FCC Sets Aside Airwaves for Rural Tribal Areas

The Federal Communications Commission (FCC) has released an order making available certain airwaves for broadband wireless services on rural tribal lands. These airwaves, in the 2.5 GHz spectrum band, were previously set aside for educational institutions and educational purposes, although these institutions were authorized to lease the airwaves to wireless providers. The FCC eliminates the educational use requirements and will auction off portions of the airwaves not currently under license or lease—so-called white spaces. Before the auction, however, the FCC will provide tribes a special opportunity to seek licenses to cover rural tribal areas by opening a tribal priority window for filing license applications.

Tribal Priority Window

The tribal priority filing window will allow federally recognized American Indian Tribes and Alaska Native Villages, and communications providers and other entities that are owned and controlled by them, to obtain licenses for all available, unassigned 2.5 GHz spectrum on their tribal lands. Only rural tribal areas are eligible for these licenses. Tribal lands will be considered rural if they are not part of an urbanized area or urban cluster with a population of 50,000 or more. The purpose of the priority filing window is to “provide broadband access to Tribal lands that historically have been unserved or underserved.” The licenses may cover off-reservation lands if they have already been designated as tribal lands pursuant to the FCC’s universal service regulations. Tribes, however, cannot interfere with any existing 2.5 GHz license that may cover a portion of the tribal lands, but to the extent an existing license is cancelled or terminated, the spectrum under that license will revert to the tribe.

Tribes will be allowed to lease their spectrum to third parties as a way to facilitate network development or to raise revenue. Tribes, however, may not transfer or assign their licenses until they have met their buildout requirements. Tribes that gain new licenses will be subject to the following timeline and performance metrics for deploying networks: (1) 80% population coverage for mobile and point-to-multipoint services (50% interim); or (2) one link per 25,000 people for fixed point-to-point service (one link per 50,000 interim). Tribes must demonstrate compliance with the interim buildout levels after two years, and the final buildout requirement after five years. If the interim deadline is missed, the final deadline will be accelerated by one year.

Next Steps

The FCC’s wireless telecommunications bureau will announce specific procedures for the tribal priority filing window, including the time period for the window, through one or more upcoming public notices. Only license applications filed during the window will be accepted.

This document is intended to provide you with general information regarding an Federal Communications Commission order that makes available certain airwaves for broadband wireless services on rural tribal lands. The contents of this document are not intended to provide specific legal advice. If you have any questions about the contents of this document or if you need legal advice as to an issue, please contact the attorneys listed or your regular Brownstein Hyatt Farber Schreck, LLP attorney. This communication may be considered advertising in some jurisdictions.