Tribal Broadband and Indian Preference
On June 28, President Obama signed an executive memorandum which commits the government to expand the amount of broadband spectrum available for wireless communications. This follows on the release of the National Broadband Plan by the Federal Communications Commission and the Department of Commerce earlier this spring. The Plan will serve as the basis for the continued development and expansion of wireless communications. The F.C.C. issued action items within the National Broadband Plan which calls for the availability of 500 MHz of spectrum for broadband use within the next ten years. Approximately 300 MHz of the 500 MHz is in the high value spectrum between 225 MHz and 3.7 GHz where mobile use is prevalent. The time frame for making the high value spectrum available for commercial use is within the next five years.
Tribal economies are becoming increasingly dependent upon access to wireless communications such as cellular phones and wireless internet connectionsfor daily business operations. Greater access to broadband spectrum will be essential in providing more avenues for business transactions and economic growth. Wireless communication and internet service providers profit from broadband spectrum as it determines the rates which they can impose upon customers.
Currently, the National Broadband Plan allows for the creation of a Native Nations Broadband Task Force, Office of Native American Affairs, and an increase in mobile communication opportunities within tribal communities. Both this Plan and the Communications Act lack a clear and defined strategy to develop broadband capabilities within tribal communities. One way for tribal entities to increase their bidding power is by utilizing the Tribal Lands Bidding Credits available to them. This tool grants significant discounts to companies bidding on radio spectrum who will be providing improved telecommunications. Without more credits, however, the level of broadband penetration within tribal communities will likely fall by the wayside similar to the manner in which telephone service failed to reach a majority of Native American people. Tribal governments and tribal entrepreneurs have an opportunity here to persuade Congress to adopt tribal prerogatives when it comes to the development and expansion of broadband. The Plan will inevitably be considered by Congress in the near future and tribal broadband advocates should be in a position to influence future legislation. It may be advantageous for tribal governments and tribal entrepreneurs to advance the position that the F.C.C. should make certain spectrum available for sole source bidding by tribal governments and small and disadvantaged business concerns. This position would be similar to preferences in contracting awarded under the Section 8a program.
While consultation with the F.C.C. regarding the Plan is an aspirational goal, the compressed time frame for the auctioning of high value spectrum will force tribal governments and tribal entrepreneurs to bid on spectrum without the F.C.C. having had ample time to develop a clear and defined policy under the Plan for Native Americans. When it comes to the regulation of broadband and net neutrality, tribes should be wary of the F.C.C. overreaching its regulatory authority. In the Comcast v. F.C.C. decision, the court of appeals held that the F.C.C. lacked the ancillary jurisdiction to regulate and impose punitive measures upon an internet service provider when it engages in network management over internet communications. Therefore, logic dictates that tribal governments and tribal entrepreneurs are the most informed and best suited advocates for the use of broadband spectrum within tribal communities.
