pandemic was not limited to the Tribes. FCC operations were disrupted. The ambitious plan for widespread in-person outreach events were cancelled, with a limited number of virtual outreach sessions taking their place. (Did I mention the problem of broadband on Tribal lands?) Operations by organizations supporting tribal applications were likewise disrupted, and in-person outreach and technical assistance suspended. Archives where critical documents were stored were closed. Meeting between stakeholders to coordinate and negotiate points of potential conflict were cancelled or rescheduled, and unable to take place in person. And against this background Tribal governments and members were dealing with a higher infection and mortality rate than any other community in the United States.

So COVID-19, which no one could have foreseen or prepared for, made the already difficult process of completing the applications in time (without significant error) a zillion times harder in every conceivable way. As a result, only about 70 Tribes have managed to apply so far (and frankly, it is a testament to how valuable the Tribes consider this opportunity that even this many overcame the hurdles to apply). Even assuming we will see a rush of applications at the last minute, hundreds of eligible Tribes — through no fault of their own — will b unable to participate in this unique opportunity to reclaim sovereignty over their digital future.

So What Can The FCC Do About It?

The FCC can extend the deadline. A number of stakeholders, including the National Congress of American Indians, Southern California Tribal Chairmen’s Association, Amerind Risk and my employer Public Knowledge have filed a Motion with the FCC asking them to extend the deadline to February 1, 2021. This would give Tribes that are only just hearing about the TPW, or who assumed they could not make the deadline and therefore have given up, the opportunity they would have had absent the pandemic.

The FCC has granted extensions to take into account the impact of COVID-19, including a 6-month extension to cable and satellite companies (“Multichannel Video Programming Distributors” or “MVPDs” in telecom speak) before they have to implement the consumer protection provisions of the Television Viewer Protection Act of 2019. The TVPA required MVPDs to plainly state the full price of a subscription including all taxes and fees, so no more telling you the price is $99 and then heaping on another $30-$50 bucks with things like “broadcast TV fee,” or “Administrative fee.” The TVPA also banned MVPDs from charging rental fees to customers even when the customer uses their own equipment and doesn’t rent the equipment from the provider.

If you read the Media Bureau Order, you will see that much of the language used to justify a 6-month extension applies with greater force to the TPW. For example:

  1. The President declared a national emergency due to the pandemic on March 13.

  2. Requiring MVPDs to implement the TVPA consumer protection provisions would “divert resources away from other consumer demands brought on by the pandemic.”

  3. MVPDs are “entities principally responsible for operating and maintaining the infrastructure that Americans increasingly depend on for continued business and interpersonal communications during the national emergency.”

  4. “given the indefinite length of time of the national emergency, that the public interest would be served best by affording subject entities until December 20, 2020—the maximum amount of time permitted by the statute.”

  5. The extension also meets the “good cause” exemption to notice and comment under the Administrative Procedure Act “in light of the disruptive effect of the national emergency on the daily activities of entities subject to section 642.”

I think we can all agree that whatever Comcast, AT&T, Charter and Verizon are going through to meet the disruption and increased customer demand caused by COVID-19, Rural Tribal Governments are dealing with situations that are much worse with far fewer resources on which to draw. And while yes, Congress explicitly created a provision allowing the FCC to extend the implementation of TVPA for up to 6 months, that was actually a limitation on the FCC’s authority to extend deadlines, because Congress didn’t want the FCC to delay implementation of the consumer protection provisions of the TVPA longer than necessary. So it’s not like the FCC needs special authorization from Congress to extend its own deadline for the Tribal Priority Window. They can just do it.

Will Granting the Extension Delay the 2.5 GHz Commercial Auction?

The one reason you might think Pai would refuse to extend the deadline would be because it would delay the 2.5 GHz commercial Auction. this wouldn’t be a particularly great reason in my opinion, but it would be consistent with Pai’s previous statements about getting 5G spectrum out as quickly as possible. But it is impossible to schedule the 2.5 GHz auction before April or May of next year at the earliest?

Why, because the FCC has two major auctions of mid-band 5G spectrum coming up in quick succession. Auction 105, the auction of CBRS licenses in the 3.5 GHz band, starts tomorrow. Pretty much the entire wireless industry and then some is participating, with an expected haul of $10 billion. Auction 107, the auction of the C-Band licenses in the 3.7 GHz band, is scheduled for December 8. FCC auctions like this usually run for 2-3 months, so the C-Band Auction is unlikely to be over until sometime in February. By law (and as a matter of general common sense) the FCC needs to wait between auctions a reasonable amount of time so that bidders can assess the impact of the last auction, figure out how hard they plan to play in the next auction, and get new financing lined up. It also takes the FCC auction team time to get the software tweaked and tested in time for the next auction. So when you put all that together, it is simply not realistic to expect the FCC to schedule the 2.5 GHz commercial auction earlier than late April or early May 2021. Heck, it’s likely to be later than that.

As for the Tribes that have already applied, the FCC has a couple of options if it wants to process those quickly. The easiest is to simply let tribes that are ready to deploy deploy under a special temporary authority (STA). The FCC has already done this for some Tribes. Alternatively (or in addition), the FCC can process applications filed after August 3 on a “rolling basis.” This would allow the FCC to process the applications for those tribes who managed to beat the odds and get their applications in on time.

But importantly, an extension of the window may benefit Tribes who have already applied. Remember how I said that if the application isn’t perfect when the window closes, the application gets tossed in the garbage with no chance to fix what was wrong? As you can see from the list of submitted applications, a bunch of Tribes found problems with their initial applications and needed to file amendments. Happily, since the window hasn’t closed yet, they can do that. But with the massive rush to get in under the deadline, it seems likely that a number of the applications are likely to have problems. Extending the TPW will give tribes that rushed to meet the August 3 deadline the opportunity to check their work and fix any problems before the FCC processes the applications and tosses out any that have significant issues.

So Why Hasn’t Pai Just Granted the Extension, and How Can I Help #ConnectTribes?

As for why Pai hasn’t just extended the deadline, I have no idea. When asked at a Congressional oversight hearing recently, Pai said he is “monitoring the situation” and “actively considering it.” That has pretty much been his answer since then.

One of my basic rules of advocacy is “always make it has easy as possible for people to do what you want them to do.” (Also, “public advocacy is not about getting people to do the right thing for the right reason. It’s about getting people to do the right thing for their reasons.”) As I mentioned above, we have filed a formal Motion for Stay of the deadline to supplement the various informal motions in the record, so the procedural “i”s are dotted and “t”s are crossed. But we are also trying to get members of Congress (particularly Republicans) to ask Pai to extend the deadline, and we are trying to raise the profile on this. Pai has shown enormous pride of ownership in being the first FCC Chairman to do something meaningful to give Tribes access to spectrum on their Tribal lands. Elevating this in the eyes of the public may help move him to the right decision (especially since the Media Bureau did the same thing for the cable industry back in April).

So those of us working on extending the Window, such as my employer PK, are asking people to do the following:

Tell your member of Congress to tell the FCC to extend the 2.5 GHz Tribal Priority Window. You do that by going to the Public Knowledge #ConnectTribes action tool here.

Tell the FCC to extend the 2.5 GHz TPW. The Docket Number for this proceeding is 18-120. Simply head over to the FCC Express Comment page and tell the FCC in your own words that Tribes deserve a real chance to apply for wireless broadband licenses on their own sovereign Tribal lands so they can provide Tribal households and businesses with the broadband they need and deserve.

Participate in the #ConnectTribes Day of Action on Thursday, JULY 23 (TOMORROW!). One of the biggest problems is that no one outside of a very small set of telecom wonks and Native activists knows about this situation and why the FCC needs to extend the TPW until February 3. Tweet or otherwise use social media with the hashtag #ConnectTribes to raise the profile of this issue. We are planning a “Day of Action” this Thursday, July 23 to get this trending — but please keep using the hashtag to support Tribal connectivity until August 3.

To be blunt about it, if everyone who pushed to get the Washington football franchise to change their name, or who has pushed to change “Columbus Day” to “Indigenous People Day,” or literally pushed over a statue of Columbus, wrote to Congress and took part in the #ConnectTribes campaign on social media, it would make a huge difference. To be sure, symbols are important. But actually giving Tribes broadband access that will improve their day-to-day lives and open up new economic and educational opportunities is also important. This is a unique chance for Tribes to get wireless licenses and exercise sovereignty over their digital future. It would be tragic and cruel if we stood by while COVID-19 prevented hundreds of eligible Tribes from taking advantage of the TPW.

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