Commentary: Tribes Have Chance to Control Spectrum, Build Broadband Networks

Article 16 of the United Nations Declaration on the Rights of Indigenous Peoples affirms the right of “Indigenous peoples . . . to establish their own media in their own languages[.]” Designing broadband networks grounded on the principles of tribal sovereignty and self-determination is an important component of establishing indigenous-owned and driven media.

Tribes and indigenous peoples in the United States have long taken on the challenge to build broadband networks and creatively use resources to bring internet service to their communities. For example, there are over a dozen tribally owned telecommunications providers. A U.S. Government Accountability Office report found that various tribes also collaborate with private telephone and internet providers, non-profits, and electric cooperatives, or set up regional consortium agreements to extend internet service in their lands.

Now, a federal initiative can enhance the important work tribes have advanced, and hopefully, improve the chances for all 574 federally-recognized tribes to establish their own internet networks and build a digital future on their own terms.

What Is the 2.5 GHz Rural Tribal Priority Window?

From February 3 to August 3, 2020, federally recognized tribes, Alaska Native Villages, and certain qualifying entities can apply for a license to control the unlicensed spectrum in the 2.5 GHz Band over their tribal lands. Eligible parties must submit an application for the license with the Federal Communications Commission. If a tribe or eligible party does not claim the spectrum license, it will be auctioned to the highest bidder.

What Is a Spectrum License and Why Would a Tribe Want One?

Spectrum, or the airwaves, is the lifeblood of modern wireless communications networks. Wireless communication signals such as your favorite radio program, a cellphone call, or your local nightly news, travel over the air. A spectrum license allows a licensee to use the airwaves. To obtain a license, an entity must typically participate in an auction and outbid other telecommunications companies. Participation in spectrum auctions is costly, and auctions can raise millions and even billions of dollars in funds for the Federal Treasury. The 2.5 GHz Rural Tribal Window allows a tribe to claim the license for the airwaves over their own lands without having to go through an auction.

A spectrum license is a valuable asset that can bring economic development opportunities for tribes. With this license, tribes can set up their own wireless networks and provide service to their residents free of charge or even establish their own internet service company. In addition, the license can be leased to third-parties as there is a thriving market for spectrum leasing and subleasing.

Importantly, the 2.5 GHz license grants the licensee exclusive use of the airwaves over the license area. This means that a tribe would be able to use and control a portion of the airwaves over their lands, and such control can support tribal self-determination in the digital age.

What Are the Eligibility Requirements?

First, an applicant must be 1) a federally-recognized tribe or Alaska Native Village, 2) a consortium of federally-recognized tribes or Alaska Native Villages, or 3) an entity majority-owned and controlled by a federally-recognized tribe or Alaska Native Village.

Second, an applicant must request a license over rural, tribal land. For this proceeding, the FCC defined rural as areas with a population of less than 50,000. The FCC defined tribal lands as a federally recognized tribe’s reservation, pueblo or colony, Alaska Native regions, former reservations in Oklahoma, and Hawaiian Home Lands – one of its Universal Service Fund definitions. To see the tribal lands that the FCC recognizes for this licensing initiative, check the maps the agency created.

Third, the applicant must demonstrate that it has “local presence” throughout the tribal land for which it is applying, describe the nature of the presence, and prove it is physically located on the tribal land.

And, fourth, there must be unlicensed spectrum in the 2.5 GHz band available over the land where the applicant wants a license. Unlicensed spectrum means airwaves not licensed to another. Unfortunately, if another entity already holds a license for control of the 2.5 GHz airwaves over a tribal land, an applicant that is otherwise eligible will not be able to get a license for those airwaves.

Learn more about the eligibility requirements in the FCC’s Procedures Notice for the Window.

Watch out for Mutually Exclusive Applications

In some cases, there will be more than one party eligible to apply for the same license. For example, if a tribe has a business that is majority-owned by the tribe, both the tribe and the business could apply. A mutually exclusive application is when two or more entities apply for the same license. The FCC is required by law to resolve mutually exclusive applications through an auction. After the application period closes, the FCC will establish a 90-day settlement period where mutually exclusive applications can be resolved. If applicants do not reach a resolution, they will have to bid against each other in a closed auction. Talk to your neighbors to avoid mutual exclusivity.

What Are the Requirements to Keep the License?

Applicants that are awarded a license must meet certain build-out requirements, depending on the technology they use, in order to keep the license. Generally, the licensee must cover 50% of the population in the license area by Year 2, and 80% of the population in the license area by Year 5. However, applicants do not need to provide a build-out plan at the time of applying, and an applicant that obtains a license can work with others, such as an internet service provider, to meet the build-out requirements for its license. Finally, although there is no monetary penalty for failing to meet the build-out requirements, a licensee can lose the license.

A New Digital Future

I write about this initiative because I am an attorney committed to supporting indigenous leadership and underrepresented communities in telecommunications law. My previous work at the Center for Rural Strategies inspired me to become an attorney. I directed the Rural Broadband Policy Group – a national coalition of rural organizations advocating for access to affordable, reliable, and high-speed broadband, and we helped rural communities participate in telecommunications proceedings at the FCC. Because rural and tribal communities face similar challenges, our advocacy always took into consideration the unique circumstances Native communities face.

As an ally, I am excited to see how tribes operationalize this license to support indigenous languages, cultures, governance, and economies. Imagine indigenous languages as the foundation to develop new coding languages. Imagine tribal governments extending their services online and supporting indigenous digital entrepreneurship. Imagine wireless networks that affirm tribal self-determination.

I believe that indigenous knowledge will propel a better future for our global telecommunications ecosystem. The 2.5 GHz Rural Tribal Window is an opportunity for a digital future shaped by indigenous principles and leadership. This is an opportunity for indigenous wireless networks. Building a wireless network starts with one small license. This is the opportunity to get that license.

Attorney Edyael Casaperalta is from Texas and currently lives in Colorado. She is former director of broadband policy and outreach for the Center for Rural Strategies, which publishes the Daily Yonder.