TR Daily FCC Extends Rural Tribal Priority Window for 30 Days
Friday, July 31, 2020

FCC Extends Rural Tribal Priority Window for 30 Days

The FCC’s Wireless Telecommunications Bureau today extended for 30 days the 2.5 gigahertz band rural tribal priority window, only a sixth of the 180-day or so extension sought by tribal, public interest, industry, and other entities, members of Congress, and the Bureau of Indian Affairs.

The current 182-day window, which opened on Feb. 3, was set to close on Monday. It will now run through Sept. 2.

“Under my leadership, the Commission for the first time ever is giving Tribes priority access to spectrum. I’m pleased to see that we’ve already received a large number of applications during the Rural Tribal Priority Window. And due to the COVID-19 pandemic, I believe that it is appropriate to extend the application deadline by 30 days,” FCC Chairman Ajit Pai said in a news release. “By contrast, a much longer extension would substantially delay our award of licenses to Tribal entities and thus delay their ability to use this spectrum to connect those consumers living on Tribal lands. Moreover, in light of the simplified application process as well as the extensive outreach done by Commission staff, a lengthy extension of the deadline is unnecessary, as evidenced by the large number of applications we’ve already received.”

Mr. Pai added that he is “tremendously proud of our team’s efforts on this important project, including contacting every federally recognized Tribe and Alaskan Native Village in America directly before the window opened, participating in over 30 outreach events, fielding over 780 inquiries to date, and taking numerous other steps to raise awareness and actively support applicants.”

“This 30-day extension strikes an appropriate balance between providing more time for additional Tribal entities to apply and not unduly delaying the grant of licenses to those that have already applied so that they can quickly put this spectrum to use for rural Americans on Tribal lands who are too often on the wrong side of the digital divide,” the news release stressed.

"I’m glad the FCC will extend the window thirty days,” said Democratic Commissioner Jessica Rosenworcel. “But let’s be real. This extension does not adequately make up for time lost during this public health crisis. It doesn’t honestly reflect the lack of deployment on Tribal Lands and the federal trust responsibility we have to expand this opportunity as broadly as possible. So I hope we can consider further extension down the road so that all Tribal communities who wish to participate have the ability to do so."

In a tweet today, Democratic Commissioner Geoffrey Starks also criticized the 30-day extension. “Despite support for more time from tribes, @TMobile & @USIndianAffairs, @FCC extends the 2.5GHz tribal filing window by only 30 days. #COVID19 has devastated tribes—they deserved more time. @FCC now must process waiver petitions fairly & quickly,” he said.

Commissioner Mike O’Rielly said in a statement, “Having never been a fan of the 2.5 GHz tribal priority window in the first place, it would seem a global pandemic is a good reason for the FCC to extend the deadline. We should also demand that tribes file information, within a set timeframe, to capture the true scope and reality of situation.”

In seeking an extension of around 180 days of the filing window, entities cited delays that tribes have faced while trying to complete applications during the COVID-19 pandemic, including the cancellation of in-person application workshops and other burdens facing tribes in the past few months. The lack of reliable broadband service has also made it difficult for tribes to complete applications, the entities argued.

But in the memorandum opinion and order adopted today in WT docket 18-120, the bureau said the 30-day extension was warranted and that a longer extension was not needed given the extensive outreach by the FCC and the number of applications filed by tribes so far.

“As of today, rural Tribes have submitted 229 applications, with another 55 applications saved in the Commission’s Universal Licensing System,” the bureau said. “In light of the ongoing COVID-19 pandemic, we nonetheless find that additional time may be needed for some rural Tribes to take advantage of the Rural Tribal Priority Window. As such, we find good cause to extend the filing window by 30 days—to September 2, 2020—to ensure an additional opportunity for eligible Tribes to participate in the filing window. In turn, we deny requests for significantly longer extensions because our extensive outreach efforts, coupled with the large number of applications we have already received from eligible rural Tribes where there are significant amounts of unassigned 2.5 GHz spectrum, make clear that such a long extension is unnecessary—and would itself be unproductive in getting this spectrum into use by delaying the licensing of both Tribes (through the filing window) and commercial operators (through the auction to come). We encourage any prospective rural Tribal applicants to reach out to the Bureau and ONAP [Office of Native Affairs and Policy] immediately for additional support to successfully complete and timely submit an application.”

The bureau also said it disagrees “with several assertions in the record. First, we disagree with Public Knowledge’s claim that an additional 180 days is needed because even already-submitted applications ‘will need to be amended before the deadline’ or else be dismissed—a concern echoed in the NCAI [National Congress of American Indians] motion that ‘any error in an application requiring a major amendment—such as insufficient documentation to support any element of the application—will result in the dismissal of the application with no ability to cure the deficiency.’ Such claims are incorrect. Applicants will be able to file minor amendments after the window closes, and such minor amendments include supplementation of documentation that Commission staff finds to be lacking after initial application review. Indeed, our own initial, informal review of pending applications suggests that most mistakes of the type cited by NCAI, such as the need for additional supporting documentation, can be cured by permissible minor amendments.”

“Second, we disagree with Public Knowledge that eligible Tribes need to conduct land surveys before filing their application,” the bureau added. “Commission staff have already used official Census Bureau records to create the rural Tribal land map shape files that are required to be included as part of the application, and Commission staff have made them available to applicants to upload as part of the application process. And both the Bureau of Indian Affairs and the State of Alaska are providing direct assistance to eligible entities that need help with shapefiles. … With respect to NCAI’s argument that Tribes that share Tribal land allegedly need additional time to coordinate their plans, NCAI fails to present any specific examples of Tribes that are unable to apply because they have interest in the same rural Tribal land. Moreover, the Procedures Public Notice sets forth a process for resolution of any such overlap, or ‘mutual exclusivity,’ after the application window closes.

“Third, we disagree with Public Knowledge that the cancellation of in-person events after the onset of the pandemic demands a 180-day extension. As outlined at length above, the Commission planned for and conducted an extensive outreach program before the opening of the Rural Tribal Priority Window, with 22 separate events conducted before the window even opened, along with direct contacts made with every single eligible Tribe and Alaska Native Village, and letters sent to all eligible Tribes providing information about the filing window, links to the Commission’s 2.5 GHz Rural Tribal Priority Window website and mapping tool, and contact information where Tribes and Alaska Native Villages could get more details,” the bureau said. “Even after the window opened, Commission staff participated in an additional eight outreach events. More informally, Commission staff have fielded more than 780 inquiries from Tribes and other interested parties, answering questions and actively assisting Tribes in preparing and submitting their applications. In short, while we appreciate the value of in-person events, we were able to complete extensive and ongoing outreach to Tribes both before and during the window despite the ongoing pandemic.

“Fourth, we disagree with the repeated assertion in the NCAI Motion that ‘hundreds’ of eligible Tribes were unaware of this opportunity and thus will be unable to participate in the existing filing window,” the bureau said. “The Commission twice reached out to every single federally recognized Tribe and Alaska Native Village before the Rural Tribal Priority Window opened, and staff have diligently worked with every single eligible Tribe that has shown interest to facilitate the successful submission of an application. What is more, NCAI offers not evidence, but merely the generalized assertion, that any eligible and interested Tribe will be unable to apply with an earlier deadline—let alone hundreds. And to the extent NCAI does identify any such Tribes, we encourage those Tribes to contact the Bureau and ONAP immediately so we can assist them with the timely completion of their application.”

NCAI criticized the bureau’s decision to grant only a 30-day extension.

“The FCC argues that ‘[a]n extension would delay the ability of those Tribes that have filed to receive licenses to provide badly needed broadband service to their communities.’ However, the FCC record provides no support for this assertion, which only serves to create needless and harmful division between tribal nations. As set forth in the National Congress of American Indians’ Motion to Stay, tribal nations that have applied for the TPW would not be harmed by an extension because the FCC has granted Special Temporary Authority to several tribal nations to begin operating in the 2.5 GHz band, and can do so for others,” NCAI said.

“The TPW is one of the few inexpensive solutions to overcoming the numerous barriers that have prevented better connection to tribal areas, as well as preparing them for future high-speed connections. A failure to recognize the effect of COVID-19 on the very entities the FCC seeks to help with the TPW will affect access to basic healthcare and education across Indian Country,” the group added. “Significant additional time for tribal nations to file for licenses during this window is necessary and critical. The FCC, at a minimum, must provide the same 180-day extension to tribal nations that it gave to the cable industry due to COVID-19. Indian Health Service and Center for Disease Control data document the devastating impacts of COVID-19 across Indian Country. The FCC must uphold its trust responsibility to Indian Country, especially during this unique time of need. Failure to do so is unacceptable.”

Public Knowledge also criticized the 30-day extension.

“Thirty days is simply not enough time for Tribes to complete the discussions and research needed prior to completing their applications. The Bureau of Indian Affairs, Tribal organizations, industry leaders, members of Congress, and digital divide activists asked the FCC for at minimum a 90-day extension, preferring an additional 180 days,” said Harold Feld, senior vice president of the group.

“In the Order, the FCC uses T-Mobile’s support of the overall rejuvenation of the band to justify a limited 30 day window. T-Mobile’s letter actually supports a 90-day extension for Tribes to continue applying for this potentially transformative opportunity. The FCC gave the cable industry a 180-day extension to implement the Television Viewer Protection Act because of the ‘disruptions of Covid.’ Tribes should be given the same consideration,” Mr. Feld added.

“The FCC also claims it acts to protect Tribes who have already filed. But no one, including Tribes that have already filed, raised this argument with the FCC. To the contrary, all Tribes and multi-tribal organizations in the record – including the National Congress of the American Indians, the oldest and largest organization representing Native Americans – have stated that they canvassed their members and found no objections. Further, while the FCC celebrates the ‘large number’ of Tribes that have applied, this ignores the far, far larger number of Tribes under lockdown or otherwise excluded by this too short extension,” Mr. Feld argued.

“We call on Congress to take action in the next COVID relief bill to honor the request of the National Congress of American Indians, the Bureau of Indian Affairs, the Congressional Native American Caucus, and others to extend the Tribal Priority Window until February 1, 2021,” Mr. Feld said. “We also call on the FCC to reconsider its decision and grant an extension of sufficient time to allow all eligible Tribes to participate in this unique opportunity to bring broadband to Tribal lands.” —Paul Kirby, [email protected]

MainStory: FCC FederalNews SpectrumAllocation Covid19

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