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Hobbs Straus attorneys successfully obtained the first Interior Board of Contract Appeals ruling entitling a tribal school to 100% of administrative cost grant funding in Alamo Navajo School Board and Miccosukee Corporation v. BIA, IBCA 3463-3466, IBCA 3560-3562 (Dec. 4, 1997).

GENERAL MEMORANDUM 11-046

GENERAL MEMORANDUM 11-046
Federal Communications Commission Proposals to Strengthen and Expand Broadband and Other Communications in Indian Country

The Federal Communications Commission (FCC), in a continuation of its initiatives in 2010, has proposed a series of actions to help strengthen and expand broadband and other communications services in Indian Country.

In 2010 these actions included tribal-specific recommendations in its National Broadband Plan, the issuance of a final rule for a Tribal Priority for Radio Service and the establishment of an Office of Native Affairs in the FCC. In the furtherance of its goal of universal broadband access and deployment, the FCC recently adopted three items to help identify and remove barriers to the deployment and adoption of communications services on or near tribal land.

Proposed Actions

Rural Radio. First, the FCC published a Second Notice in the March 16, 2011, FEDERAL REGISTER seeking comment on a proposed rule to Promote Rural Radio Service and to Streamline Allotment and Assignment Procedures. The proposed rule seeks to extend Tribal Priority for radio broadcast licensing for those tribes with very small, irregularly-shaped, or no land holdings. The rule proposes the use of threshold qualifications as an alternative to the Tribal Bidding Credit for tribes applying for commercial FM radio channel allotments. The notice also seeks further comment on ways to maximize the benefit of the Tribal Priority for tribal entities seeking FM commercial licenses. The deadline for submitting comments on the proposed rule is April 15, 2011 while reply comments may be filed on or before May 16, 2011.

The March 16 Federal Register notice may be downloaded at: http://edocket.access.gpo.gov/2011/pdf/2011-6146.pdf

Spectrum over Tribal Lands. The FCC has also published a Native Nations Spectrum Notice of Proposed Rulemaking in the April 4, 2011, FEDERAL REGISTER that proposes a new set of rules to promote the greater use of spectrum over tribal lands. The FCC seeks comment on five proposals geared toward improving access to mobile wireless connections on tribal land. These proposals include:

    • the expansion of the Tribal Priority to cover commercial wireless (in addition to commercial radio)
    • a secondary market negotiation process under which tribes could work with current wireless licensees to bargain in good faith for access to spectrum over unserved or underserved tribal lands
    • a process requiring licensees to build or divest unserved or underserved areas within its license area
    • a tribal lands construction safe harbor for wireless service providers
    • potential modifications to the FCC's current tribal lands bidding credit rules

The April 4 Federal Register notice may be downloaded at:
http://edocket.access.gpo.gov/2011/pdf/2011-7825.pdf

The deadline for commenting on the proposed spectrum rules is May 19, 2011.

Native Nations Wireless Notice of Inquiry (NOI). Finally, the Native Nations NOI, published in the April 5, 2011, FEDERAL REGISTER, seeks comment on a wide range of issues concerning how the FCC's rules and policies "could be modified to provide greater economic, market entry, communication adoption opportunities, and incentives for Native Nations." (See page 18759 of April 5, 2011, FEDERAL REGISTER notice.) In an effort to address the 68 percent telephone penetration rate and the less than 10 percent broadband penetration rate on tribal lands nationwide, the FCC requests input on issues including:

• sustainable broadband models for Native Nations
• funding needs for deployment, adoption, and digital literacy
• expansion of the Tribal Priority to cover such services as wireless, wireline, and satellite
• the extent to which persons with disabilities experience barriers in using communications services and technologies
• how to best structure a productive and efficient nation-to-nation consultation process between the FCC and the Native Nations

Recognizing that tribes may face additional communications challenges that the NOI does not cover, the FCC also issued a broader request for comment on "other matters involved in the provision of communications services to Native communities that may warrant future Commission action." (See page 18761 of April 5, 2011, FEDERAL REGISTER notice.)

The April 5 Federal Register notice may be downloaded at:
http://edocket.access.gpo.gov/2011/pdf/2011-7961.pdf

The deadline for submitting comments on the NOI is May 20, 2011.

FCC-Native Nations Broadband Task Force. FCC Chairman Julius Genachowksi has named 30 members to serve on the new FCC-Native Nations Task Force. The Task Force, comprised of elected and appointed leaders from across Indian Country and senior staff from the FCC, will assist the FCC in fulfilling its commitment to increase broadband deployment and adoption on tribal land. The following tribal representatives were named as members to the Task Force:

Honorable Susie Allen: Confederated Tribes of the Colville Reservation
Honorable Marlin Fryberg: Tulalip Tribes
Honorable Joe Garcia: Ohkay Owingeh Pueblo
Honorable Jeffrey Harjo: Seminole Nation of Oklahoma
Honorable Bradley John: Seneca Nation of Indians
Honorable Bill Kekahbah: Kaw Nation
Honorable Joseph Manuel: Gila River Indian Community
Honorable Jim Shakespeare: Northern Arapaho Tribe
Mark Bilton-Smith: Cow Creek Band of Umpqua Tribe of Indians
Lewis Christman: Tule River Indian Tribe
Valerie Fast Horse: Coeur d'Alene Tribe
Debby Gallenberg: Sokaogon Chippewa Community
Pearl Mikulski: Kawerak
Carroll Onsae: Hopi Tribe
Matthew Rantanen: Pala Band of Mission Indians
Brian Tagaban: Navajo Nation
Michael White: Iowa Tribe of Oklahoma
James Williams: Tanana Chiefs Conference
Michelle York: Mississippi Band of Choctaw Indians

The following FCC staff was named as members of the Task Force:

Geoffrey Blackwell: Office of Native Affairs and Policy
Irene Flannery: Consumer and Governmental Affairs Bureau
David Furth: Public Safety and Homeland Security Bureau
Jane Jackson: Wireless Telecommunications Bureau
Elise Kohn: Wireline Competition Bureau
Mark Lloyd: Office of General Counsel
Kris Monteith: Media Bureau
Robert Nelson: International Bureau
Jamison Prime: Office of Engineering and Technology
Thomas Reed: Office of Communications Business Opportunities
Suzanne Tetreault: Enforcement Bureau

Chairman Genachowski also named Geoffrey Blackwell as co-chairman. The Native Nations representatives will elect another co-chair from among those Native Nations members appointed. Task Force responsibilities include assisting in developing and executing an FCC consultation policy, eliciting input to ensure that Native concerns are considered in all FCC proceedings related to broadband, developing additional recommendations for promoting broadband deployment and adoption on tribal lands,
and coordinating with external entities, including other federal departments and agencies.

Senate Committee Hearing. On April 5, 2011, the Senate Committee on Commerce, Science and Transportation, held a hearing entitled Closing the Digital Divide: Connecting Native Nations and Communities to the 21st Century. Chaired by Senator Rockefeller (D-WV), the hearing focused on the need to expand communications infrastructure on tribal lands, including Alaska Native villages, and on Hawaiian Homelands. Senator Inouye (D-HI), a long time advocate for improved communications on Native lands, was active in the hearing. You may download testimony from the hearing at http://commerce.senate.gov/public.

Please let us know if we may provide additional information or assistance regarding the Federal Communications Commission's proposals or related matters.

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Inquiries may be directed to:
Karen Funk (kfunk@hobbsstraus.com)

Available Documents for Download ( any referenced attachments are included in download )


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