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Hobbs Straus attorneys have assisted several tribes and tribal organizations to obtain Section 8(a) certifications for tribally-owned companies.

General Memorandum 12-081

General Memorandum 12-081
Executive Order on Accelerating Broadband Infrastructure Deployment

On June 14, 2012, President Obama signed Executive Order 13616, Accelerating Broadband Infrastructure Deployment. 77 Fed. Reg. 36903 (June 20, 2012) (attached). The intent of this Order is to facilitate broadband deployment on federal lands, buildings, rights of way, federally assisted highways, and tribal and individual Indian trust land.

The policy section of the Order stresses the importance of access to broadband for the Nation's global competitiveness, including creation of jobs and expansion of markets for American businesses. Acknowledging that "too many areas still lack access to this crucial resource," the Order states, "decisions on access to Federal property and rights of way can be essential to the deployment of both wired and wireless broadband infrastructure." The basic thrust of the Order is to direct federal agencies to become more efficient and coordinated in their procedures for making decisions about the use of federal property for broadband infrastructure.

Section 2 of the Order establishes a "Broadband on Federal Property Working Group" (Working Group), with one representative each from six federal departments (including the Department of the Interior), Postal Service, Federal Communications Commission, Council on Environmental Quality, Advisory Council on Historic Preservation, and National Security Staff. The Working Group will be co-chaired by representatives designated by the Administrator of General Services and the Secretary of Homeland Security. The Co-Chairs may add to the Working Group by inviting representatives of other federal agencies and offices. In light of the inclusion of Indian trust lands in the scope of the Working Group's mandate, it might be advisable for the Working Group to include a representative of the Bureau of Indian Affairs (BIA).

Section 3 of the Order directs agencies that are a member of the Working Group to coordinate among themselves and "develop and implement a strategy to facilitate the timely and efficient deployment of broadband facilities." Each agency's strategy is supposed to ensure a "consistent approach across the Federal Government" with coordinated review processes; avoidance of duplicative reviews; clear notice of all requirements; and consistent application of procedures, requirements, and policies. With respect to deployment of broadband service on tribal lands, the strategy must support decisions that are "consistent with existing statutes, treaties, and trust responsibilities." We note that, in addition to the interests that tribes may have regarding tribal lands, tribes may also have concerns with the strategy to expedite review processes, since review under the National Environmental Policy Act and National Historic Preservation Act provides procedural opportunities for tribes to advocate for the protection of tribal interests outside reservation boundaries.

Section 4 of the Order directs agencies to develop "templates for uniform contract, application, and permit terms to facilitate nongovernment entities' use of Federal property for the deployment of broadband facilities." This section does not appear to be applicable to tribal lands.

Section 5 of the Order addresses "Deployment of Conduit for Broadband Facilities in Conjunction with Federal or Federally Assisted Highway Construction." This section promotes the use of "dig once requirements," a concept that seeks to reduce the number and scale of excavations in rights of way. Subsection (a)(iii) directs the Department of the Interior and other agencies dealing with tribal lands to review their procedures, requirements, and policies to promote the dig once concept.

In addition to the Executive Order, the Administration also announced the formation of a new nonprofit partnership, the US Ignite Partnership (us-ignite.org), with a mission to catalyze advanced, next-generation applications to operate on broadband networks in six national priority areas: education and workforce development; advanced manufacturing; health; transportation; public safety; and clean energy. This new partnership is described in the press release captioned, "We Can't Wait: President Obama Signs Executive Order to Make Broadband Construction Faster and Cheaper" (June 13, 2012) (available at www.whitehouse.gov). That press release includes a link to a fact sheet captioned "Bolstering High-Speed Broadband to Boost the Economy."

Please let us know if we may provide additional information about Executive Order 13616 or related initiatives on the deployment of high-speed broadband.

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Inquiries may be directed to:
Dean Suagee (dsuagee@hobbsstraus.com)

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


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