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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 16-039

General Memorandum 16-039
FCC Publishes Lifeline and Link Up Final Rule with Tribal Implications; Comment Period Remains Open for Certain Tribal-Specific Provisions and on Broadband Deployment in Indian Country Generally

On May 24, 2016, the Federal Communication Commission (FCC) published a Final Rule in the FEDERAL REGISTER amending 47 C.F.R. Part 54 which is intended to modernize and reform the Lifeline and Link Up programs. 81 Fed. Reg. 33026. The Final Rule shifts Lifeline from a program primarily focused on providing low-income consumers with access to voice service to a program primarily focused on providing low-income consumers with access to broadband service. The Final Rule is available at: https://www.gpo.gov/fdsys/pkg/FR-2016-05-24/pdf/2016-11284.pdf

Background. The FCC published its first Notice of Proposed Rulemaking (NPRM) on potential reform to the program on February 6, 2012, and a second NPRM on June 22, 2015. While the Final Rule addresses several of the tribal-specific issues raised in the proposed rule-makings, other more controversial tribal-specific issues remain "open for consideration in a future proceeding more comprehensively focused on advancing broadband deployment [on] Tribal Lands". This indicates an interest by the FCC in developing a comprehensive broadband deployment plan focused specifically on Indian Country – which is woefully behind even other rural communities in its ability to access broadband. The FCC was recently called before the Senate Committee on Indian Affairs (SCIA) in April, 2016, following the release of Government Accountability Office Report GAO-16-222 "Telecommunications: Additional Coordination and Performance Measurement Needed for High-Speed Internet Access Programs on Tribal Lands" . In the hearing, the SCIA examined the FCC's role in facilitating broadband deployment on tribal lands and directed the FCC to take additional actions to ensure tribal residents have access to broadband. The opportunity to provide comments on the open issues in the second NPRM remains open indefinitely and tribes and tribal organizations may want to submit comments encouraging the FCC to begin consultation on advancing comprehensive broadband deployment on tribal lands.

Eligibility. The Lifeline program provides a monthly discounted telephone bill to low-income consumers, including wireless cell phone service. The current Lifeline program offers a monthly discount of $9.25 per month for low-income individuals enrolled in the program, and low-income residents of tribal lands are eligible for an additional subsidy of up to $25.00 for a total discount of up to $34.25 per month ("enhanced Tribal subsidy"). This enhanced Tribal subsidy was adopted in 2000 in recognition of disparate rates of telephone and wireless cell phone service on tribal lands. To qualify for the Lifeline program, a tribal participant must be at or below of 135 percent of the Federal Poverty Guidelines or eligible for participation in designated Tribal, Federal or State assistance programs.

In its second NPRM, the FCC requested comments on which federal assistance programs it should continue to use to qualify low-income consumers for Lifeline. If a consumer qualifies for one of those programs and resides on Indian lands, they are also eligible for the enhanced Tribal subsidy. The National Congress of American Indians strongly recommended that the FCC retain the current list of eligible programs for low-income residents of tribal lands. The FCC accepted that recommendation. One of the more controversial issues held over for additional comments is a proposal limiting eligibility for the enhanced Tribal subsidy to tribal residents of counties with less than 15 people per square mile. This would have severely impacted tribal residents in states like Oklahoma and other tribes located anywhere but in a severely rural area. This proposal was met with stiff tribal opposition and the FCC is still accepting comments on this issue.

Currently, Lifeline providers are required to determine subscriber eligibility for Lifeline. However, the FCC, concerned with the potential for waste, fraud and abuse, included in the Final Rule the creation of a "National Verifier" system. This system is intended to eliminate administrative and compliance costs for providers by instead placing the responsibility and risk of verifying subscriber eligibility in the hands of the Universal Service Administrative Corporation (USAC) (with oversight by the Universal Consumer and Governmental Affairs Bureau). Potential subscribers must demonstrate eligibility for the Lifeline program by showing proof of eligibility or enrollment in eligible federal and tribal programs. The Final Rule directs USAC to work closely with tribes to develop "the most efficient pathways to determining subscriber eligibility"; allows tribal documents to be used as proof of eligibility; and provides tribes with access to the National Verifier database.

Incentives for Participation. In an effort to increase the number of carriers and incentivize providers to offer better quality services, the Final Rule creates a streamlined Lifeline Broadband Provider Eligible Telecommunications Carrier (ETC) Designation Process. A broadband provider's petition for ETC designation as a Lifeline Broadband Provider will be subject to a 60-day review and approval instead of 6-month review and approval so long as they meet certain criteria demonstrating financially stability and experience providing broadband services. Importantly, the Final Rule exempts tribally-owned and -controlled facilities that provide services on tribal lands from the experience requirement. This creates the opportunity for a tribe to create a tribally-owned telecommunication company to provide these and other telecommunications services to its residents.

Better Understanding Barriers to Inclusion. Of additional note, the Final Rule directs the Consumer and Governmental Affairs Bureau to develop a comprehensive plan to better understand the non-price barriers to digital inclusion for consumers, including residents of tribal lands; directs USAC to make information on the number of tribal consumers receiving the enhanced Tribal subsidy publicly available; and allows residents of the "Cherokee outlet" to remain eligible for the enhanced Tribal subsidy.

Please let us know if we may provide additional information regarding this Final Rule, the Lifeline program or assistance drafting comments to the FCC on the outstanding tribal issues and on broadband deployment in Indian Country generally.

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Inquiries may be directed to:
Lael Echo-Hawk (lecho-hawk@hobbsstraus.com)

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


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