TR Daily Broadband Barriers on Tribal Lands Highlighted at Hearing
Wednesday, July 8, 2020

Broadband Barriers on Tribal Lands Highlighted at Hearing

Along with concerns about energy generation projects, clean water, health care capacity, and COVID-19 response in tribal areas, a House Energy and Commerce Committee hearing on “the urgent needs of tribal communities” today highlighted the relative lack of broadband deployment and adoption on tribal lands.

Witness Jonathan Nez, president of the Navajo Nation, repeatedly emphasized that Congress could help on issues as diverse as water, electricity, broadband, and road construction at little to no cost just by clearing away federal regulations that create barriers to construction projects on tribal lands. “Red tape is as much to blame as lack of funding” for infrastructure issues on native lands, he said.

“The Nation currently has approximately 1,000 communications towers providing broadcast and broadband sites for broadband and broadcast carriers. While 1,000 sites may seem significant, by comparison the Federal Communication Chairman’s own State of New Jersey, which contains approximately 8,700 square miles and in almost 1/3 the size of the Navajo Nation lands, boasts in excess of 1,300 communications towers or 130% the number of towers on Navajo Nation lands, and that is in addition to any small cell and rooftop installations which cover much of the densely populated areas of New Jersey,” he told the committee in his written testimony.

Christine Sage, chairman of the Southern Ute Indian Tribe, said in her written testimony that the COVID-19 pandemic “has underscored the weaknesses in communication and high speed internet technology in Indian country. With tribal governments and tribal schools closed, our employees, teachers and health care workers were forced to quickly become accustomed to working remotely. But many Tribes, like Southern Ute, are in remote areas where the broadband infrastructure is weak or non-existent. Our students are unable to participate in distance learning and our elders are unable to connect with a health care provider virtually. For tribal economies to thrive we need Congress to invest in tribal broadband infrastructure.”

Fawn Sharp, president of the Quinault Indian Nation and president of National Congress of American Indians, testifying on behalf of the NCIA, said in her written testimony that an FCC Tribal Broadband Fund is needed to address the digital divide between tribal and non-tribal lands. “Creation of the Fund would promote education, economic opportunity, health, public safety, and governance in tribal communities that currently face a severe broadband deficit and are at a distinct and worsening disadvantage during the COVID-19 pandemic and recovery process,” she said.

Ms. Sharp also called for an extension of the tribal priority filing window (TPW) for the 2.5 gigahertz band. She noted that tribal communities have been “disproportionately impacted by this pandemic. As a result, tribal nations are currently providing essential services to their communities and dedicating resources to the unique circumstances of COVID-19 response that would otherwise be used on opportunities like the 2.5 GHz tribal priority filing window. Tribal nations and NCAI have requested an extension of the TPW until January 2021 due to the pandemic. To date, the FCC has not indicated any intent to extend the deadline.”

She added, that “where spectrum is unassigned over tribal lands, all tribal nations should be granted emergency temporary authority to operate within those unassigned frequencies. This has been granted to some tribal nations, such as Navajo Nation and the Makah Tribe, during the pandemic. Where infrastructure exists that could operate broadband wireless networks within unassigned spectrum, granting temporary authority to operate within those frequencies provides a virtually no cost federal solution to increased broadband deployment in Indian Country. Where suitable infrastructure does not exist, temporary infrastructure could be deployed by a tribal nation to utilize access to these unassigned licenses and rapidly deploy broadband networks. Accordingly, NCAI asks that Congress take action to grant this temporary authority to all tribal nations during the pandemic.”

Ms. Sharp said, “While tribal nations welcome the creation of the TPW for the 2.5GHz spectrum, they have noticed that FCC proceedings have increasingly excluded large categories of tribal lands resulting in potential pockets of coverage. The federal government has a trust relationship to all federally recognized tribal nations which includes the delivery of services to all tribal lands. Despite this obligation, the FCC restricted qualification for the 2.5 GHz Band TPW to only limited types of ‘rural’ tribal lands and have excluded tribal lands held in trust by the federal government if they are off-reservation. This has effectively created classes of tribal nations to whom the FCC owes its tribal trust responsibility.

“Further, this restrictive definition hinders efforts to deploy 2.5 GHz services to population dense areas of a tribal nation’s lands which can negatively impact their deployment planning and make broadband investment economically infeasible. FCC’s decision also contradicts industry practice which factors in population density for economic efficiency in deployment of wireless services. To address this inequity, the FCC should be required to use the existing definition of tribal lands at 47 CFR § 73.7000 and include all tribal lands under that definition in the 2.5 GHz band TPW because this definition already addresses the entity and location based considerations raised by the FCC25 without abrogating the federal governments treaty and trust obligations to all tribal nations on all tribal lands,” she added.

Dr. Charles Grim, secretary of the Chickasaw Nation Department of Health, said in his written testimony, “The Chickasaw Nation has demonstrated its determination to work towards bridging the digital divide in Indian Country by self-funding the construction of a nearly $26 million dollar fiber network that encompasses its territorial boundaries.”

Trace Fiber Networks LLC, a wholly-owned subsidiary of the Chickasaw Nation, is pursuing a fixed wireless broadband solution to complement its existing fiber network, he added. “This particular solution will utilize a combination of both temporary Cell-on-Wheel (COW) towers, and permanent wireless towers to which Trace Fiber Networks will then extend its fiber network. The total cost for the construction of the new wireless towers is valued at just under $27 million dollars, and we respectfully request that Congress consider allocating funding for this investment,” Dr. Grim said.

Dr. Grim suggested, “Some possible funding solutions are direct grants to tribes to fully fund broadband access construction projects and fixed broadband wireless solutions. These grants could be through the BIA Community & Economic Development or Economic Development (TPA) Broadband; the USDA Rural Utilities Service Distance Learning, Telemedicine and Broadband Program or the VA Rural broadband efforts.”

Rep. John Shimkus (R., Ill.) said during his allotted question time that the authors of the National Defense Authorization Act for fiscal 2021 are “trying to steal our jurisdiction” with respect to the FCC’s approval of Ligado Networks LLC’s request for a license modification to enable it to deploy a nationwide broadband terrestrial network in the L-band (TR Daily, April 20). “I hope we would develop a bipartisan strategy for the [consideration of the NDAA on the House] floor to strip” those provisions, he said.

Rep. Bob Latta (R., Ohio) noted Mr. Nez’s call for the elimination of regulatory barriers to construction projects, and said that a recent package of 27 bills by Republican members of the committee would help address such “reforms that don’t cost any money” (TR Daily, June 25).

Rep .Jerry McNerney (D., Calif.) noted that the House has acted to extend the 2.5 GHz tribal priority window by 180 days, but that meanwhile the “FCC could act on its own.” He asked Mr. Nez about the Navajo Nation’s process for deciding whether to apply for spectrum.

Mr. Nez noted that the Navajo Nation covers 25,000 square miles in three states. “In terms of broadband and Internet access, … we have to be able to work with [those] states as well,” he said. He noted that in the western part of Navajo Nation, “we have a hospital that doesn’t have access to … fiber. This type of [2.5 GHz] spectrum would give some relief … to these places that don’t have fiber.”

Rep. Tim Walberg (R., Mich.) said that he has offered “a bill that would provide categorical NEPA [National Environmental Policy Act] exemptions for broadband in brownfields” where the environment has already been “heavily disrupted” by industrial activity.

Mr. Nez said that the Navajo Nation has been advocating for such an exemption, “but not just for broadband.” He said it should be possible to “approve everything”—water, electrical, roads—“in one action.”

Rep. Wallberg noted that the Navajo Technical University has a “tower tech program.”

Rep. Kurt Schrader (D., Ore.) said that he is “very worried about the digital divide” and concerned that with schools closed during the pandemic, lack of broadband access to online education “will only make educational disparities even bigger.”

Rep. Buddy Carter (R., Ga.) asked Dr. Grim about the perception that during the COVID-19 pandemic, the U.S. has made “10 years of progress in telehealth.”

Dr. Grim pointed to some of the barriers to telehealth created where there is a lack of broadband connectivity. To provide some telehealth services—or to receive insurance reimbursement for them—a broadband connection is necessary, not just a voice connection, he noted.

However, he also said that “telehealth is often more acceptable to patients” for psychiatric and behavioral health issues than “coming in to talk to someone face to face.”

In a statement issued ahead of the hearing, Mark Colwell, director–telecommunications strategy for educational broadband licensee Voqal USA, said, “One of the very few bright spots of the EBS [educational broadband service] rulemaking last July was the creation of the Rural Tribal Priority Window. As of today, the FCC has received just 69 applications out of 639 eligible areas. While not every eligible area is ideal for network buildout, we certainly believe more than 11 percent of rural Tribal areas have potential for deployment. The COVID-19 pandemic has created health and governance challenges for tribes, yet the Commission appears unwilling to extend the window, despite requests from Congress. Tribes deserve more time given the extraordinary circumstances and the persistent digital divide on tribal lands.”

Today, 16 public interest, rural, tribal, and consumer advocacy groups wrote to Congress urging lawmakers to request the FCC to extend the 2.5 GHz tribal priority window.

“Despite the promise of this opportunity for tribal communities, Tribes have faced significant hurdles to finishing their applications on time due to the COVID-19 crisis: (1) the vast majority of application workshops were cancelled, as were other forms of in-person outreach; (2) surveys of tribal lands to confirm maps have been difficult to complete, and requests for waivers based on survey data are time consuming due to the impacts of COVID-19; (3) stay-at-home orders have delayed tribal decision making; and (4) an extension will not impact timely filers, nor the 2.5 GHz auction. All these obstacles are further aggravated by the lack of broadband access, basic telephone service, or reliable electric power on many tribal lands. The unprecedented impact of the global crisis on this particular proceeding warrants a deadline extension,” the groups said.

Signatories included the American Library Association, the First Nations Development Institute, the Native American Finance Officers Association, the National Congress of American Indians, the National Hispanic Media Coalition, Native Public Media, New America’s Open Technology Institute, Tribal Digital Village, Public Knowledge, and Voqal. —Lynn Stanton, [email protected]

MainStory: FederalNews Congress FCC BroadbandDeployment WirelessDeployment BroadbandAdoption Covid19

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