On Sept. 18, 2019, the Senate Committee on Indian Affairs held a hearing on tribal access to spectrum. Spectrum are slices of airwaves used to send signals to wireless devices like smartphones. One of the key messages was that tribes should take advantage of an opportunity coming in early 2020 to gain free access to certain wireless airwaves. Access to spectrum can play a crucial role in expanding the availability of broadband services to tribal lands. The purpose of the hearing was to review recommendations made late last year by the Government Accountability Office (“GAO”) on steps that the Federal Communications Commission (“FCC”) could take to promote tribal access to spectrum. The GAO report can be found here.
Obtaining Access to Licensed Spectrum
Wireless services can be used to provide broadband internet access as well as to make calls or send texts, and the deployment of wireless networks can be much cheaper than laying miles of fiber, especially to remote and sparsely populated areas. One way to access spectrum is by obtaining a license, which gives the license owner the right of exclusive use of spectrum over a defined area. The exclusive use of spectrum protects the license owner from interference from other wireless networks and enables the owner to sell part of the license to someone else. Some spectrum is also available on an unlicensed basis, meaning the spectrum can be used by anyone using appropriate equipment, but there is no protection against interference. Wi-Fi is a prime example of using unlicensed spectrum for broadband access.
Licenses are obtained in two primary ways. The FCC holds auctions for licenses, but tribes may not have the resources to outbid wireless companies or other investors, even with bidding credits that can be used by tribes to reduce the cost of the license. Often, entities that win a license that includes tribal lands don’t build out to those areas. The other way to obtain licenses is in the so-called secondary market, where license owners agree to sell some or part their right to use spectrum. This too has proven challenging for tribes. The key problem is obtaining information on who holds licenses for spectrum over tribal lands. Also, tribes may simply be unaware that a secondary market for spectrum exists or license owners may be unwilling to sell to tribes. Obtaining a license under either approach can require navigating through a daunting maze of regulations.
The GAO’s Findings and Recommendations on Spectrum Access by Tribal Entities
The GAO report found that tribes hold only about 18 of the tens of thousands of wireless licenses and that the “FCC’s efforts to promote and support tribal entities’ access to spectrum had done little to increase tribal use of spectrum.” Among its findings was that the FCC did not analyze the extent of unused licensed spectrum over tribal lands that might be available on the secondary market and that it failed to communicate information to tribes. This led the GAO to make the following three recommendations in its November 2018 report: (1) the FCC should collect data on the extent that tribal entities are obtaining and accessing spectrum and use this data to inform ongoing spectrum initiatives; (2) the FCC should analyze information to better understand the extent to which unused spectrum licenses exist over tribal lands; and (3) the FCC should make information on spectrum-license holders more accessible and easy to understand. The FCC agreed with these recommendations.
Actions Taken by the FCC
Testifying before the committee, the chief of the FCC’s wireless bureau emphasized the importance of enhancing broadband access in tribal areas. And here is where the free spectrum comes in. He highlighted that the FCC has established a priority window during which entities can apply to obtain access to certain spectrum (the 2.5 GHz band) for free to provide wireless broadband services, such as 5G wireless services, in rural tribal areas. This so-called mid-band spectrum is valuable because it can both cover large areas and has sufficient capacity to allow very fast connections. (We previously provided information about this spectrum opportunity). The window will open early next year. Although some concerns were expressed about certain conditions around this opportunity, both panelists and senators emphasized the need to publicize the availability of this spectrum and encouraged all tribes to investigate applying. The FCC will be conducting workshops and other outreach to guide interested parties in how to apply. Information about FCC workshops can be found on the agency’s Office of Native Affairs and Policy website.
The FCC also recognized that tribal entities could benefit from better access to information. The agency stated that it is taking action on the specific recommendations in the GAO report. It is working to obtain a better understanding of the extent of licensing participation by tribes, developing a sample of spectrum licenses to assess availability of unused licenses over tribal lands, and is in the process of modernizing its massive database of licensing information to make it more accessible and user-friendly.
Tribes should assess whether to apply for access to the 2.5 GHz spectrum in the upcoming priority window and other upcoming spectrum opportunities, and continue to push for more information on the availability of unused licensed spectrum over their lands. Members of Brownstein’s American Indian Law and Policy Group stand ready to assist tribal entities in these endeavors.
This document is intended to provide you with general information regarding the FCC’s efforts to provide access to certain airwaves to American Indian tribes. 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.