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Hobbs Straus successfully defended a former casino workers’ suit against a Tribe in a Tenth Circuit case finding absence of federal jurisdiction over non-Indian contract and tort disputes arising in Indian country. (2009)

General Memorandum 13-082

General Memorandum 13-082
$50 Million Available in FCC Tribal Mobility Fund Auction

On September 16, 2013, the Federal Communications Commission (FCC) published a notice in the FEDERAL REGISTER announcing a reverse auction through which the FCC will award up to $50 million to telecommunications carriers to support the expansion of mobile services on Tribal lands. 78 Fed. Reg. 56875, available at http://www.gpo.gov/fdsys/pkg/FR-2013-09-16/pdf/2013-22483.pdf. The auction is scheduled for December 19, 2013, but carriers that choose to participate in the auction are required to file a short-form application by October 9, 2013.

For decades, the FCC has administered a Universal Service Fund to support telephone service in high-cost areas. In 2011, the FCC issued the USF/ICC Transformation Order, which made comprehensive changes in the Universal Service Fund to include support for the expansion of mobile services (voice and broadband) into areas that lack such services. 76 Fed. Reg. 73830 (Nov. 29, 2011); 76 Fed. Reg. 81562 (Dec. 2011). As explained in the FEDERAL REGISTER notice, the Mobility Fund is a universal service support mechanism dedicated to expanding mobile services. The Tribal Mobility Fund Phase I is a one-time allocation of $50 million to support "the buildout of current- and next-generation mobile networks on Tribal lands where these networks are not available." The goal is to extend the availability of networks that provide 3G or better performance and to "accelerate the deployment of 4G wireless networks where it is cost-effective to do so with one-time support."

This auction is designated as Auction 902. Detailed information is contained in the Auction 902 Procedures Public Notice, which was released by the FCC on August 7, 2013, available at http://wireless.fcc.gov/auctions/902. That website also includes a tutorial that explains the auction process, as well as an interactive map that identifies areas of Tribal lands that are eligible for the auction. As defined by the FCC, "Tribal lands" include the reservations of every federally recognized Indian tribe, former reservations in Oklahoma, Alaska Native regions established by the Alaska Native Claims Settlement Act, Indian allotments, and Hawaiian Home Lands. In determining whether any particular area of Tribal lands is eligible for Tribal Mobility Fund Phase I support, the FCC analyzed census blocks within Tribal lands and determined whether there currently is 3G or better service at the geometric center of the block (using January 2013 data). If such service is not available at that point, the FCC concluded that the census block is not served and, as such, is eligible.

In order to participate in the auction, an applicant must be designated as an "eligible telecommunications carrier" (ETC) for the area on which it wants to bid, although there is an exception of sorts for entities that are Tribally-owned or -controlled. Such an entity need not have been formally designated as an ETC, but it does need to have an application for ETC designation pending as of the deadline for the short-form application, i.e., October 9, 2013. The process for applying for designation as an ETC is summarized in the FEDERAL REGISTER notice, at pages 56879-80. Briefly, if an entity is subject to the jurisdiction of a state regulatory commission, it should seek designation from that state commission. If it is not subject to state jurisdiction, it must apply to the FCC. Guidance on the requirements for applying to the FCC for designation as an ETC may be found in a FEDERAL REGISTER notice published on March 8, 2012. 77 Fed. Reg. 1401, available at http://www.gpo.gov/fdsys/pkg/FR-2012-03-08/pdf/2012-5594.pdf.

Any Tribally-owned or controlled carrier that participates in Auction 902 will be given a 25 percent reverse bidding credit, which will have the effect of reducing the entity's bid by 25 percent for the purpose of comparing it to other bids. (In a reverse auction, the lowest bid is the winner.) The reason for this bidding credit is the recognition of the Tribes' interest in self-government.

After the auction takes place, each winning bidder will be required to file a long-form application. At that point in the process, and continuing as long as support from the Tribal Mobility Fund is provided, each winning bidder will be required to comply with the "Tribal engagement obligations" applicable to all ETCs. As noted in the FEDERAL REGISTER notice (at 56893), and as discussed in detail in the USF/ICC Transformation Order, "these obligations are designed to ensure that Tribal governments have been formally and effectively engaged in the planning process and that the services to be provided will advance the goals established by the Tribal government." Thus, the FCC encourages applicants seeking to serve Tribal lands to "begin engaging with the appropriate Tribal governments as soon as possible." As summarized in the FEDERAL REGISTER notice"

A winning bidder's engagement with the appropriate Tribal government(s) must consist, at a minimum, of discussion regarding: (i) A needs assessment and deployment planning with a focus on Tribal community anchor institutions; (ii) feasibility and sustainability planning; (iii) marketing services in a culturally sensitive manner; (iv) rights of way processes, land use permitting, facilities siting, environmental and cultural preservation review processes; and (v) compliance with Tribal business and licensing requirements.

If we may be of further assistance regarding the Tribal Mobility Fund, please contact us at the information below.

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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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