[Federal Register Volume 76, Number 64 (Monday, April 4, 2011)]
[Proposed Rules]
[Pages 18476-18490]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-7825]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 1
[WT Docket No. 11-40; FCC 11-29]
Improving Communications Services for Native Nations by Promoting
Greater Utilization of Spectrum Over Tribal Lands
AGENCY: Federal Communications Commission.
ACTION: Proposed rule.
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SUMMARY: This document seeks comment on a range of specific proposals
and issues with the objective of promoting greater use of spectrum over
unserved and underserved Tribal lands.
DATES: Comments are due on or before May 19, 2011; reply comments are
due on or before June 20, 2011.
ADDRESSES: You may submit comments, identified by WT Docket No. 11-40,
by any of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
Federal Communications Commission's Web Site: http://fjallfoss.fcc.gov/ecfs2/. Follow the instructions for submitting
comments.
Paper Filers: Parties who choose to file by paper must
file an original and four copies of each filing. Filings can be sent by
hand or messenger delivery, by commercial overnight courier, or by
first-class or overnight U.S. Postal Service mail. All filings must be
addressed to the Commission's Secretary, Office of the Secretary,
Federal Communications Commission.
All hand-delivered or messenger-delivered paper filings
for the Commission's Secretary must be delivered to FCC Headquarters at
445 12th St., SW., Room TW-A325, Washington, DC 20554. All hand
deliveries must be held together with rubber bands or fasteners. Any
envelopes must be disposed of before entering the building.
Commercial overnight mail (other than U.S. Postal Service
Express Mail and Priority Mail) must be sent to 9300
[[Page 18477]]
East Hampton Drive, Capitol Heights, MD 20743.
U.S. Postal Service first-class, Express, and Priority
mail must be addressed to 445 12th Street, SW., Washington, DC 20554.
People with Disabilities: Contact the FCC to request
reasonable accommodations (accessible format documents, sign language
interpreters, CART, etc.) by e-mail: [email protected] or telephone: 202-
418-0530 or TTY: 202-418-0432.
In addition to filing comments with the Secretary, a copy
of any PRA comments on the proposed collection requirements contained
herein should be submitted to the Federal Communications Commission via
e-mail to [email protected] and to Nicholas A. Fraser, Office of Management
and Budget, via e-mail to [email protected] or fax at 202-395-5167.
FOR FURTHER INFORMATION CONTACT: Wireless Telecommunications Bureau,
Auctions and Spectrum Access Division: Stephen Johnson, Attorney
Advisor, at (202) 418-0660. For additional information concerning the
information collection requirements in this document, send an e-mail to
[email protected] or contact Judith B. Herman at 202-518-0214.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's
Spectrum over Tribal Lands Notice of Proposed Rule Making (Spectrum
over Tribal Lands NPRM) adopted and released on March 3, 2011, in WT
Docket No. 11-40. The complete text of the Spectrum over Tribal Lands
NPRM is available for public inspection and copying from 8 a.m. to 4:30
p.m. ET Monday through Thursday or from 8 a.m. to 11:30 a.m. ET on
Fridays in the FCC Reference Information Center, 445 12th Street, SW.,
Room CY-A257, Washington, DC 20554. The Spectrum over Tribal Lands NPRM
may be purchased from the Commission's duplicating contractor, Best
Copy and Printing, Inc. (BCPI), 445 12th Street, SW., Room CY-B402,
Washington, DC 20554, telephone 202-488-5300, fax 202-488-5563, or you
may contact BCPI at its Web site: http://www.BCPIWEB.com. When ordering
documents from BCPI, please provide the appropriate FCC document
number, for example, FCC 11-29. The Spectrum over Tribal Lands NPRM is
also available on the Internet at the Commission's Web site or by using
the search function for WT Docket No. 11-40 on the ECFS Web page at
http://www.fcc.gov/cgb/ecfs/.
Initial Paperwork Reduction Act of 1995 Analysis
This document contains proposed information collection
requirements. The Commission, as part of its continuing effort to
reduce paperwork burdens, invites the general public and the Office of
Management and Budget to comment on the information collection
requirements contained in the document, as required by the Paperwork
Reduction Act of 1995, Public Law 104-13. Comments should address: (a)
Whether the proposed collection of information is necessary for the
proper performance of the functions of the Commission, including
whether the information shall have practical utility; (b) the accuracy
of the Commission's burden estimates; (c) ways to enhance the quality,
utility and clarity of the information collected, and (d) ways to
minimize the burden of the collection of information on the
respondents, including the use of automated collection techniques or
other forms of information technology. In addition, pursuant to the
Small Business Paperwork Relief Act of 2002, Public Law 107-198, 44
U.S.C. 3506(c)(4), the Commission seeks specific comment on how the
Commission might further reduce the information collection burden for
small business concerns with fewer than 25 employees.
I. Synopsis
1. While competitive market forces have spurred robust wireless
communications services in many areas, connectivity for federally-
recognized American Indian Tribes and Alaska Native Villages (Tribes)
and other residents in many Tribal areas remains at significantly lower
levels. Although the Commission has adopted a range of programs
intended to promote access to wireless radio and other communications
services in Tribal areas, its deep concern about the lack of wireless
service on Tribal lands is prompting it to consider developing new
mechanisms to foster increased access to wireless services for members
of Tribes and other residents of underserved Tribal lands.
2. The Spectrum over Tribal Lands NPRM seeks comment on a series of
proposals that have the objective of promoting greater use of spectrum
over Tribal lands. It also seeks comment on what Tribal lands and
Wireless Radio Services should be subject to its proposals. The
proposals of the Spectrum over Tribal Lands NPRM are consistent with
the recommendations of the National Broadband Plan, see Federal
Communications Commission, Connecting America: The National Broadband
Plan, 97-98 (rel. Mar. 16, 2010) (National Broadband Plan). In the
Spectrum over Tribal Lands NPRM, the Commission makes five specific
proposals. First, it proposes to expand the current Tribal licensing
priority to Wireless Radio Services, establishing a licensing priority
that would be applicable to licenses for fixed and mobile wireless
services and available to qualifying Tribal entities for unserved or
underserved Tribal lands, where such Tribal lands are within the
geographic area covered by an unassigned Wireless Radio Services
license. Second, the Spectrum over Tribal Lands NPRM seeks comment on a
Tribal proposal to create a formal negotiation process under which
Tribes could work with incumbent wireless licensees to bargain in good
faith for access to spectrum over unserved or underserved Tribal lands.
Under this proposal, a Tribal entity could request initiation of
negotiations at any point in the term of a license, provided that the
Tribal entity can demonstrate that the licensee failed to negotiate in
good faith in connection with a previous attempt by the Tribal entity
to negotiate. Third, the Spectrum over Tribal Lands NPRM seeks comment
on a Tribal proposal that the Commission establish a process by which a
qualifying Tribal entity could require a licensee to build or divest a
geographic area covering unserved or underserved Tribal lands within
its license area. This proposal would be applicable only in those
situations where a licensee has already satisfied the construction
requirements of a license. Fourth, the Spectrum over Tribal Lands NPRM
proposes to establish a Tribal lands construction safe harbor for
wireless service providers. Under this proposal, a licensee that
provides a specified level of service to the Tribal land areas within
the geographic area of its license would be deemed to have met its
construction obligations for its entire service area. Fifth, the
Spectrum over Tribal Lands NPRM explores potential modifications to the
Commission's existing Tribal lands bidding credit rules. A Tribal lands
bidding credit is available to any winning bidder in a Commission
spectrum auction that commits to deploying facilities and providing
wireless service to qualifying Tribal lands. The Spectrum over Tribal
Lands NPRM seeks comment on such modifications of the Tribal lands
bidding credit rules as the extension of the current 3-year
construction deadline.
[[Page 18478]]
II. Discussion
3. The Commission seeks comment on a number of suggested approaches
to promote improvements in the availability of communications services
on Tribal lands, in part by considering Tribal proposals that would
provide additional opportunities for greater access by Tribes to
spectrum over Tribal lands. Three of the five proposals could create
new opportunities for Tribes to gain access to spectrum through
Wireless Radio Services licenses. The other two proposals are designed
to create new incentives for licensees to deploy wireless services on
Tribal lands. The Commission seeks comment on the following: (1) New
spectrum access opportunities (a) A proposal to expand the current
Tribal licensing priority to Wireless Radio Services, creating
opportunities for access to Wireless Radio Services licenses not yet
assigned; (b) A Tribal proposal to utilize the power of secondary
markets, by creating a formal negotiation process under which Tribes
could work with incumbent wireless licensees to bargain in good faith
for access to spectrum over unserved or underserved Tribal lands; (c) A
Tribal proposal to use spectrum lying fallow through an innovative
build-or-divest process that would allow Tribes to build out in areas
where licensees have met their construction requirement, but are not
serving the Tribal lands within their service areas. (2) Service
deployment incentives (a) A proposal to build on the Commission's
previous work in the rural context to establish a Tribal lands
construction safe harbor for wireless service providers; (b) A proposal
to make modifications to the Tribal lands bidding credit.
4. The Commission contemplates extending any programs, if adopted,
to federally-recognized American Indian Tribes and Alaska Native
Villages and seeks comment on extending eligibility for these programs
to entities owned and controlled by such Tribes. In addition, the
Commission seeks comment on the appropriate definitions of Tribal lands
and on the specific wireless services and Commission licensees to which
all of these proposals could apply.
5. In considering several processes by which Tribes could gain
access to spectrum over unserved or underserved Tribal lands, the
Commission notes that the National Broadband Plan suggested that
increasing Tribal access to and use of spectrum would create additional
opportunities for Tribal communities to obtain broadband access. See
National Broadband Plan, 97-98. In addition, the proposals the
Commission talks about are consistent with the National Broadband
Plan's recommendations that the Commission consider extending a Tribal
licensing priority to wireless services, developing rules for re-
licensing unused spectrum to Tribes, and encouraging use of secondary
market mechanisms to facilitate deployment of services to unserved or
underserved Tribal areas.
6. These proposals to provide new opportunities for Tribal access
to spectrum originated in Tribal submissions relating to development of
the National Broadband Plan and have been amplified in the context of
subsequent proceedings the Commission have initiated to consider the
National Broadband Plan's recommendations. The record thus developed
indicates that certain Tribal lands have historically been left behind
in the construction of infrastructure critical to communications
services. More specifically, there are assertions in the record that
many providers have not deployed wired services into Tribal lands and
that there are instances where wireless providers have failed to build
facilities on Tribal lands or have not marketed service to Native
Americans. The record also indicates that one path to successful
deployment of services on Tribal lands is through Tribal engagement in
direct provisioning of services. Some have suggested that underutilized
spectrum on Tribal lands may represent an untapped resource that could
be key to improving service (including broadband service) to Tribal
consumers, but have observed that under current policies Tribes face
substantial obstacles obtaining spectrum access.
7. The processes to provide new opportunities for Tribes to seek
access to spectrum would take into account conditions that have led to
the unavailability of adequate service on some Tribal lands. The
Commission seeks comment generally on those conditions and on whether
the various approaches that have been suggested may help address them
and achieve real benefits for Tribal consumers of wireless services.
The proposals for spectrum access in general seek to make underutilized
spectrum more available for use in unserved and underserved Tribal
lands. In this regard, the Commission notes that proposals for Tribal
access to spectrum may facilitate its broad goal of promoting increased
use of unused or underutilized spectrum through secondary market
mechanisms. Providing for additional mechanisms with respect to
spectrum access in licensed services over unserved or underserved
Tribal lands could significantly benefit those seeking such access in
that there is likely to be a mature eco-system for devices and
equipment where spectrum has already been licensed, so that new
licensees and new customers would be able to find and purchase existing
equipment in the marketplace. Ready availability of devices and
equipment can promote faster and more economical buildout and service
than would be possible using spectrum where new services are being
deployed. The Commission seeks comment on the potential benefits of
promoting additional mechanisms for Tribal access to licensed spectrum.
8. The Commission notes that there is not likely to be one answer
to the problem of improving the availability of communications services
on Tribal lands. Tribes may prefer to work with licensees to speed
construction and service on their Tribal lands. The Commission seeks
comment on how proposals for Tribal access to spectrum can also provide
incentives for construction without direct Tribal access to spectrum.
For example, in discussing the possibility of re-licensing spectrum
over unserved or underserved Tribal lands through a build-or-divest
process, the Commission seeks comment on providing a period during
which the licensee could construct and provide service to specific
Tribal lands. The Commission invites comment on whether such a process
may spur better coordination among Tribes and licensees. In this vein,
the Commission also makes proposals to provide new incentives for
construction on Tribal lands by non-Tribal Wireless Radio Services
licensees. The Commission seeks comment on all these proposed
approaches.
A. Tribal Lands and Wireless Radio Services Subject to Proposals
9. The Commission seeks comment on appropriate definitions of
Tribal lands for the purposes of the various proposals contained in the
Spectrum over Tribal Lands NPRM and seeks comment on which Wireless
Radio Services should be subject to these proposals.
i. Tribal Lands
10. The Commission seeks comment on how the term Tribal lands or
Tribal land should be defined for the purposes of the proposals
discussed in the Spectrum over Tribal Lands NPRM. The Commission
proposes to define Tribal land as any federally recognized Indian
tribe's reservation, Pueblo, or Colony, including former reservations
in Oklahoma, Alaska Native regions
[[Page 18479]]
established pursuant to the Alaska Native Claims Settlement Act and
Indian allotments.
ii. Wireless Radio Services Subject to Tribal Lands Programs
11. The Commission proposes that all Wireless Radio Services that
are licensed on a geographic area basis would be subject to the
proposals discussed in the Spectrum over Tribal Lands NPRM. These
services include: 700 MHz; Advanced Wireless Services; Narrowband and
Broadband Personal Communications Service; Broadband Radio Service and
Educational Broadband Service; 2.3 GHz Wireless Communications Service;
1670-1675 MHz; 1392-1395 MHz; 1432-1435 MHz; and 800 MHz and 900 MHz
Specialized Mobile Radio. Licensees in the 800 MHz Cellular service are
subject to licensing rules that permit third parties to acquire and
provide service to unserved areas. 800 MHz Cellular licenses and other
site-based services would not be subject to these proposals. The
Commission invites comment on whether each of these services should be
subject to the proposals. The Commission also seeks comment
specifically on whether to subject the Educational Broadband Service to
these changes at this time. The Commission asks commenters to address
whether it should either proceed with including EBS among the Wireless
Radio Services subject to Tribal lands programs or await Commission
action addressing Tribal issues in the EBS proceeding. The Commission
seeks comment on whether to use different licensing models for certain
services, should they be subject to different treatment or exclusion
from any of the proposals. Are there other wireless services that
should be included?
12. The Commission proposes that, should it decide in the future to
allocate or establish new wireless services, those services would be
subject to any new rules that might be established in this proceeding.
The Commission seeks comment on this proposal.
B. Definitions for Proposals on Tribal Access to Spectrum
13. The Spectrum over Tribal Lands NPRM discusses three proposals
for processes that would provide new opportunities for Tribes to gain
access to spectrum through Wireless Radio Services licenses. In
particular the Commission proposes a Tribal licensing priority and
discusses Tribal suggestions for additional processes that could
provide a path by which Tribal entities could gain access to spectrum
licenses with respect to geographic areas covering their Tribal lands
that are unserved or underserved as these terms are defined for these
purposes.
14. The Commission addresses definitions to assist in the potential
implementation of all three processes for (1) qualifying Tribal
entities eligible for these spectrum access opportunities, (2) unserved
and underserved Tribal lands, and (3) the boundaries of the geographic
area within a license to which the proposals would apply.
i. Eligibility and Legal Authority for Tribal Access to Spectrum
Opportunities
15. The Commission proposes that a Tribal licensing priority should
be available to qualifying Tribal entities as it defines them and seeks
comment on the application of this definition to the Tribal proposals
for spectrum access processes. A qualifying Tribal entity for these
purposes would be an entity designated by the Tribal government or
governments having jurisdiction over particular Tribal land for which
the spectrum access is sought. The Commission proposes that only the
following may be designated as qualifying Tribal entities: (1) Tribes;
(2) tribal consortia; (3) entities that are more than 50 percent owned
and controlled by a Tribe or Tribes. This is consistent with Commission
rules governing the Tribal priority in the broadcast radio licensing
context. The Commission proposes to use principles of control similar
to the principles set forth in its part 1 rules on attribution for
purposes of determining eligibility for designated entity benefits. The
Commission seeks comment on this definition. In particular, the
Commission seeks comment on whether it should limit eligibility for
these programs to the Tribal entities that have a geographical
connection to the area for which they seek spectrum access.
16. In proposing these eligibility requirements, the Commission
recognizes that the legal foundation for providing opportunities to
Tribes for access to spectrum is based on the federal government's
trust relationship with Tribal governments.
17. The unique trust relationship between the Commission and Tribes
provides a legal basis for the existing Tribal priority for broadcast
radio licenses. The Commission believes that this trust relationship
likewise justifies extension of the Tribal priority to wireless
licenses and seeks comment on its application to the other potential
spectrum access opportunities. Establishing processes that would
provide Tribes with increased opportunities for access to spectrum over
unserved or underserved Tribal lands would also be consistent with a
number of public interest objectives with regard to Tribal lands. The
Commission also believes that these proposals would satisfy the
relevant constitutional analysis because any proposed benefits would be
granted to Tribes and their members not as a discrete racial group,
but, rather, as members of quasi-sovereign tribal entities whose lives
and activities are governed by the Bureau of Indian Affairs in a unique
fashion.
18. While the Commission utilizes different processes to apply the
requirements of section 307(b) of the Communications Act in licensing
various broadcast services and in licensing Wireless Radio Services,
both the existing Tribal priority and the spectrum access proposals the
Commission discusses are intended to achieve similar goals of extending
service to those on Tribal lands. The Commission seeks comment on the
constitutional and statutory bases for adoption of a Tribal priority
for Wireless Radio Service licenses. The Commission also invites
comment on whether these authorities would support adoption of the
Tribal proposals to provide new spectrum access opportunities and
whether any other constitutional or statutory considerations should be
addressed in its analysis of those proposals.
19. The Commission proposes to base any determinations of control
using the existing attribution rules that it currently applies in the
context of making determinations concerning eligibility for designated
entity benefits for licenses assigned by auction as provided in part 1,
subpart Q of the Commission's rules. Using policies that are already
being utilized in the part 1, subpart Q attribution rules for purposes
of determining eligibility for a Tribal priority for Wireless Radio
Service licenses will ensure that applicants and licensees will be
subject to uniform requirements for the calculation of ownership,
control and affiliation interests. The Commission seeks comment on
whether attribution rules for determining eligibility as a qualifying
Tribal entity should take into account agreements between Tribal
entities and non-Tribal entities that may give rise to attribution of
interests under the existing subpart Q rules, such as management and
service agreements. Should there be any exclusions provided in the
attribution rules for this purpose based upon any unique ownership and
control issues associated with Tribal governments and Tribal entities?
The Commission seeks
[[Page 18480]]
comment on this approach for its proposed Tribal priority as well as in
connection with the Tribal proposals for other spectrum access
processes.
ii. Defining Unserved or Underserved Tribal Lands
20. The Commission proposes that a Tribal priority would be
available only with respect to Tribal land areas that are unserved or
underserved and seeks comment on using the same definition in
considering the Tribal proposals for spectrum access opportunities. The
Commission proposes to define as unserved or underserved those Tribal
lands where there is Wireless Radio Services coverage to not more than
65 percent of the population of the Tribal land area. The Commission
invites comment on this proposed definition and seeks comment on
alternatives.
21. Each of the proposals for spectrum access opportunities is
intended to create greater incentives for wireless deployment in such
unserved or underserved areas. The Commission believes that defining as
unserved or underserved those Tribal lands with Wireless Radio Services
coverage to not more than 65 percent of the population will identify
the places most in need of additional efforts to expand the
availability of wireless services. The Commission notes that for
purposes of its Tribal Land Bidding Credit program, it uses a threshold
wireline telephone subscribership rate of 85 percent. Should the
Commission define unserved or underserved as coverage by Wireless Radio
Services to less than or equal to 85 percent of the population as used
in the context of its Tribal Land Bidding Credit program? Alternatively
should the Commission define unserved or underserved as coverage that
is a specified percentage below some other standard of coverage? The
Commission seeks comment on these alternatives for defining unserved or
underserved.
22. Some wireless services are licensed on a site-specific basis,
such as 800 MHz cellular. Such site-based licensees are required to
meet applicable technical standards by maintaining certain levels of
signal strength throughout their entire service contours. Thus,
unserved or underserved areas do not arise within the contours of
licenses that are authorized on a site-specific basis. For this reason,
the Tribal priority and other spectrum access opportunities would not
apply to wireless services that are licensed on a site-specific basis.
iii. Defining Geographic Area for Which Tribal Access to Spectrum
Opportunities May Be Available
23. The Commission proposes that a Tribal priority would be
available with respect to a geographic area defined by the boundaries
of the Tribal land associated with the Tribal entity seeking the
access. The Commission seeks comment on this proposal. More
specifically, the Commission seeks comment on the interrelationship of
these proposed boundaries with its proposal that the Tribal priority
would be available only with respect to Tribal land areas that are
unserved or underserved. To the extent that there is some coverage
within the Tribal land area, should the boundaries for the Tribal
spectrum access be defined by the extent of that service? The
Commission also seeks comment on applying this definition to the Tribal
proposals for spectrum access opportunities.
24. The Commission also seeks comment on whether the boundaries of
the geographic area for a Tribal priority should include unserved or
underserved near-reservation areas and other areas beyond the
boundaries of Tribal lands. Would this assist in making wireless
services available to Tribal members that may reside in areas just
outside of a tribal reservation? If such near-reservation areas were
included, the Commission proposes that any such areas would be
comprised of U.S. Census block areas. Using Census block boundaries
will provide more certainty for all parties and will allow the
Commission to more easily administer such licenses in its existing
licensing systems. Should the Commission impose a limit on the amount
of such near-Tribal land areas that might be included? For instance,
should such areas be limited to comprising 25 percent or less of the
total geographic area for which spectrum access is sought? The
Commission seeks comment on whether the Commission should include
unserved or underserved near-reservation areas in defining the relevant
geographic area for the Tribal proposals for spectrum access processes.
25. Finally, the Commission seeks comment on whether carving out a
geographic area based on its proposed boundaries would give rise to
coordination and interference issues with neighboring licensees. How
can the Commission address any technical, interference or other issues
that may be raised by this proposal?
C. Tribal Licensing Priority for Unassigned Wireless Radio Services
Licenses
26. The Commission proposes to establish a licensing priority that
would be applicable to licenses for fixed and mobile wireless services
and available to qualifying Tribal entities for unserved or underserved
Tribal lands where such Tribal lands are within the geographic area
covered by an unassigned Wireless Radio Services license. In offering
this proposal the Commission notes the significant record support for
an expanded Tribal spectrum priority, which the National Broadband Plan
recommended for the consideration of the Commission. In making this
proposal, the Commission draws upon its recent adoption of a Tribal
priority in the context of licensing of broadcast radio services. Under
that policy, federally recognized Tribes, Tribal consortia, and
entities that are 51 percent or more owned by a Tribe or Tribes, are
entitled to a priority under section 307(b) of the Communications Act
of 1934, as amended, when proposing FM allotments, as well as applying
for AM and noncommercial educational FM stations, that would primarily
serve Tribal lands. Where a federally recognized American Indian Tribe
or Alaska Native Village entity applies for or proposes a broadcast
station or allotment and meets the requirements for a Tribal priority,
its application or proposal in most cases will receive a dispositive
preference under section 307(b), and thus may prevail based on a
threshold determination under that statutory provision. In the case of
a proposal for new AM commercial service, for example, such a
dispositive preference would result in the application proceeding to
processing without competitive bidding. In the case of proposals for
new noncommercial educational FM stations, the dispositive preference
would result in the tentative selection of the applicant receiving the
Tribal priority, without a fair distribution analysis or point system
comparison.
27. The Commission seeks comment on whether making available a
Tribal priority would facilitate access by Tribal entities to spectrum
over Tribal lands. The Commission also seeks comment on whether any
aspect of its proposed definitions should be modified specifically with
respect to their application to its proposed Tribal licensing priority.
28. The Commission seeks comment on how to address a number of
issues with respect to implementation of such
[[Page 18481]]
a Tribal priority in the context of Wireless Radio Services licenses.
i. Process and Licensing Framework for Awarding Tribal Priority
29. The Commission anticipates that it would establish a process
for licensing wireless services pursuant to a Tribal priority that
would generally avoid the opportunity for mutually exclusive
applications. While section 309(j)(1) of the Communications Act
requires the Commission to use auctions whenever it accepts mutually
exclusive applications for an initial license, section 309(j)(6)(E)
provides that the auction requirement of section 309(j)(1) does not
relieve the Commission of the obligation in the public interest to use
various means to avoid mutual exclusivity. Section 309(j)(6)(E)
provides that the Commission may use engineering solutions,
negotiation, threshold qualifications, service regulations and other
means to avoid mutual exclusivity in licensing processes where it
determines that it is in the public interest to do so. Because the
Commission anticipates that there generally would be only a single
qualifying Tribal entity with respect to any particular Tribal land
area, the Commission believes that the public interest would be served
by establishing a licensing scheme that would avoid mutually exclusive
applications. Should mutually exclusive applications from Tribal
entities be accepted under any Tribal priority licensing process that
the Commission establishes, the Commission proposes to resolve them
through competitive bidding. The Commission seeks comment on this
analysis.
30. The Commission seeks comment on alternative ways to provide
opportunities for eligible Tribal entities to file applications seeking
a Tribal priority for licenses covering specific Tribal lands within
geographic licensing areas in established Wireless Radio Services. One
approach would be to provide a Tribal priority application window after
the Commission has released a Public Notice proposing to offer specific
initial licenses in a spectrum auction but before the window for filing
auction applications opens. Alternatively, the Commission could provide
a Tribal priority application window prior to any announcement of
specific licenses to be offered in a spectrum auction. Assuming there
is only one Tribal priority application accepted for a particular
license, the portion of the license covering the Tribal land would not
be offered at auction. The Commission invites comment on the relative
merits and drawbacks of these alternative application approaches. In
light of data regarding limited access to communications services in
Tribal areas, the Commission anticipates that, under either approach,
it would undertake outreach efforts, in addition to Public Notices, in
order to widely disseminate information and maximize opportunities for
Tribes to benefit from any new licensing priority program.
31. The Commission anticipates that if a Tribal priority is
awarded, the Tribal entity will have to meet all legal, technical and
financial requirements to qualify for a license in the specific
Wireless Radio Service. In addition, the Commission proposes that all
construction and other conditions of the relevant license would apply
as if the license were awarded through the process normally applicable
for the specific service. The Commission seeks comment on these
proposals.
D. Tribal Proposals for Processes To Provide Access to Spectrum
Licensed to Third Parties
32. The relatively low rate of wireless coverage on Tribal lands
suggests that various Commission methods of promoting the deployment of
wireless services including service-specific construction requirements
and the secondary markets mechanisms may not be sufficient to provide
the incentives necessary to ensure the provision of wireless services
to Tribal lands. These proposals have been crafted to address the
unique communications-related circumstances faced by those living and
working on unserved and underserved Tribal lands, and do not more
generally address issues of spectrum access and secondary markets
beyond Tribal lands. The Commission seeks any additional information
that would help us better understand and address the problems faced by
those on Tribal lands in obtaining access to wireless services, and
seek comment on all aspects of these proposals. The Commission also
invites license holders to comment on reasons that they may not be
taking advantage of existing regulatory provisions that enable them to
allow other parties to access and use spectrum in areas under their
license that they do not expect to use themselves.
33. The Commission discusses two proposals offered by Tribes for
processes that could provide new opportunities for Tribal access to
spectrum for fixed and mobile wireless services that is licensed to
third parties. The first of these proposals seeks to address the
challenges that Tribes have alleged they have had in encouraging
wireless licensees to negotiate potential secondary market transactions
involving their licensed spectrum over Tribal lands. It would create a
formal negotiation process through which a Tribe that had been refused
good faith negotiations regarding a secondary markets transaction
within a wireless licensee's geographic area of license could require a
licensee to enter into such negotiations. The second proposal aims to
combat the hurdle some Tribes have encountered where wireless licensees
holding spectrum over Tribal lands have met their construction
requirements, but have not built out networks to provide service to
Tribal lands within their geographic area of license. It would enable a
Tribe to require the licensee either to build or to divest spectrum in
the relevant geographic area at any time after the licensee has
satisfied the construction requirements applicable to the particular
license. The Commission is seeking comment on making the two
opportunities it described here available only to qualifying Tribal
entities with respect to geographic areas covering Tribal lands that
are unserved or underserved. The Commission seeks comment on this
proposed application of the definition.
34. One way to implement each of these approaches would be for the
qualifying Tribal entities to initiate the specific process for seeking
spectrum access with respect to assigned licenses for Wireless Radio
Services by the filing of a Notice of Intent with the Commission and
service of the Notice of Intent on the licensee. Such a Notice of
Intent would have to provide the necessary information to demonstrate
the prerequisites for the specific process sought to be initiated. The
Commission would need information indicating that the filer is a
qualifying Tribal entity, as well as information demonstrating that the
relevant Tribal land is unserved or underserved in accordance with the
definition and information defining the geographic boundaries of the
area over which spectrum access is sought. The Commission seeks comment
on using such a Notice of Intent. The Commission also seeks comment on
providing the existing licensee with thirty days to provide information
to rebut the assertion that the Tribal land in question is unserved or
underserved. Would such a process for determining whether a Tribal land
area meets this service threshold be sufficient?
35. The Commission seeks comment on a number of specific issues
with respect to implementation of the Tribal proposals for providing
spectrum access opportunities through good faith
[[Page 18482]]
negotiations and build-or-divest processes.
i. Good Faith Negotiations
36. The record contains Tribal proposals that the Commission adopt
additional mechanisms for taking advantage of the secondary market
opportunities to improve service deployment. The proposal for a good
faith negotiation process is intended to address difficulties that
Tribes have detailed in securing access to spectrum rights held by
existing wireless licensees whose licenses cover Tribal land areas.
Tribal entities have long argued that they would provide coverage to
unserved and underserved Tribal lands if they could get access to the
spectrum, but that they have encountered a number of difficulties in
initiating and completing such negotiations.
37. Under the proposed process, Tribes could leverage existing
secondary market post-licensing opportunities to secure access to
spectrum over unserved and underserved Tribal lands through license
partitioning or through spectrum leasing. These secondary market
opportunities could involve leasing all or part of a licensee's
spectrum rights or partitioning a geographic portion of a license for
assignment to another entity. Robust and efficient secondary markets
increase the availability of unused or unneeded spectrum capacity and
may enable new users to deploy services where, for a number of possible
reasons, the original licensee did not. The Commission seeks comment on
whether such a good faith negotiations process would help provide
Tribes with access to spectrum licensed to other parties and lead to
better availability of Wireless Radio Services for consumers on Tribal
lands.
38. One way to implement such a proposal would be to create a
formal negotiation process that would enable a qualifying Tribal entity
to require a licensee to enter into good faith negotiations regarding a
secondary markets transaction with respect to any geographic portion of
the licensee's license area that is covered by unserved or underserved
Tribal lands. The Commission seeks comment on whether, if adopted, this
process would permit a qualifying Tribal entity to file a Notice of
Intent to initiate a good faith negotiations process at any time during
the license term, provided that the filing Tribal entity can
demonstrate that in connection with a previous attempt by the Tribe to
negotiate, the licensee failed to negotiate in good faith. The
Commission seeks comment generally on such a process and more
specifically on whether modifications of any aspect of the generally
applicable proposed definitions should be made. The Commission also
seeks comment on requiring that a Notice of Intent initiating this
process would have to include information about a previous negotiation
attempt in which the Tribal entity believes that the licensee did not
bargain in good faith. Would such a requirement raise issues regarding
confidential or proprietary information? If so, what protections could
the Commission establish to address those issues?
39. The Commission also seeks comment on what the contours of any
formal negotiating process, if adopted, should be. Should the
Commission adopt standards similar to those currently employed by the
Commission in the context of retransmission consent? Under such a
standard, to implement the good faith negotiation requirement, the
Commission could use a two-part test for good faith. See Implementation
of Satellite Home Viewer Improvement Act of 1999, Retransmission
Consent Issues: Good Faith Negotiation and Exclusivity, First Report
and Order, 65 FR 15559, March 23, 2000, amended on reconsideration in
part by Implementation of Satellite Home Viewer Improvement Act of
1999, Retransmission Consent Issues: Good Faith Negotiation and
Exclusivity, Order on Reconsideration, 66 FR 48219, September 19, 2001.
The first part of the test would consist of a brief, objective list of
negotiations standards. Such standards could include: First, a licensee
may not refuse to negotiate with a Tribal entity whose Tribal lands are
within its service area but to which it has not deployed service.
Second, a licensee must appoint a negotiating representative with
authority to bargain on partitioning and spectrum leasing issues.
Third, a licensee must agree to meet at reasonable times and locations
and cannot act in a manner that would unduly delay the course of
negotiations. Fourth, a licensee may not put forth a single, unilateral
proposal. By this, the Commission envisions that a licensee would have
to be willing to consider and discuss alternative terms or counter-
proposals, as it would appear that ``take it or leave it'' bargaining
without consideration of reasonable alternatives could be found to be
inconsistent with an affirmative obligation to negotiate in good faith.
Fifth, a Tribal entity, in responding to an offer proposed by a
licensee, must provide considered reasons for rejecting any aspect of
the licensee's offer. Finally, if an agreement is reached, a licensee
must agree to execute a written agreement that sets forth the full
agreement, between the licensee and the Tribal entity. The Commission
seeks comment on this potential approach should a formal negotiation
process be adopted.
40. The Commission seeks comment on whether a proposed good faith
test should include a totality of the circumstances standard. This
approach would enable a Tribal entity to present facts to the
Commission which, even though they do not allege a violation of the
objective standards, given the totality of the circumstances constitute
a failure to negotiate in good faith. The complainant would bear the
burden of proof when making a good faith complaint.
41. The Commission seeks comment on the merits and drawbacks of it
using such a good faith test for the proposed process. Should good
faith negotiations be concluded within any specified time period? If
so, what would be a reasonable time period? Should there be a
requirement that a Tribe availing itself of the process make a showing
that it has the financial wherewithal to fulfill its end of the
proposed transaction?
42. The Commission also seeks comment on whether there are
incentives the Commission could provide for conclusion of a license
partitioning or spectrum leasing transaction. For instance, would it be
beneficial to such a process if the Commission were to provide any
licensee that leases spectrum rights to a qualifying Tribal entity with
additional credit reflecting such coverage toward meeting its overall
construction requirement for the license? Are there other incentives
that might be beneficial?
43. Finally, the Commission seeks comment on whether any
partitioning or spectrum leasing transaction that may result from a
good faith negotiations process would be subject to all of the
Commission's rules applicable to such transactions as well as all of
the rules applicable to the relevant Wireless Radio Service, including
rules regarding construction requirements.
ii. Build-or-Divest Process
44. The record also reflects Tribal proposals that the Commission
establish a process by which a qualifying Tribal entity could require a
licensee to build or divest a geographic area covering unserved or
underserved Tribal lands within its license area. The notion is that
such a process might be available where an existing licensee has
satisfied the applicable construction requirements for the license yet
Tribal
[[Page 18483]]
land areas remain unserved or underserved under the Commission's
proposed definition. This proposal is intended to provide Tribal
governments with a process under which they could expedite service to
their Tribal lands. The Commission seeks comment on the efficacy of
this approach.
45. The Commission seeks comment on the best way to implement such
a process if adopted. For example, the Commission seeks comment on
whether, if adopted, this process would permit a qualifying Tribal
Entity to file a Notice of Intent to initiate a build-or-divest process
only after the relevant licensee had met the applicable construction
requirement. Would such a Notice of Intent for this purpose include, in
addition to the information already discussed, the date on which the
Commission accepted the licensee's notice of construction demonstrating
that it has satisfied its final construction requirement for the
license in which the unserved or underserved Tribal land is located?
The Commission also seeks comment on what information should be
included in a Notice of Intent filed in this context.
46. The Commission seeks comment on whether, after the filing of a
Notice of Intent by a Tribe initiating a build-or-divest process, if
adopted, the licensee should have to indicate whether it would agree
(a) to extend coverage to the Tribal land(s), or (b) relinquish its
authorization for the unserved or underserved Tribal land within the
geographic area of its license. Should the authorization of any
licensee that chooses to extend coverage and fails to do so within the
time allowed be terminated with respect to the geographic area covered
by the unserved or underserved Tribal land? The Commission also seeks
comment on whether the establishment of a build-or divest process would
promote coverage in these areas, and whether the rule should be
prospective only or apply to licenses already granted as well.
47. The Commission seeks comment on the particular construction or
performance requirements that might be imposed on any licensee that
opts for extending coverage to unserved or underserved Tribal lands
under the build-or-divest process. The Commission would want to
establish performance criteria that would reasonably result in timely
and meaningful service coverage to unserved or underserved tribal
areas, but that also acknowledges the difficulties of deploying
facilities in often remote and rural areas.
48. In line with the Commission's goal of expediting wireless
coverage to unserved and underserved communities, the Commission seeks
comment on a requirement that a licensee that opts to provide coverage
under the build-or-divest process must provide the specified level of
service within three years of the filing of a Notice of Intent. A
relatively short period would promote the availability of service to
residents of the affected tribal area. Alternatively, given the wide
variety of geographic sizes and population distributions of Tribal
lands nationwide, the Commission seeks comment on whether the
Commission should adapt the coverage requirements and deadlines to the
particular tribal population or geography. Are there any particular
special circumstances that, if encountered, would merit a longer time
period? Would a shorter time period be appropriate in particular
situations? Are there any measures the Commission should consider that
might facilitate coverage to Tribal lands under the build-or-divest
process?
49. The Commission also seeks comment on the technical rules to
which a license acquired through the build-or-divest process might be
subject. If the Commission were to determine that the Commission should
apply the additional tribal construction requirement to current
licensees, the Commission seeks comment on whether the existing
technical rules of such services are sufficient to protect the
incumbent and the Tribal entity from interference, or whether there
should be additional technical protections. Depending on the size and
geography of the particular Tribal land, as well as the proximity of
Tribal and non-Tribal sites to the shared boundary and to populated
areas of the other licensee's geographic area, it may be possible that
existing technical rules are insufficient to allow incumbent and Tribal
licensees to operate effectively. Existing technical rules may, in some
circumstances, unnecessarily restrict the types of services that may be
deployed in a given Tribal area. The Commission seeks comment regarding
the specific technical rights and protections that should be applied.
The Commission seeks comment on specific signal strengths to be applied
at the shared boundary, and other provisions that will protect the
incumbent and tribal licensee while also permitting both to serve their
licensed areas effectively. The Commission proposes that, for future
wireless services, the Commission should address these technical issues
in each service-specific rulemaking proceeding. The Commission invites
commenters to address these technical issues with respect to specific
Wireless Radio Services and particular Tribal land areas. The
Commission also requests that commenters identify those technical
issues or criteria that they believe would apply to Tribal areas
universally, or that should be applied to particular tribal areas
regardless of the wireless service involved.
50. Under the Tribal proposal for a build-or-divest process, the
geographic area covered by the unserved or underserved Tribal land
would become available for licensing to the qualifying Tribal entity
filing the Notice of Intent if a licensee opts to relinquish its
authorization rather than extend coverage or if it opts to extend
coverage and fails to do so within the time allowed. The Commission
seeks comment on requiring a Tribal entity to submit an application for
the available authorization to demonstrate its qualifications to hold a
Commission license.
51. The Commission seeks comment on applying construction
requirements should an unserved Tribal geographic area be relicensed to
a Tribal entity and asks how to define those requirements. The
Commission seeks comment on whether it should require a Tribal licensee
to provide the level of service that would otherwise be required of a
licensee opting to extend coverage within three years of the grant of
its license covering the Tribal land areas. The Commission seeks
comment on possible alternatives that might take into account these and
any relevant factors related to a new Tribal licensee's ability to
deploy service.
52. The Commission also seeks comment on whether to allow transfer
of or lease of spectrum rights with respect to all or part of the area
licensed to the Tribal entity through the build-or-divest process.
Should the Commission allow a qualified Tribal licensee to enter into
any secondary market transaction involving any portion of the licensed
area to a third party that does not meet the eligibility standards for
a qualifying Tribal applicant? Should the Commission take any action in
this regard to promote the objective of Tribal self-provisioning?
53. In the event that commenters support the ability by the Tribal
licensee to enter into secondary market transactions with respect to
all or a portion of its licensed area, the Commission requests that
commenters specify the conditions that would apply. For example, should
the Commission permit the licensee to transfer all or part of its
license once it has fulfilled its required service and construction
[[Page 18484]]
obligations, or otherwise ensured that a certain level of service is
being provided over Tribal lands? Would it be appropriate to allow
secondary market transactions if the Tribal licensee indicates it is
unlikely that it will be able to fulfill its construction obligations
and that a third party is willing to take the license and complete
construction by the appropriate deadline?
54. The Commission seeks comment on the effect of any such
requirements on the ability of Tribal licensees to enter into contracts
with third parties to build and operate wireless systems. Such
contracts may be the most effective way for Tribes to obtain access to
industry knowledge and equipment financing. The Commission seeks
comment on whether and to what extent the Commission should consider
leasing arrangements between qualifying Tribal entities and non-Tribal
entities to confer control that would disqualify the Tribal entity.
E. Tribal Lands Construction Safe Harbor
55. The Commission proposes to establish for licenses in the
Wireless Radio Services a Tribal lands construction safe harbor
provision. Under this proposal, a licensee that provides a specified
level of service to the Tribal land areas within the geographic area of
its license would be deemed to have met its construction obligations
for its entire service area. The Commission seeks comment on this
proposal. In particular would such a safe harbor create an incentive
for licensees to serve Tribal lands by providing an alternative method
to meet construction obligations with respect to any license that
includes Tribal lands within the geographic area?
56. This proposed Tribal lands construction safe harbor would
resemble current Commission rules that permit some licensees in some
services to satisfy their construction requirements by providing
service to rural areas. For example, the Commission's rules provide
that a Broadband Radio Service or Educational Broadband Service
licensee has met safe harbor by, among other things, deploying a
certain level of service to rural areas. For mobile service, this level
is defined as coverage being deployed to at least 75 percent of the
geographic area of at least 30 percent of the rural areas within the
licensed area.
57. The Commission seeks comment on the specific construction
requirement that must be met with respect to Tribal lands within the
geographic area of a license in order to qualify for the proposed safe
harbor. Specifically, for licenses with a substantial service
requirement, the Commission seeks comment on providing a Tribal lands
safe harbor for satisfaction of this requirement to a licensee that
deploys coverage to at least 75 percent of the geographic area of the
Tribal lands within the geographic area of its license area. The
Commission seeks comment on what requirements to impose with respect to
licenses that are subject to other forms of construction requirements.
What other specific requirements should a Tribal lands safe harbor
have? If such a safe harbor is established, what safeguards should be
adopted to prevent licensees from exploiting the safe harbor? For
example, should a licensee be permitted to avail itself of the proposed
safe harbor if the tribal area does not meet a minimum geographic size
or have a population that is at least ten percent of the area or
population of the market as a whole?
58. The Commission also seeks comment on whether it should apply a
construction multiplier rather than, or in addition to, a safe harbor
as an incentive to serve Tribal lands. A licensee would be permitted to
count the population or geographic coverage it has deployed to Tribal
lands multiplied by a set percentage towards satisfaction of the
licensee's construction requirement for the entire license area. The
Commission seeks comment on the appropriate construction multiplier
that would serve as an incentive for Tribal area buildout, as well as
ensure adequate construction in non-Tribal areas of a licensed
geographic area.
F. Potential Modification of Tribal Lands Bidding Credit Program
59. In a continuing effort to provide greater economic incentives
for bringing service to Tribal lands, the Commission also seeks to
explore potential modifications to its existing Tribal lands bidding
credit rules. This is consistent with the record and with the
recommendations of the National Broadband Plan. A Tribal lands bidding
credit (TLBC) is available to any winning bidder in a Commission
auction that commits to deploying facilities and providing wireless
services to qualifying Tribal lands. Qualifying Tribal lands are
defined as federally-recognized tribal areas that are either unserved
by any telecommunications carrier or that have a telephone service
penetration rate of 85 percent or less. The Tribal lands bidding credit
is in addition to any other bidding credit for which the applicant
qualifies, such as the small business bidding credit.
60. A winning bidder that meets the requirements for a TLBC is
entitled to the amount of $500,000 for the first 200 square miles (518
square kilometers) of qualifying Tribal lands, and $2,500 for each
additional square mile (2.590 square kilometers) above the initial 200
square miles (518 square kilometers) of qualifying Tribal lands. The
TLBC is capped, depending on the amount of the winning bid: for winning
bids less than or equal to $1 million, the cap is 50% of the amount
bid; for winning bids between $1 million and $2 million, the cap is
$500,000; and for winning bids in excess of $2 million, the cap is 35%
of the amount bid.
61. A licensee receiving a TLBC is subject to a construction
performance requirement. The licensee has three years from the grant of
its license to construct and operate a wireless system to cover at
least 75 percent of the tribal population within its market. At the end
of this three-year period, the licensee must notify the Commission that
it has met the 75 percent buildout requirement with regard to the
Tribal lands for which the credit was awarded. If a licensee fails to
make an adequate showing that it has met the 75 percent benchmark, it
will be required to repay the bidding credit, plus interest, within 30
days after the conclusion of the construction period.
62. One possibility would be to extend the TLBC program's current
3-year construction deadline. Such an extension would have the
advantage of providing additional time for a licensee to construct and
operate a wireless system. However, it could also delay deployment of
service to those residents of Tribal lands who are intended to benefit
from the TLBC. The Commission seeks comment on this possible extension
of the construction deadline.
63. The Commission could also consider extending the time frame to
complete the certification process. This might encourage more bidders
to seek the credit than would otherwise do so. The Commission invites
specific comment on these proposals and their potential costs and
benefits. The Commission also encourages commenters to offer any
additional proposals that they may have for improving the TLBC program.
64. Are there other possible changes the Commission could make to
the TLBC program that may more effectively promote service to Tribal
lands? For instance, are there ways in which to promote coordination
between the TLBC recipient and the relevant Tribal government that
could provide additional incentives for service deployment?
[[Page 18485]]
III. Procedural Matters
A. Ex Parte Rules--Permit-But-Disclose
65. This is a permit-but-disclose notice and comment rulemaking
proceeding. Ex parte presentations are permitted, except during the
Sunshine Agenda period, provided they are disclosed pursuant to the
Commission's rules.
B. Initial Regulatory Flexibility Analysis
66. As required by the Regulatory Flexibility Act (RFA), the
Commission has prepared this present Initial Regulatory Flexibility
Analysis (IRFA) of the possible significant economic impact on a
substantial number of small entities by the policies and rules proposed
in the Spectrum over Tribal Lands NPRM. Written public comments are
requested on this IRFA. Comments must be identified as responses to the
IRFA and must be filed by the deadlines for comments on the first page
of the Spectrum over Tribal Lands NPRM summary. The Commission will
send a copy of the Spectrum over Tribal Lands NPRM, including this
IRFA, to the Chief Counsel for Advocacy of the Small Business
Administration (SBA). In addition, the Spectrum over Tribal Lands NPRM
and IRFA (or summaries thereof) will be published in the Federal
Register.
i. Need for, and Objectives of, the Proposed Rules
67. The Spectrum over Tribal Lands NPRM seeks comment on proposals
that would promote increased use of spectrum over Tribal lands. The
proposals in the Spectrum over Tribal Lands NPRM are intended to
increase availability of wireless communications over Tribal lands. The
Commission has worked closely with federally-recognized American Indian
Tribes and Alaska Native Villages (Tribes) from around the country on
developing the proposals in the Spectrum over Tribal Lands NPRM.
68. The Spectrum over Tribal Lands NPRM contains five substantive
proposals. First, the Spectrum over Tribal Lands NPRM proposes to
expand the Commission's current Tribal licensing priority for broadcast
licenses to certain Wireless Radio Services, creating opportunities for
access to Wireless Radio Services licenses not yet assigned. Under the
current Tribal priority, federally-recognized Tribes, Tribal consortia,
and entities that are more than 50 percent owned by a Tribe or Tribes
are entitled to a priority relative to non-Tribal entities when
proposing FM allotments, as well as applying for AM and noncommercial
educational FM stations, that would primarily serve Tribal lands. As
envisioned in the Spectrum over Tribal Lands NPRM, an extension of this
Tribal priority to the licensing of wireless services could provide a
path by which Tribal entities could gain access to licensed spectrum
licenses covering their unserved and underserved Tribal lands.
69. Second, the Spectrum over Tribal Lands NPRM seeks comment on a
Tribal proposal to create a negotiation process under which Tribes
could work with entities that hold Wireless Radio Service licenses to
bargain in good faith for access to spectrum over unserved or
underserved Tribal land. This proposal aims to combat the hurdle some
Tribes have encountered where wireless licensees holding spectrum over
Tribal lands have met their construction requirements, but have not
built out networks to provide service to Tribal lands within their
geographic area of license. If adopted this process would allow Tribes
to take advantage of existing Commission rules and policies that allow
license holders to provide other parties with access to spectrum
through license partitioning or through spectrum leasing. For example,
the Spectrum over Tribal Lands NPRM envisions that a Tribe might
negotiate with a wireless licensee to lease or partition the portion of
the license that covers Tribal lands.
70. Third, the Spectrum over Tribal Lands NPRM invites comment on a
Tribal proposal to put into use licensed spectrum covering Tribal lands
that is not being used to provide wireless services. As described in
the Spectrum over Tribal Lands NPRM, a Tribal entity could initiate a
process under which a licensee would be obligated to build out in
unserved or underserved Tribal areas or divest the geographic license
area covering unserved or underserved Tribal lands. The Spectrum over
Tribal Lands NPRM seeks comment on making available such a process
where an existing licensee has satisfied the applicable construction
requirements for the license yet Tribal land areas remain unserved or
underserved. This proposal is intended to provide Tribal governments
with a process under which they could expedite service to Tribal lands.
71. A fourth proposal in the Spectrum over Tribal Lands NPRM would
encourage licensees to deploy service on Tribal lands by enabling
licensees that do so to satisfy, or get extra credit toward satisfying,
the construction requirements for their licenses by focusing
deployments on Tribal lands. This proposal is similar to previous
efforts by the Commission to provide incentives for licensees to deploy
service in rural areas. The Spectrum over Tribal Lands NPRM seeks
comment on all aspects of this proposal.
72. Fifth, the Spectrum over Tribal Lands NPRM seeks input on
possible revisions to the Commission's current Tribal lands bidding
credit program. The Commission proposes consideration of a range of
possible changes including: extending the current 3-year construction
deadline within which the recipient of a Tribal lands bidding credit
must deploy service on the relevant Tribal lands; and extension of the
current 180-day deadline for an auction winner to obtain the necessary
certification from the Tribal government for whose Tribal lands the
applicant seeks to provide service.
73. Adoption of some or all of the proposals in the Spectrum over
Tribal Lands NPRM may result in increased recordkeeping and reporting
requirements for certain Wireless Radio Services licensees that are
small businesses. The Commission therefore seeks comment on how to
minimize any such associated burden on licensees that are small
businesses.
ii. Legal Basis
74. The legal basis for the proposed rules and the Spectrum over
Tribal Lands NPRM is contained in sections 1, 2, 4(i), 7, 10, 201, 214,
251(e), 301, 302, 303, 307(b), 308, 309(j), 310, 319, 324, 332 and 333
of the Communications Act of 1934, 47 U.S.C. 151, 152, 154(i), 157,
160, 201, 214, 251(e), 301, 302, 303, 307(b), 308, 309(j), 310, 319,
324, 332, and 333, and 47 CFR 1.411.
iii. Description and Estimate of the Number of Small Entities To Which
the Proposed Rules Will Apply
75. The RFA directs agencies to provide a description of and, where
feasible, an estimate of the number of small entities that may be
affected by the proposed rules, if adopted. The RFA generally defines
the term small entity as having the same meaning as the terms small
business, small organization, and small governmental jurisdiction. In
addition, the term small business has the same meaning as the term
small business concern under the Small Business Act. A small business
concern is one which: (1) Is independently owned and operated; (2) is
not dominant in its field of operation; and (3) satisfies any
additional criteria established by the SBA.
76. Small Businesses. According to estimates prepared by SBA's
Office of Advocacy, in 2009, there were a total of
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approximately 27.5 million small businesses nationwide.
77. Small Organizations. Nationwide, as of 2002, there are
approximately 1.6 million small organizations. A small organization is
generally any not-for-profit enterprise which is independently owned
and operated and is not dominant in its field.
78. Small Governmental Jurisdictions. The term small governmental
jurisdiction is defined generally as governments of cities, towns,
townships, villages, school districts, or special districts, with a
population of less than fifty thousand. Census Bureau data for 2002
indicate that there were 89,476 local governmental jurisdictions in the
United States. The Commission estimates that, of this total, 84,377
entities were small governmental jurisdictions. Thus, the Commission
estimates that most governmental jurisdictions are small.
79. Wireless Telecommunications Carriers (except Satellite). Since
2007, the Census Bureau has placed wireless firms within this new,
broad, economic census category. Prior to that time, such firms were
within the now-superseded categories of Paging and Cellular and Other
Wireless Telecommunications. Under the present and prior categories,
the SBA has deemed a wireless business to be small if it has 1,500 or
fewer employees. For the category of Wireless Telecommunications
Carriers (except Satellite) preliminary data for 2007 show that there
were 11,927 firms operating that year. While the Census Bureau has not
released data on the establishments broken down by number of employees,
the Commission note that the Census Bureau lists total employment for
all firms in that sector at 281,262. Since all firms with fewer than
1,500 employees are considered small, given the total employment in the
sector, the Commission estimates that the vast majority of wireless
firms are small.
80. Wireless Communications Services. This service can be used for
fixed, mobile, radiolocation, and digital audio broadcasting satellite
uses. The Commission defined small business for the wireless
communications services (WCS) auction as an entity with average gross
revenues of $40 million for each of the three preceding years, and a
very small business as an entity with average gross revenues of $15
million for each of the three preceding years. The SBA approved these
definitions. The Commission conducted an auction of geographic area
licenses in the WCS service in 1997. In the auction, seven bidders that
qualified as very small business entities won licenses, and one bidder
that qualified as a small business entity won a license.
81. 1670-1675 MHz Services. This service can be used for fixed and
mobile uses, except aeronautical mobile. An auction for one license in
the 1670-1675 MHz band was conducted in 2003. The winning bidder was
not a small entity.
82. Wireless Telephony. Wireless telephony includes cellular,
personal communications services, and specialized mobile radio
telephony carriers. The SBA has developed a small business size
standard for Wireless Telecommunications Carriers (except Satellite).
Under the SBA small business size standard, a business is small if it
has 1,500 or fewer employees. According to Trends in Telephone Service
data, 413 carriers reported that they were engaged in wireless
telephony. Of these, an estimated 261 have 1,500 or fewer employees and
152 have more than 1,500 employees. Therefore, more than half of these
entities can be considered small.
83. Broadband Personal Communications Service. The broadband
personal communications services (PCS) spectrum is divided into six
frequency blocks designated A through F, and the Commission has held
auctions for each block. The Commission initially defined a small
business for C- and F-Block licenses as an entity that has average
gross revenues of $40 million or less in the three previous calendar
years. For F-Block licenses, an additional small business size standard
for very small business was added and is defined as an entity that,
together with its affiliates, has average gross revenues of not more
than $15 million for the preceding three calendar years. These small
business size standards, in the context of broadband PCS auctions, have
been approved by the SBA. No small businesses within the SBA-approved
small business size standards bid successfully for licenses in Blocks A
and B. There were 90 winning bidders that claimed small business status
in the first two C-Block auctions. A total of 93 bidders that claimed
small business status won licenses in the first auction for the D, E,
and F Blocks. In 1999, the Commission completed a subsequent auction of
C-, D-, E-, and F-Block licenses. Of the 57 winning bidders in that
auction, 48 claimed small business status and won 277 licenses.
84. The Commission completed an auction of C and F Block Broadband
PCS licenses in 2001. Of the 35 winning bidders in that auction, 29
claimed small business status. Subsequent events concerning that
auction, including judicial and agency determinations, resulted in only
a portion of those C and F Block licenses being available for grant.
The Commission completed an auction of C-, D-, E-, and F-Block licenses
in 2005. Of the 24 winning bidders in that 2005 auction, 16 claimed
small business status and won 156 licenses. In 2007, the Commission
completed an auction of licenses in the A, C, and F Blocks. Of the 12
winning bidders in that auction, five claimed small business status and
won 18 licenses. Most recently, in 2008, the Commission completed the
auction of C-, D-, E-, and F-Block Broadband PCS licenses. Of the eight
winning bidders for Broadband PCS licenses in that auction, six claimed
small business status and won 14 licenses.
85. Lower 700 MHz Band Licenses. The Commission previously adopted
criteria for defining three groups of small businesses for purposes of
determining their eligibility for special provisions such as bidding
credits. The Commission defined a small business as an entity that,
together with its affiliates and controlling principals, has average
gross revenues not exceeding $40 million for the preceding three years.
A very small business is defined as an entity that, together with its
affiliates and controlling principals, has average gross revenues that
are not more than $15 million for the preceding three years.
Additionally, the lower 700 MHz Service had a third category of small
business status for Metropolitan/Rural Service Area (MSA/RSA) licenses,
entrepreneur, which is defined as an entity that, together with its
affiliates and controlling principals, has average gross revenues that
are not more than $3 million for the preceding three years. The SBA
approved these small size standards. An auction of 740 licenses (one
license in each of the 734 MSAs/RSAs and one license in each of the six
Economic Area Groupings (EAGs)) was conducted in 2002. Of the 740
licenses available for auction, 484 licenses were won by 102 winning
bidders. Seventy-two of the winning bidders claimed small business,
very small business or entrepreneur status and won licenses. A second
auction commenced on May 28, 2003, closed on June 13, 2003, and
included 256 licenses. Seventeen winning bidders claimed small or very
small business status, and nine winning bidders claimed entrepreneur
status. In 2005, the Commission completed an auction of 5 licenses in
the Lower 700 MHz band. All three winning bidders claimed small
business status.
86. In 2007, the Commission reexamined its rules governing the 700
MHz band in the 700 MHz Second Report and Order. An auction of A, B
[[Page 18487]]
and E block 700 MHz licenses was held in 2008. Twenty winning bidders
claimed small business status (those with attributable average annual
gross revenues that exceed $15 million and do not exceed $40 million
for the preceding three years). Thirty three winning bidders claimed
very small business status (those with attributable average annual
gross revenues that do not exceed $15 million for the preceding three
years).
87. Upper 700 MHz Band Licenses. In the 700 MHz Second Report and
Order, 72 FR 48814, Aug. 24, 2007, FCC 07-132, the Commission revised
its rules regarding Upper 700 MHz licenses. In 2008, the Commission
commenced Auction 73 in which C and D block licenses in the Upper 700
MHz band were available. Three winning bidders claimed very small
business status (those with attributable average annual gross revenues
that do not exceed $15 million for the preceding three years).
88. 700 MHz Guard Band Licensees. In 2000, in the 700 MHz Guard
Band Order, the Commission adopted size standards for small businesses
and very small businesses for purposes of determining their eligibility
for special provisions such as bidding credits and installment
payments. A small business in this service is an entity that, together
with its affiliates and controlling principals, has average gross
revenues not exceeding $40 million for the preceding three years.
Additionally, a very small business is an entity that, together with
its affiliates and controlling principals, has average gross revenues
that are not more than $15 million for the preceding three years. SBA
approval of these definitions is not required. An auction of these
licenses was conducted in 2000. Of the 104 licenses auctioned, 96
licenses were sold to nine bidders. Five of these bidders were small
businesses. A second auction of 700 MHz Guard Band licenses was held in
2001. All eight of the licenses auctioned were sold to three bidders.
One of these bidders was a small business.
89. Air-Ground Radiotelephone Service. The Commission has
previously used the SBA's small business size standard applicable to
Wireless Telecommunications Carriers (except Satellite), i.e., an
entity employing no more than 1,500 persons. There are fewer than 10
licensees in the Air-Ground Radiotelephone Service, and under that
definition, the Commission estimates that almost all of them qualify as
small entities under the SBA definition. For purposes of assigning Air-
Ground Radiotelephone Service licenses through competitive bidding, the
Commission has defined small business as an entity that, together with
controlling interests and affiliates, has average annual gross revenues
for the preceding three years not exceeding $40 million. A very small
business is defined as an entity that, together with controlling
interests and affiliates, has average annual gross revenues for the
preceding three years not exceeding $15 million. These definitions were
approved by the SBA. In its 2006 auction of nationwide commercial Air-
Ground Radiotelephone Service licenses in the 800 MHz band, neither of
the winning bidders claimed small business status.
90. AWS Services (1710-1755 MHz and 2110-2155 MHz bands (AWS-1);
1915-1920 MHz, 1995-2000 MHz, 2020-2025 MHz and 2175-2180 MHz bands
(AWS-2); 2155-2175 MHz band (AWS-3)). For the AWS-1 bands, the
Commission has defined a small business as an entity with average
annual gross revenues for the preceding three years not exceeding $40
million, and a very small business as an entity with average annual
gross revenues for the preceding three years not exceeding $15 million.
In 2006, the Commission conducted its first auction of AWS-1 licenses.
In that initial AWS-1 auction, 31 winning bidders identified themselves
as very small businesses. Twenty-six of the winning bidders identified
themselves as small businesses. In a subsequent 2008 auction, the
Commission offered 35 AWS-1 licenses. Four winning bidders identified
themselves as very small businesses, and three of the winning bidders
identified themselves as a small business. For AWS-2 and AWS-3,
although the Commission does not know for certain which entities are
likely to apply for these frequencies, the Commission notes that the
AWS-1 bands are comparable to those used for cellular service and
personal communications service. The Commission has not yet adopted
size standards for the AWS-2 or AWS-3 bands but has proposed to treat
both AWS-2 and AWS-3 similarly to broadband PCS service and AWS-1
service due to the comparable capital requirements and other factors,
such as issues involved in relocating incumbents and developing
markets, technologies, and services.
91. 3650-3700 MHz band. In March 2005, the Commission released a
Report and Order and Memorandum Opinion and Order that provides for
nationwide, non-exclusive licensing of terrestrial operations,
utilizing contention-based technologies, in the 3650 MHz band (i.e.,
3650-3700 MHz). As of April 2010, more than 1270 licenses have been
granted and more than 7433 sites have been registered. The Commission
has not developed a definition of small entities applicable to 3650-
3700 MHz band nationwide, non-exclusive licensees. However, the
Commission estimates that the majority of these licensees are Internet
Access Service Providers (ISPs) and that most of those licensees are
small businesses.
92. Fixed Microwave Services. Microwave services include common
carrier, private-operational fixed, and broadcast auxiliary radio
services. They also include the Local Multipoint Distribution Service
(LMDS), the Digital Electronic Message Service (DEMS), and the 24 GHz
Service. At present, there are approximately 31,428 common carrier
fixed licensees and 79,732 private operational-fixed licensees and
broadcast auxiliary radio licensees in the microwave services. There
are approximately 120 LMDS licensees, three DEMS licensees, and three
24 GHz licensees. The Commission has not yet defined a small business
with respect to microwave services. For purposes of the IRFA, the
Commission will use the SBA's definition applicable to Wireless
Telecommunications Carriers (except satellite), i.e., an entity with no
more than 1,500 persons. Under the present and prior categories, the
SBA has deemed a wireless business to be small if it has 1,500 or fewer
employees. For the category of Wireless Telecommunications Carriers
(except satellite) preliminary data for 2007 show that there were
11,927 firms operating that year. While the Census Bureau has not
released data on the establishments broken down by number of employees,
the Commission notes that the Census Bureau lists total employment for
all firms in that sector at 281,262. Since all firms with fewer than
1,500 employees are considered small, given the total employment in the
sector, the Commission estimates that the vast majority of firms using
microwave services are small. The Commission notes that the number of
firms does not necessarily track the number of licensees. The
Commission estimates that virtually all of the Fixed Microwave
licensees (excluding broadcast auxiliary licensees) would qualify as
small entities under the SBA definition.
93. Broadband Radio Service and Educational Broadband Service.
Broadband Radio Service systems, previously referred to as Multipoint
Distribution Service (MDS) and Multichannel Multipoint Distribution
Service (MMDS) systems, and wireless cable, transmit video programming
to subscribers and provide two-way high
[[Page 18488]]
speed data operations using the microwave frequencies of the Broadband
Radio Service (BRS) and Educational Broadband Service (EBS) (previously
referred to as the Instructional Television Fixed Service (ITFS)). In
connection with the 1996 BRS auction, the Commission established a
small business size standard as an entity that had annual average gross
revenues of no more than $40 million in the previous three calendar
years. Of the 67 auction winners, 61 met the definition of a small
business. BRS also includes licensees of stations authorized prior to
the auction. At this time, the Commission estimates that of the 61
small business BRS auction winners, 48 remain small business licensees.
In addition to the 48 small businesses that hold BTA authorizations,
there are approximately 392 incumbent BRS licensees that are considered
small entities. After adding the number of small business auction
licensees to the number of incumbent licensees not already counted, the
Commission finds that there are currently approximately 440 BRS
licensees that are defined as small businesses under either the SBA or
the Commission's rules. In 2009, the Commission conducted an auction of
78 BRS licenses. The Commission offered three levels of bidding
credits: (i) A bidder with attributed average annual gross revenues
that exceed $15 million and do not exceed $40 million for the preceding
three years (small business) will receive a 15 percent discount on its
winning bid; (ii) a bidder with attributed average annual gross
revenues that exceed $3 million and do not exceed $15 million for the
preceding three years (very small business) will receive a 25 percent
discount on its winning bid; and (iii) a bidder with attributed average
annual gross revenues that do not exceed $3 million for the preceding
three years (entrepreneur) will receive a 35 percent discount on its
winning bid. Of the ten winning bidders, two bidders claimed small
business status; one bidder claimed very small business status; and two
bidders claimed entrepreneur status.
94. In addition, the SBA's Cable Television Distribution Services
small business size standard is applicable to EBS. There are presently
2,032 EBS licensees. All but 100 of these licenses are held by
educational institutions. Educational institutions are included in this
analysis as small entities. Thus, the Commission estimates that at
least 1,932 licensees are small businesses. Since 2007, Cable
Television Distribution Services have been defined within the broad
economic census category of Wired Telecommunications Carriers; that
category is defined as follows: This industry comprises establishments
primarily engaged in operating and/or providing access to transmission
facilities and infrastructure that they own and/or lease for the
transmission of voice, data, text, sound, and video using wired
telecommunications networks. Transmission facilities may be based on a
single technology or a combination of technologies. The SBA has
developed a small business size standard for this category, which is:
all such firms having 1,500 or fewer employees. To gauge small business
prevalence for these cable services the Commission must, however, use
the most current census data that are based on the previous category of
Cable and Other Program Distribution and its associated size standard;
that size standard was: all such firms having $13.5 million or less in
annual receipts. According to Census Bureau data for 2002, there were a
total of 1,191 firms in this previous category that operated for the
entire year. Of this total, 1,087 firms had annual receipts of under
$10 million, and 43 firms had receipts of $10 million or more but less
than $25 million. Thus, the majority of these firms can be considered
small.
iv. Description of Projected Reporting, Recordkeeping, and Other
Compliance Requirements for Small Entities
95. The Spectrum over Tribal Lands NPRM seeks public comment on a
broad range of possible solutions aimed at improving deployment of
wireless communications services on Tribal lands. Some of these
proposals could have potential reporting, recordkeeping, and compliance
burdens for small businesses. For example, Tribal entities, some of
which may be considered small entities, may be required to submit
information or applications in order to initiate processes for spectrum
access as proposed in the Spectrum over Tribal Lands NPRM. In addition,
the adoption of the good faith negotiation and/or some of the
construction proposals discussed in the Spectrum over Tribal Lands NPRM
might require a small business that provides wireless communications
service to areas including Tribal lands to keep records of its service
deployment on Tribal lands. If a Tribal entity were to request the
initiation of either the good faith negotiation or certain of the
proposals for constructing on unserved or underserved Tribal lands, a
small business WRS licensee might be required to submit service
deployment and related information to the Commission if it wished to
contest the initiation of either process. Similarly, the adoption of
the good faith negotiation standards proposed in the Spectrum over
Tribal Lands NPRM might require a small business WRS licensee to keep
records of negotiations, if any, between itself and a Tribal entity.
96. Because the specific nature of these proposals has not been
finalized, the Commission does not have a more specific estimate of
potential reporting, recordkeeping, and compliance burdens on small
businesses. The Commission anticipates that commenters will address the
reporting, record-keeping, and other compliance proposals made in the
Spectrum over Tribal Lands NPRM, and will provide reliable information
on any costs and burdens on small businesses for inclusion in the
record of this proceeding.
v. Steps Taken To Minimize Significant Economic Impact on Small
Entities, and Significant Alternatives Considered
97. The RFA requires an agency to describe any significant
alternatives that it has considered in reaching its proposed approach,
which may include the following four alternatives (among others): (1)
The establishment of differing compliance or reporting requirements or
timetables that take into account the resources available to small
entities; (2) the clarification, consolidation, or simplification of
compliance or reporting requirements under the rule for small entities;
(3) the use of performance, rather than design, standards; and (4) an
exemption from coverage of the rule, or any part thereof, for small
entities.
98. The proposals contained in the Spectrum over Tribal Lands NPRM
seek to benefit Tribes and residents of Tribal lands by promoting
increased use of spectrum over Tribal lands and thereby help to close
communications gaps on Tribal lands. If these programs are adopted and
are successful in encouraging the deployment of service to Tribal land
areas, Tribes, members of Tribes and other residents of Tribal lands
would benefit by having improved connectivity. These proposals, if
adopted, are not intended to impose any burden on Tribal entities,
though Tribes may assume additional obligations should they elect to
initiate the processes described in the Spectrum over Tribal Lands
NPRM. Therefore, this IRFA contains no analysis of the proposals'
burden on Tribes.
99. The reporting and recordkeeping requirements in the Spectrum
over Tribal Lands NPRM could have an impact on both small and large
entities. While any such impact could be more financially burdensome
for smaller
[[Page 18489]]
entities, the Commission believes the impact of such requirements would
be outweighed by the benefits of promoting greater utilization of
spectrum over Tribal lands. As discussed in Sections A and D of this
IRFA, the adoption of the proposals in the Spectrum over Tribal Lands
NPRM could result in increased reporting and recordkeeping burdens for
small businesses that hold certain Wireless Radio Service licenses. The
Commission asks for comment on alternative ways to minimize any such
burdens for small businesses. The Commission expects to consider the
economic impact on small businesses and other small entities, as
identified in comments filed in response to the Spectrum over Tribal
Lands NPRM, in reaching its final conclusions and taking action in this
proceeding.
vi. Federal Rules That May Duplicate, Overlap, or Conflict With the
Proposed Rules
100. None.
C. Initial Paperwork Reduction Analysis
101. This document contains proposed modified information
collection requirements subject to Office of Management and Budget
(OMB) approval; however, we are not submitting them to OMB at this
time. The Commission will submit the proposed modified information
collection requirements at the Final Rule Stage. The Commission, as
part of its continuing effort to reduce paperwork burdens, invites the
general public and OMB to comment on the information collection
requirements contained in this document, as required by the Paperwork
Reduction Act of 1995, Public Law 104-13. In addition, pursuant to the
Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44
U.S.C. 3506(c)(4), the Commission seeks specific comment on how the
Commission might further reduce the information collection burden for
small business concerns with fewer than 25 employees.
IV. Ordering Clauses
104. Accordingly, it is ordered, pursuant to sections 1, 2, 4(i),
7, 10, 201, 214, 251(e), 301, 302, 303, 307(b), 308, 309(j), 310, 319,
324, 332 and 333 of the Communications Act of 1934, 47 U.S.C. 151, 152,
154(i), 157, 160, 201, 214, 251(e), 301, 302, 303, 307(b), 308, 309(j),
310, 319, 324, 332, 333, that this Notice of Proposed Rulemaking is
hereby adopted.
105. It is further ordered that the Commission's Consumer and
Governmental Affairs Bureau, Reference Information Center, shall send a
copy of this Notice of Proposed Rulemaking, including the Initial
Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of
the Small Business Administration.
106. It is further ordered that pursuant to applicable procedures
set forth in Sec. Sec. 1.415 and 1.419 of the Commission's rules, 47
CFR 1.415, 1.419, interested parties may file comments on this Notice
of Proposed Rulemaking on or before May 19, 2011, and reply comments on
or before June 20, 2011.
List of Subjects in 47 CFR Part 1
Practice and procedures, Reporting and recordkeeping requirements,
Tribal lands spectrum utilization programs, Telecommunications,
Competitive bidding.
Federal Communications Commission.
Bulah Wheeler,
Deputy Manager.
Proposed Rules
For the reasons discussed in the preamble, the Federal
Communications Commission proposes to amend 47 CFR part 1 to read as
follows:
PART 1--PRACTICE AND PROCEDURE
1. The authority citation for part 1 continues to read as follows:
Authority: 15 U.S.C. 79 et seq.; 47 U.S.C. 151, 154(j), 160,
201, 225, 303, and 309.
2. Add a new undesignated center heading and Sec. Sec. 1.1001
through 1.1004 to Subpart F to read as follows:
* * * * *
Tribal Lands Spectrum Utilization Programs
Sec.
1.1001 Introduction.
1.1002 Definitions.
1.1003 Tribal Licensing Priority.
1.1004 Tribal Lands Construction Safe Harbor.
Sec. 1.1001 Introduction.
The purpose of these rules is to improve the availability of
wireless communications services on unserved and underserved Tribal
lands by promoting greater use of spectrum over Tribal lands.
Sec. 1.1002 Definitions.
(a) Qualifying Tribal entity. For the purposes of this subpart any
of the following entities, as further explained below, may be
designated as a qualifying Tribal entity:
(1) a Tribe;
(2) a Tribal consortium; or,
(3) an entity that is more than 50 percent owned and controlled by
a Tribe or Tribes, provided that such entity is designated by the
Tribal government or governments having jurisdiction over particular
Tribal land and for which the spectrum access is sought.
(b) Tribe. Tribe(s) means any American Indian Tribe, Nation, Band,
Pueblo, or Community, or Alaska Native Village, which is acknowledged
by the federal government to have a government-to-government
relationship with the United States and eligible for the programs and
services established by the United States for Indians.
(c) Tribal consortium. A tribal consortium is a conglomerate
organization composed of two or more Tribes, or a Tribe together with
an entity that is more than 50 percent owned and controlled by a Tribe
or Tribes, as defined herein.
(d) Entities that are more than 50 percent owned and controlled by
a Tribe or Tribes. For purposes of this subpart, an entity will be
considered to be more than 50 percent owned and controlled by a Tribe
or Tribes where the Tribe or Tribes have both de jure and de facto
control of the entity. De jure control of an entity is evidenced by
ownership of greater than 50 percent of the voting stock of a
corporation, or in the case of a partnership, general partnership
interests. De facto control of an entity is determined on a case-by-
case basis. A Tribe or Tribes must demonstrate at least the following
indicia of control to establish that it retains de facto control of the
applicant seeking eligibility as a qualifying Tribal entity:
(1) The Tribe(s) constitutes or appoints more than 50 percent of
the board of directors or management committee of the entity;
(2) The Tribe(s) has authority to appoint, promote, demote, and
fire senior executives that control the day to day activities of the
entity;
(3) The Tribe(s) plays an integral role in the management decisions
of the entity; and
(4) The Tribe(s) has the authority to make decisions or otherwise
engage in practices or activities that determine or significantly
influence:
(i) the nature or types of services offered by such an entity;
(ii) the terms upon which such services are offered; or
(iii) the prices charged for such services.
(e) An applicant seeking eligibility to be a qualifying Tribal
entity must describe on its long-form application how it satisfies the
requirements of Sec. 1.1002(b) through (d), and must list and
summarize on its long-form application all agreements that affect its
[[Page 18490]]
eligibility such as partnership agreements, shareholder agreements,
management agreements, spectrum leasing arrangements, and all other
agreements, including oral agreements, establishing de facto and de
jure control of the qualifying Tribal entity. A qualifying Tribal
entity also must provide the date(s) on which each of the agreements
listed was entered into.
(f) An applicant seeking eligibility as a qualifying Tribal entity
must attach with its long-form application a certification from the
Tribal government stating that the applicant is authorized by the
Tribal government to site facilities and provide service on its Tribal
lands.
(g) Tribal land(s). Any federally recognized Indian tribe's
reservation, Pueblo, or Colony, including former reservations in
Oklahoma, Alaska Native regions established pursuant to the Alaska
Native Claims Settlement Act (85 Stat. 688), and Indian allotments.
(h) Unserved and/or underserved Tribal land(s). Those Tribal lands
with Wireless Radio Services coverage to no more than 65 percent of the
population of the Tribal land area based on the most recently available
U.S. Census Data.
Sec. 1.1003 Tribal Licensing Priority.
During a window announced by the Commission for the filing of
applications for a Tribal licensing priority, a qualifying Tribal
entity having jurisdiction over unserved or underserved Tribal lands
within the geographic area of a Wireless Radio Service license that has
not been assigned, may submit a long-form license application for an
authorization to use the Tribal land portion of that license. In the
event that license applications filed by qualifying Tribal entities are
mutually exclusive, the Commission will resolve these mutually
exclusive applications by means of a competitive bidding process open
only to those qualifying Tribal entities.
Sec. 1.1004 Tribal Lands Construction Safe Harbor.
Satisfaction of Construction Requirements through Service to Tribal
Lands. A Wireless Radio Licensee with Tribal lands within the
geographic area of its license will be deemed to have satisfied its
construction obligations for its entire service area if it deploys
coverage to at least 75% of the geographic area of such Tribal lands.
[FR Doc. 2011-7825 Filed 4-1-11; 8:45 am]
BILLING CODE 6712-01-P