Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the matter of                 | *  | CC Docket No. 96-45          |
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| Western Wireless Corporation     | ** |                              |
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| Petition for Designation as an   | *  |                              |
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| Eligible Telecommunications      | ** |                              |
| Carrier for the                  |    |                              |
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| Pine Ridge Reservation in South  | *) |                              |
| Dakota                           | ** |                              |
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| Federal-State Joint Board on     | *  |                              |
| Universal Service                | *) |                              |
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**MEMORANDUM OPINION AND ORDER**

**Adopted: September 27, 2001 Released: October 5, 2001**

By the Commission: Commissioner Martin dissenting and issuing a
statement.

# INTRODUCTION

1.  Section 214(e) of the Communications Act (Act) sets forth the
    requirements for telecommunications carriers to be eligible for
    federal universal service support and provides for state and federal
    authority to determine whether carriers meet these eligibility
    requirements. In this Order, we undertake a jurisdictional analysis
    to determine whether the FCC or the South Dakota Public Utilities
    Commission (South Dakota PUC) should decide whether Western Wireless
    is eligible to receive federal universal service support for
    providing telephone service to residents of the Pine Ridge
    Reservation (Reservation) in South Dakota. After reviewing federal
    Indian law and the specific facts in this case, we conclude that the
    FCC should make the eligible telecommunications carrier (ETC)
    determination for Western Wireless' provision of service to members
    of the Oglala Sioux Tribe on the Reservation, and the South Dakota
    PUC should do so for provision of service to non-tribal members on
    the Reservation. In a separate companion order, we designate Western
    Wireless to be an ETC to serve the tribal population on the Pine
    Ridge Reservation.

# Background

**A. The Communications Act**

2.  Section 254(e) of the Act states, in relevant part, that "only an
    eligible telecommunications carrier designated under section 214(e)
    shall be eligible to receive specific Federal universal service
    support."[^1] Section 214(e)(1) sets forth the requirements for ETC
    designation. Section 214(e)(2) provides for state commission
    designation of ETC carriers:

> A State commission shall upon its own motion or upon request designate
> a common carrier that meets the requirements of \[section 214(e)(1)\]
> as an eligible telecommunications carrier for a service area
> designated by the State commission. Upon request and consistent with
> the public interest, convenience, and necessity, the State commission
> may, in the case of an area served by a rural telephone company, and
> shall, in the case of all other areas, designate more than one common
> carrier as an eligible telecommunications carrier for a service area
> designated by the State commission, so long as each additional
> requesting carrier meets the requirements of \[section
> 214(e)(1)\].[^2]

3.  When Congress first enacted section 214(e) in 1996, the statute
    contained no provision for designation of carriers that were not
    subject to the jurisdiction of a state commission. As a result, such
    carriers, "most notably, some carriers owned or controlled by native
    Americans," had no access to a forum in which they could obtain a
    determination whether they met the requirements of section
    214(e)(1).[^3] As a result, these carriers would have become
    ineligible for universal service support as of January 1, 1998, when
    the eligibility requirements of the Act became effective. In 1997,
    Congress amended the Act with the addition of section 214(e)(6) to
    correct this "oversight."[^4] Section 214(e)(6) states that:

    In the case of a common carrier providing telephone exchange service
    and exchange access that is not subject to the jurisdiction of a
    State commission, the \[FCC\] shall upon request designate such a
    common carrier that meets the requirements of \[section 214(e)(1)\]
    as an eligible telecommunications carrier for a service area
    designated by the \[FCC\] consistent with applicable Federal and
    State law. Upon request and consistent with the public interest,
    convenience and necessity, the \[FCC\] may, with respect to an area
    served by a rural telephone company, and shall, in the case of all
    other areas, designate more than one common carrier as an eligible
    telecommunications carrier for a service area designated under
    \[section 214(e)(6)\], so long as each additional requesting carrier
    meets the requirements of \[section 214(e)(1)\].[^5]

    **B. The *Universal Service Twelfth Report and Order***

4.  As set forth above, the Act requires the FCC to determine a
    carrier's eligibility to receive universal service funds when a
    state lacks jurisdiction. The Act does not provide any guidance,
    however, on how to determine whether a state commission lacks
    jurisdiction, who makes the determination, or what to do if two
    entities (*e.g.,* a state and a tribe) both assert jurisdiction over
    the same telecommunications carrier. In order to fill this gap in
    the statute, the FCC set forth a procedure in the *Universal Service
    Twelfth Report and Order*, which permits carriers serving tribal
    lands to petition the FCC for a determination on the jurisdictional
    question \-- *i.e.,* whether the state or the FCC will determine the
    carrier's eligibility for universal service funds.[^6]

5.  Once a carrier files with the FCC a petition seeking ETC designation
    for service provided on tribal lands, we undertake a two-step
    analysis: first, we determine whether a carrier providing service on
    tribal lands is subject to the jurisdiction of a state commission or
    whether it is subject to a tribal authority given the tribal
    interests involved. Second, if the carrier is not subject to the
    jurisdiction of a state commission, the FCC considers the merits of
    the carrier's request to be designated as an ETC. This two-step
    process is intended to "avoid any costs and delays associated with
    resolving the threshold jurisdictional determination in a state
    designation proceeding and possible court appeal" of the state's
    decision, yet "preserv\[e\] the state commissions' jurisdiction
    consistent with federal, tribal, and state law."[^7] During the
    first stage of the two-step process (which we conduct in this
    Order), the petitioning carrier bears a strict burden of proving
    that it is not subject to the state commission's jurisdiction. The
    petitioning carrier must set forth in detail the basis for its
    assertion, including any relevant statements by the tribal
    authority. [^8]

    **C. The Western Wireless Petition for the Pine Ridge Reservation**

6.  In November 1999, the Oglala Sioux Tribe began negotiating with
    Western Wireless regarding the deployment of a wireless universal
    service offering on the Pine Ridge Reservation in South Dakota. On
    August 16, 2000, Western Wireless and the Oglala Sioux Tribe signed
    the Tate Woglaka Service Agreement (Service Agreement).[^9] Pursuant
    to the service agreement, Western Wireless represents that it has
    expressly consented to the Tribe's regulatory authority[^10] and the
    Tribe has rights to participate extensively in and administer
    Western Wireless' service plan for the Reservation.[^11]
    Furthermore, the service agreement is to be governed by tribal and
    federal law, and resolution of any disputes arising under the
    agreement will be through an arbitration process where judgments
    will be enforceable by the tribal court.[^12]

7.  In accordance with the *Twelfth Report and Order*, Western Wireless
    filed a petition with the FCC on January 19, 2001, requesting ETC
    designation for its provision of service to the Pine Ridge
    Reservation.[^13] On February 13, 2001, we sought public comment on
    the Western Wireless Petition. Nine parties filed comments, three
    parties filed replies, and numerous parties made additional
    filings.[^14] The Oglala Sioux Tribe supports FCC ETC jurisdiction
    and designation of Western Wireless in this case.[^15]

8.  In its Petition, Western Wireless argues that the FCC should make
    the ETC determination because the South Dakota Commission lacks
    jurisdiction over its provision of service on the Reservation.
    Western Wireless requests that we designate the entire geographic
    area of the Reservation as its "service area."[^16] Currently
    Western Wireless provides service only to tribal members which,
    according to Western Wireless, comprise nearly 91 percent of the
    Reservation's population.[^17] If Western Wireless is designated as
    an ETC, Western Wireless intends to provide supported service to
    both tribal and non-tribal members living on the Reservation.[^18]

9.  The South Dakota Commission opposes FCC action on Western Wireless'
    petition. The PUC asserts that Western Wireless is subject to its
    general regulatory authority under State law,[^19] and that its
    regulations applicable to Western Wireless at this time encompass
    the areas of service quality, complaint adjudication, and
    prohibitions on unjust and unreasonable discrimination in rates and
    terms of service.[^20] The South Dakota PUC also asserts a specific
    interest in making ETC determinations, citing off-reservation
    effects on maintaining quality and uniformity in telecommunications
    service for the existing ETC carrier and preventing unjust and
    unreasonable discrimination in telecommunications statewide.[^21]
    SDITC further argues that the State is better able to make the
    public interest determination whether to permit an additional ETC
    carrier for the area currently served by the incumbent rural
    telephone company, because the State is more familiar with its local
    history and circumstances.[^22] Furthermore, the South Dakota PUC
    maintains that the State has a strong interest in continuing to
    regulate all carriers serving the area constituting the Reservation,
    which include three wireline carriers currently serving
    approximately 73 percent of the households on the Pine Ridge
    Reservation.[^23] Shortly after the Act was passed, the South Dakota
    PUC designated all incumbent wireline carriers as ETC carriers
    throughout their service territories (some of which include parts of
    the Pine Ridge Reservation) without conducting a particularized
    inquiry.[^24]

# DISCUSSION

10. We conclude below that, under relevant Supreme Court precedent, the
    Tribe has jurisdiction with respect to Western Wireless' service
    provided to tribal members on the Reservation \-- who comprise the
    vast majority of the Reservation's population \-- and the State has
    jurisdiction with respect to any service provided to the remaining
    non-tribal residents on the Reservation. We further conclude under
    section 214(e) that the relevant service area for Western Wireless's
    ETC designation is defined as service to tribal members living
    within the boundary of the Pine Ridge Reservation. The service area
    does not include service to non-tribal members.

## Analysis Under Federal Indian Law

11. In assessing "the extent of state authority over the activities of
    non-Indians engaged in commerce on an Indian reservation," the
    Supreme Court in *White Mountain Apache Tribe v. Bracker* has
    established that the question calls "for a particularized inquiry
    into the nature of the state, federal, and tribal interests at
    stake."[^25] By balancing these interests, we are then able to
    resolve the ultimate question of whether the South Dakota PUC has
    jurisdiction over Western Wireless' service on the Pine Ridge
    Reservation. We therefore undertake that inquiry, examining in turn
    the relevant federal, state and tribal interests, consistent with
    the principles set out by the courts.

    **1. Federal Interests**

12. As to federal interests, we agree with the parties that this is not
    an instance in which state regulatory authority is preempted based
    on federal policies reflected in the Communications Act.[^26]
    Section 214(e)(2) gives the states primary responsibility to
    determine whether a carrier meets the ETC criteria. At the same
    time, section 214(e)(6) requires the FCC to make the ETC
    determination when the state lacks jurisdiction to do so. But the
    Act is silent on the issue of the circumstances in which a state
    commission lacks jurisdiction.[^27] In enacting section 214(e)(6),
    Congress acknowledged pending jurisdictional disputes between states
    and tribes and made clear that the adoption of section 214(e)(6) was
    not "intended to impact litigation regarding jurisdiction between
    State and federally-recognized tribal entities."[^28] Therefore,
    given Congress' recognition of possible tribal jurisdiction over
    carriers requesting ETC determinations, our task at this stage in
    the process is to determine whether the state or the tribe has
    jurisdiction, by examining the state and tribal interests in
    accordance with the relevant factors articulated by the Supreme
    Court and lower court decisions.[^29]

    **2. Tribal Interests**

13. [Background]{.underline}. This case presents the issue of the extent
    of tribal authority over a non-tribally owned carrier that intends
    to serve both tribal members and others on the reservation. More
    specifically, the population of the Pine Ridge Reservation, like
    that of most reservations, consists of both tribal and non-tribal
    members. The record indicates that 91 percent of the population is
    comprised of Indians, most of whom also are tribal members, and
    about 9 percent of the population is comprised of non-Indians.[^30]
    In addition, about 85 percent of the land on the Reservation is
    owned by or held in trust for the Tribe, whereas about 15 percent of
    the land within the Reservation boundaries is non-Indian fee land
    that is not owned by or held in trust for the Tribe and its
    members.[^31] This non-Indian fee land, mostly occupied by
    non-tribal members, is scattered randomly in a checkerboard fashion
    throughout the Reservation.

14. The Supreme Court has long held that tribal sovereignty interests
    are strongest with regard to on-reservation conduct of tribal
    members. In such cases, state law is generally inapplicable[^32] but
    for "exceptional circumstances."[^33] The Supreme Court's decision
    in *Montana v. United States*[^34] sets out the guiding principle
    that Indian tribes generally lack jurisdiction to regulate
    non-members on the reservation,[^35] but it recognized two
    exceptions to that rule. Under the first *Montana* exception, "\[a\]
    tribe may regulate, through taxation, licensing, or other means, the
    activities of nonmembers who enter consensual relationships with the
    tribe or its members, through commercial dealing, contracts, leases,
    or other arrangements."[^36] Under the second *Montana* exception,
    "\[a\] tribe may . . . exercise civil authority over the conduct of
    non-Indians on fee lands within its reservation when that conduct
    threatens or has some direct effect on the political integrity, the
    economic security, or the health or welfare of the tribe."[^37] In
    its most recent decisions, the Supreme Court continues to follow
    closely the principles of *Montana v. United States*, which it has
    referred to as "the pathmarking case" on Indian tribes' regulatory
    authority over non-members.[^38] We have therefore resolved this
    case in light of *Montana's* guidance.

15. [Discussion.]{.underline} After carefully examining the service
    agreement between the Oglala Sioux Tribe and Western Wireless, we
    are persuaded that, because of the carrier's consensual relationship
    with the Tribe, the first *Montana* exception is satisfied with
    respect to the carrier's service to tribal members. Pursuant to the
    service agreement, Western Wireless represents that it has expressly
    consented to the Tribe's regulatory authority,[^39] and the Tribe
    has rights to participate extensively in and administer the service
    plan.[^40] The Tribe, for example, assists Western Wireless in
    developing the service plan, deploying infrastructure, and
    establishing basic service rates.[^41] In addition, the agreement
    requires Western Wireless to give financial proceeds directly to the
    Tribe and give hiring preferences and training to tribal
    members.[^42] Furthermore, it allows the Tribe to interface with
    customers on the Reservation concerning such issues as marketing and
    billing and collection.[^43] The service agreement is to be governed
    by tribal and federal law, and resolution of any disputes arising
    under the agreement will be through an arbitration process where
    judgments will be enforceable by the tribal court.[^44] In this
    regard, Western Wireless states that its transactions with tribal
    members (with Western Wireless' consent) "are subject to the Tribe's
    jurisdiction."[^45] Similarly, the Oglala Sioux Tribe states that,
    in order to establish affordable telecommunications services for its
    residents, it has established a Utilities Commission "which has full
    rate and regulatory authority over all purveyors," and that Western
    Wireless "has agreed ... to abide by the Oglala Sioux Tribe
    Utilities Commission authority."[^46]

16. These features, we believe, set the agreement apart from a normal
    carrier-customer relationship and are directly related to the
    Tribe's sovereignty interests, including the regulation of
    transactions between the carrier and tribal members and substantial
    authority over the provision of communications services to the Tribe
    that affect the welfare of the Tribe.[^47] Consistent with the
    relevant Supreme Court decisions, these are areas in which tribal
    sovereignty interests are at their zenith. By the same token, given
    that the areas of state regulatory authority currently are limited
    to matters that primarily involve issues of service quality and
    complaint adjudication, we believe that the State's interests in
    resolving such disputes solely between tribal members and Western
    Wireless are minimal.

    **3. State Interests**

17. [Service to Tribal Members]{.underline}. As explained above, we are
    persuaded that, under well-established Supreme Court precedent, the
    tribal sovereignty interests in Western Wireless' service to tribal
    members outweigh the State's regulatory interests. We acknowledge
    the state interests in regulation of telecommunications services
    throughout the State of South Dakota, as well as the possibility
    that designating an additional ETC carrier for service to the
    Reservation could have off­-reservation effects on the incumbent
    carrier's service throughout its service area. Indeed, because
    Congress generally gave the states the authority to make ETC
    designations in section 214(e)(2), the statute establishes Congress'
    own recognition of the important state interests at stake.[^48]

18. Nevertheless, we do not agree that the interests asserted by the
    State under these circumstances outweigh the tribe's interests in
    regulating a carrier that has entered into a service agreement with
    the tribe and that provides service to its tribal members. Although
    we are sympathetic to state concerns about maintaining uniformity
    and preventing unjust and unreasonable discrimination in
    telecommunications statewide, we are persuaded that the tribe's
    interests in regulating service quality and determining the
    procedures by which to resolve complaints between Western Wireless
    and its tribal members are more compelling. Also, although we agree
    that, in general, states are more familiar with local history and
    circumstances, here we have been presented with a full record
    detailing the Oglala Sioux Tribe's sovereignty interests and its
    desire to regulate the relationship between the carrier and its own
    tribal members.

19. Section 214(e)(6) provides that, where a state lacks jurisdiction,
    the FCC shall make the public interest determination whether to
    designate a carrier as an ETC. Here, in light of *Montana* and the
    specific facts presented, we conclude that Western Wireless's
    service to tribal members is not properly subject to the
    jurisdiction of the state. We further conclude, therefore, that
    section 214(e)(6) requires the FCC to make the ETC designation.

20. We note that our decision that the state lacks jurisdiction over
    Western Wireless's service to tribal members is not inconsistent
    with continued state regulation of wireline carriers serving the
    Reservation, all of which were automatically granted ETC status by
    the state shortly after the Act was passed.[^49] States have far
    greater interests in regulating state-certificated rural or other
    wireline ETC carriers that provide service to and beyond the
    reservation area, often under comprehensive state regulatory schemes
    for wireline carriers of last resort. Here, the state does not
    regulate the rates that Western Wireless charges consumers,[^50] nor
    is Western Wireless the carrier of last resort. Indeed, the need for
    the state to protect its consumers through regulation of a second
    carrier providing service on the Reservation is reduced because
    tribal customers have the option, as a fallback, to subscribe to a
    state-regulated carrier. Furthermore, Congress appears to have
    contemplated the situation with which we are presented here: where
    an additional carrier, not subject to state jurisdiction, wants to
    be designated as an ETC for an area already being served by a rural
    telephone company, which is presumably regulated by the state and
    has most likely been designated by the state as an ETC.[^51]

21. Finally, and perhaps most importantly, the state-regulated wireline
    carriers, unlike Western Wireless, have not consented to tribal
    jurisdiction. Consent is a prerequisite under the first *Montana*
    exception, which provides that a tribe may regulate non-members who
    enter into a "consensual relationship" with the tribe. Thus, we
    conclude, as in other areas of federal Indian law, that the state
    continues to have jurisdiction over some entities for some purposes
    (*i.e.,* regulating the wireline carrier-of-last-resort) and the
    Tribe has jurisdiction over other entities for other purposes
    (*i.e.,* regulating a second carrier that has consented to tribal
    jurisdiction).

22. [Service to Non-Tribal Members]{.underline}. Although we find that
    the tribe has jurisdiction over Western Wireless to the extent that
    it serves *tribal* members, we conclude that there is little support
    for tribal jurisdiction over Western Wireless\' service to
    *non-tribal* members on the Reservation.[^52] As noted above,
    approximately 9 percent of the Reservation's population is comprised
    of non-Indians. The Supreme Court has indicated that tribal
    sovereignty interests generally do not apply to non-tribal members,
    particularly on non-Indian fee land. [^53] While the carrier's
    agreement to submit to tribal jurisdiction when it serves the tribal
    members has a nexus to tribal sovereignty interests, we do not find
    any support in the cases that tribal sovereignty interests extend to
    the carrier's relationship with non-tribal members, even if the
    carrier were to agree to submit to tribal jurisdiction when serving
    those customers. Indeed, a non-tribal carrier serving non-tribal
    customers does not appear to have any relationship to the internal
    affairs of the tribe.[^54]

23. Similarly, we do not agree with Western Wireless' position that we
    should declare tribal jurisdiction over all of Western Wireless'
    service on the Reservation, whether to tribal members or to others,
    based on the second *Montana* exception. As noted above, that
    exception permits tribal jurisdiction over non-tribal members
    because the conduct at issue "threatens or has some direct effect on
    the political integrity, the economic security, or the health or
    welfare of the tribe."[^55] In its decisions following *Montana*,
    the Supreme Court has made clear that the second exception is to be
    narrowly construed and does not extend beyond "what is necessary to
    protect tribal self-government or to control internal
    relations,"[^56] and is "crucial to 'the political integrity, the
    economic security, or the health or welfare'" of the tribe.[^57] We
    are not persuaded that, in the circumstances of this case, tribal
    regulation of the relationship between non-tribal customers and
    Western Wireless is so crucial to Indian sovereignty interests that
    it meets the Supreme Court's exacting standard. Insofar as the State
    asserts authority to regulate Western Wireless' provision of service
    to non-tribal members, therefore, we believe it may do so. We
    conclude, therefore, that under principles of federal Indian law,
    the Tribe has jurisdiction over aspects of Western Wireless' service
    to tribal members living within the Reservation boundaries, but the
    State commission has authority over the carrier's provision of
    service to non-tribal members.

24. Western Wireless also argues that we should utilize a balancing test
    based on the relative percentages of tribal and non-tribal residents
    and conclude that we may determine ETC designations for the entire
    Reservation. As explained above, however, we have discovered nothing
    in the relevant case law that provides for any *de minimis*
    exception to the boundaries of state jurisdiction that would permit
    the FCC to make the ETC determination for Western Wireless' service
    to non-members on the Reservation. Nor do we believe that section
    214(e) itself supports such a result. Defining Western Wireless'
    service area as the entire Reservation in this case would exceed the
    boundaries of our authority under section 214(e)(6), which expressly
    provides that we may make ETC designations only when a carrier's
    service is not subject to the jurisdiction of a state
    commission.[^58]

## Analysis of Service Area under Section 214

25. Under section 214(e)(1), a carrier designated as an ETC is eligible
    to receive universal service support "throughout the service area
    for which the designation is received\[.\]"[^59] Under the
    circumstances presented here, we conclude that the "service area"
    consists of the geographic area within the boundary of the Pine
    Ridge Reservation. We note, however, that section 214(e)(6) only
    permits the FCC to authorize federal universal service funding when
    the carrier providing telephone service "is not subject to the
    jurisdiction of a State commission." As discussed above, we find
    that the state retains jurisdiction over Western Wireless to the
    extent that the carrier serves non-tribal members. Thus, we are
    barred by the statute from authorizing universal service funding for
    Western Wireless to the extent that it serves non-tribal members.
    Accordingly, Western Wireless need comply with the requirements of
    section 214(e)(1) \-- including the requirement to offer supported
    services \-- only insofar as it is providing service to tribal
    members on the Reservation.[^60]

26. We also note that, at the current time, Western Wireless is offering
    telephone service only to tribal members on the Reservation.[^61]
    Thus, our definition of the service area reflects Western Wireless'
    current service offering for which they do not currently receive
    universal service support. From an administrative perspective, the
    carrier would merely be converting its current service offering into
    a supported service, which should enable the carrier to receive
    universal service support and to offer reduced rates to its tribal
    customers.

27. As to non-members, we encourage the South Dakota PUC to act
    expeditiously should Western Wireless request the PUC to designate
    Western Wireless as an ETC for service to non-tribal members living
    on the Reservation.[^62] In our companion order, we have determined
    that it serves the public interest for Western Wireless to be
    designated an ETC for its service to tribal members on the
    Reservation; however, we recognized in the *Twelfth Report and
    Order* that non-Indian, low-income households on tribal lands may
    face the same or similar economic and geographic barriers as those
    faced by low-income Indian households.[^63] Further, as we stated in
    the *Twelfth Report and Order*, increasing the total number of
    individuals, both Indian and non-Indian, who are connected to the
    network within a tribal community, enhances the value of the network
    in the community and results in greater incentives for carriers to
    serve these areas.[^64] Therefore, we encourage the South Dakota PUC
    to take action consistent with these policies.

# IV. ORDERING CLAUSES {#iv.-ordering-clauses .unnumbered}

28. Accordingly, IT IS ORDERED that, pursuant to the authority contained
    in sections 1-4, 214, and 254 of the Communications Act of 1934, as
    amended, 47 U.S.C. §§ 151-54, 214, and 254, this Memorandum Opinion
    and Order IS ADOPTED.

29. IT IS FURTHER ORDERED that Western Wireless' Petition for
    Designation as an Eligible Telecommunications Carrier for the Pine
    Ridge Reservation in South Dakota IS GRANTED IN PART and DENIED IN
    PART to the extent indicated herein.

    FEDERAL COMMUNICATIONS COMMISSION

    Magalie Roman Salas

    Secretary

DISSENTING STATEMENT OF

**COMMISSIONER KEVIN J. MARTIN**

*Re: Federal-State Joint Board on Universal Service; Western Wireless
Corporation Petition for Designation as an Eligible Telecommunications
Carrier for the Pine Ridge Reservation in South Dakota*, Memorandum
Opinion and Order, CC Docket No. 96-45.

I dissent from the Commission's determination that the South Dakota
Public Utilities Commission lacks jurisdiction to designate Western
Wireless as an eligible telecommunications carrier (ETC) in its service
to Indians on the Pine Ridge Reservation. Section 214(e)(6) states that
the Commission may designate as an ETC "a common carrier providing
telephone exchange service and exchange access that is not subject to
the jurisdiction of a State commission." 47 U.S.C. § 214(e)(6). As the
Commission acknowledges, Congress added this provision based on concerns
that some Indian controlled carriers had been unable to obtain a forum
in which to seek ETC status due to limitations on the jurisdiction of
particular State commissions. *See* *Federal-State Joint Board on
Universal Service; Promoting Deployment and Subscribership in Unserved
and Underserved Areas, Including Tribal and Insular Areas*, Twelfth
Report and Order, Memorandum Opinion and Order, and Further Notice of
Proposed Rulemaking, 15 FCC Rcd 12208, ¶ 98 (2000). Congress thus
amended the statute to ensure that every carrier has some forum in which
to obtain ETC status and thereby receive universal service support.
*See* Pine Ridge Jurisdiction Order ¶ 3.

In my view, the Commission has taken a misguided approach to
effectuating Congress's intent. Rather than simply ensuring that
carriers have a place to go when State commissions or courts conclude
that a State lacks jurisdiction, the Commission has made itself the
arbiter of competing jurisdictional claims made by States and Indian
tribes. The Commission has chosen to displace State claims of
jurisdiction based on its own analysis of the merits, using "a
complicated and intensely fact-specific legal inquiry informed by
principles of tribal sovereignty and requiring the interpretation of
treaties, and federal Indian law and state law." Twelfth Report and
Order, 15 FCC Rcd ¶ 108. The Commission should refrain from making such
determinations. As a body devoted to the oversight of our nation's
communications, we have neither the experience, skill, nor authority to
make these complicated and contentious decisions regarding the power of
Indian tribes and States.

Moreover, despite the Commission's best efforts, its decision in this
case is fraught with legal and practical problems. Among other things,
we have set up a regime in which Western Wireless will receive universal
service funding for serving Indians but not non-Indians, even if they
live on the same land. This approach conflicts with our statutory
obligation to make ETC designations for a particular "service area,"
which, by statute, "means a geographic area." 47 U.S.C. § 214(e)(5). In
this case, the Orders even acknowledge that the State has jurisdiction
to make the designation with respect to some of the residents within the
service area. To the extent the Commission could not lawfully make a
designation for the entire geographic area, as its Orders conclude, it
bolsters my view that we should not be making designations in such cases
at all. Additionally, we have set up a regime in which different
carriers serving the same people will be regulated by different
entities, depending largely on whether the carrier has "consented to
tribal jurisdiction." Pine Ridge Jurisdiction Order ¶ 21. This regime
will only encourage forum shopping and make impossible any coherent
telecommunications policy on the reservation. Finally, in designating
Western Wireless as an ETC, we have made a public interest determination
that may differ from the one made by the South Dakota Commission, which
is in a superior position to assess the relevant local conditions.

I worry that this decision will only encourage more parties to come
before the Commission seeking to displace State claims of jurisdiction.
While Indian tribes may have legitimate claims of sovereignty in these
situations, both they and the States deserve a better forum than this
one to resolve their claims. I am convinced that the parties would be
far better served by resolving such claims through the legal process in
the courts and letting the Commission devote its limited resources to
issues of communications. Accordingly, I respectfully dissent.

[^1]: 47 U.S.C. § 254(e).

[^2]: 47 U.S.C. § 214(e)(2).

[^3]: 143 Cong. Rec. H10807 (daily ed. Nov. 13, 1997) (statement of Rep.
    Bliley).

[^4]: 143 Cong. Rec. S12568 (daily ed. Nov. 13, 1997) (statement of Sen.
    McCain).

[^5]: 47 U.S.C. § 214(e)(6).

[^6]: *Federal-State Joint Board on Universal Service; Promoting
    Deployment and Subscribership in Unserved and Underserved Areas,
    Including Tribal and Insular Areas; Smith Bagley, Inc.; Cheyenne
    River Sioux Tribe Telephone Authority; Western Wireless Corporation,
    Wyoming; Cellco Partnership d/b/a/ Bell Atlantic Mobile, Inc.;
    Petitions for Designation as an Eligible Telecommunications Carrier
    and for Related Waivers to Provide Universal Service;* CC Docket No.
    96-45; Twelfth Report and Order, Memorandum Opinion and Order, and
    Further Notice of Proposed Rulemaking; 15 FCC Rcd 12208, 12265,
    paras. 115-27 (2000) (*Twelfth Report and Order*).

[^7]: *Twelfth Report and Order*, 15 FCC Rcd at 12265, para. 115.

[^8]: *Twelfth Report and Order*, 15 FCC Rcd at 12266-67, paras. 120-22.

[^9]: Western Wireless Petition.

[^10]: Western Wireless Petition at 15.

[^11]: Western Wireless Petition at 4-5.

[^12]: Western Wireless Petition at 6.

[^13]: Western Wireless Petition for Designation as an Eligible
    Telecommunications Carrier for the Pine Ridge Reservation in South
    Dakota (filed Jan. 19, 2001) (Western Wireless Petition). Western
    Wireless filed a petition for ETC designation with the South Dakota
    PUC for the entire state on August 25, 1998. *See GCC License
    Corporation for Designation as an Eligible Telecommunications
    Carrier*, 623 N.W.2d 474 (S.D. 2001). The South Dakota PUC concluded
    that Western Wireless failed to meet the ETC requirements in section
    214(e)(1) of the Act and denied Western Wireless\' petition. On
    appeal, the South Dakota Supreme Court reversed and held that
    Western Wireless met the ETC requirements statewide, but remanded to
    the South Dakota PUC the public interest determination required
    under section 214(e)(2) for areas served by a rural telephone
    company. *Id.* These areas encompass the Pine Ridge Reservation.

    Subsequent to the South Dakota Supreme Court\'s remand, Western
    Wireless removed from the South Dakota PUC\'s consideration those
    study areas that encompass nearly all of the Reservation. *See*
    Letter from David L. Sieradzki, Hogan & Hartson, L.L.P., Counsel for
    Western Wireless Corp., to Magalie Roman Salas, Secretary, FCC,
    dated June 5, 2001 (Western Wireless June 5, 2001 *Ex Parte*
    Letter); Letter from Richard J. Johnson, Moss & Barnett, Counsel for
    Fort Randall Telephone Company, to Magalie Roman Salas, Secretary,
    FCC, dated June 27, 2001. Western Wireless took this action to
    eliminate any claim that it was violating the *Twelfth Report and
    Order*\'s restriction on simultaneously pending ETC requests before
    the state PUC and FCC. Western Wireless June 5, 2001 *Ex Parte*
    Letter.

[^14]: Commenters are the Cellular Telecommunications & Internet
    Association (CTIA), Fort Randall/Mt. Rushmore Telephone Co., Golden
    West Telecommunications Cooperative Inc. (Golden West), Great Plains
    Communications Inc. (Great Plains), National Telephone Cooperative
    Association (NTCA), Oglala Sioux Tribe, South Dakota Independent
    Telephone Coalition (SDITC), South Dakota Public Utilities
    Commission (South Dakota PUC), and Western Wireless. Reply
    commenters are Fort Randall/Mt. Rushmore Telephone Co., Oglala Sioux
    Tribe, and SDITC.

[^15]: Letter from John Yellow Bird Steele, President, Oglala Sioux
    Tribe, to Michael Powell, Chairman, FCC, dated March 12, 2001;
    Letter from John Steele, Tribal Chairman, Frank Means, Economic and
    Business Development Committee Chairman, and Gary Janis, Economic
    and Business Development Committee Vice-Chairman, Oglala Sioux
    Tribe, to Magalie Roman Salas, Secretary, FCC, dated June 12, 2001.

[^16]: Western Wireless Petition at 7.

[^17]: *See* Western Wireless Petition at 3, 9, 10-11, ("\[a\]bout 91.5%
    of the residents of the Pine Ridge Reservation are Native
    Americans"), 25 ("\[tribal\] members . . . comprise 91.5% of the
    Reservation's population); South Dakota Comments at 19 (referring to
    the "failure of Western Wireless to identify the actual number of
    members of the Oglala Sioux Tribe\"); Western Wireless Reply at 13,
    n.28 ("virtually all" of the Native American population on the Pine
    Ridge Reservation "are likely Oglala Sioux, and the SDPUC provides
    no evidence supporting a different conclusion").

[^18]: Western Wireless Petition at 9.

[^19]: The South Dakota PUC asserts that the services Western Wireless
    offers on the Reservation fall within the definition of a
    \"telecommunications service\" under South Dakota state law SDCL
    49-31-1(27) and, as such, Western Wireless is a \"telecommunications
    company\" subject to the \"general panoply of state regulatory
    authority.\" *See also* SDITC Comments at 12, n.13 (South Dakota
    state law SDCL 49-31-78 expressly provides for South Dakota PUC
    action on ETC designation petitions).

[^20]: South Dakota PUC Comments at 12-17; *see* Golden West Comments at
    6.

[^21]: South Dakota PUC Comments at 15-16; *see* Golden West Comments at
    6; Fort Randall Reply at 3-4.

[^22]: South Dakota Independent Telephone Coalition, Inc. Comments at
    16-17; *see* Fort Randall Reply at 3.

[^23]: *See* Letter from Benjamin H. Dickens, Jr., Blooston, Mordkofsky,
    Dickens, Duffy & Prendergast, Counsel for Golden West
    Telecommunications Cooperative, to Susan H. Steiman, Office of
    General Counsel, FCC, dated July 11, 2001; Golden West Comments at
    18; Great Plains Comments at 2; Letter from Bruce Hanson, Treasurer,
    Mt. Rushmore Telephone Company, to Magalie Roman Salas, Secretary,
    FCC, dated July 5, 2001; *but see* Western Wireless Petition at 3,
    App. A (according to Tribe resolution, telephone penetration rate on
    Reservation is less than 50 percent); NTCA Comments at 4-5
    (according to 1999 NTCA staff report, Golden West reported telephone
    penetration rate of 86 percent for portion of Reservation it
    served).

[^24]: *See, e.g.,* SDITC Comments, Appendix B (South Dakota PUC orders
    designating Golden West and Fort Randall telephone companies as ETC
    carriers.)

[^25]: *White Mountain Apache Tribe v. Bracker*, 448 U.S. 136, 145
    (1980).

[^26]: Western Wireless Petition at 8-9 (referencing Western Wireless
    Petition for Designation as an Eligible Telecommunications Carrier
    and for Related Waivers To Provide Universal Service to the Crow
    Reservation in Montana, Jurisdictional Supplement, Appendix (Letter
    from Richard B. Collins, Professor, University of Colorado at
    Boulder School of Law, to Gene DeJordy, Vice President of Regulatory
    Affairs, Western Wireless Corporation, (dated Sep. 29, 2000)
    (Collins Sep. 29, 2000 *Ex Parte* Letter) at 2)); Golden West
    Comments at 6; Great Plains Comments at 6; South Dakota PUC Comments
    at 10-11; Letter from Benjamin H. Dickens, Mary J. Sisak, Blooston,
    Mordkofsky, Dickens, Duffy and Prendergast, Counsel for Golden West
    Telephone Cooperative, Inc., and David Cosson, Kraskin, Lesse &
    Cosson, L.L.P., Counsel for Great Plains Telecommunications, Project
    Telephone Company and Range Telephone Cooperative, to Magalie Roman
    Salas, Secretary, FCC (dated June 29, 2001) (Golden West/Great
    Plains June 29, 2000 *Ex Parte* Letter).

[^27]: 47 U.S.C. § 214(e)(2), (e)(6); *see* Collins Sep. 29, 2000 *Ex
    Parte* Letter at 2.

[^28]: 143 Cong. Rec. H10808-09 (daily ed. Nov. 13, 1997) (Colloquy
    between Representatives Thune and Bliley); *see also* 143 Cong. Rec.
    S12568-01 (daily ed. Nov. 13, 1997) (Colloquy between Senators
    Daschle and McCain).

[^29]: *See New Mexico v. Mescalero Apache Tribe*, 462 U.S. 324, 334
    n.16 (1983) (the exercise of State authority may be barred if "it
    unlawfully infringes 'on the right of reservation Indians to make
    their own laws and be ruled by them,'" *quoting White Mountain
    Apache Tribe v. Bracker*, 448 U.S. 136, 142 (1980) and *Williams v.
    Lee*, 358 U.S. 217, 220 (1959)).

[^30]: *See* *supra* note 15.

[^31]: Letter from David L. Sieradzki, Counsel for Western Wireless
    Corp., Hogan & Hartson L.L.P., to Magalie Roman Salas, Secretary,
    Federal Communications Commission, dated June 5, 2001, at 3
    ("\[eighty-five\]% of the Reservation's land . . . is owned by or
    held in trust for the tribe and its members," *referencing* year
    2000 statistics from the Bureau of Indian Affairs).

[^32]: *White Mountain Apache Tribe v. Bracker*, 448 U.S. 136, 144
    (1980).

[^33]: *California v. Cabazon Band of Mission Indians*, 480 U.S. 202,
    215 (1987) (*quoting New Mexico v. Mescalero Apache Tribe*, 462 U.S.
    324, 331-332 (1983)).

[^34]: *Montana v. United States*, 450 U.S. 544 (1981).

[^35]: *Nevada v. Hicks*, 2001 WL 703914, 4, 121 S.Ct. 2304 (2001).

[^36]: *Montana v. United States*, 450 U.S. 544, 565 (1981).

[^37]: *Montana v. United States*, 450 U.S. 544, 566 (1981).

[^38]: *Nevada v. Hicks*, 2001 WL 703914, 3, 121 S.Ct. 2304 (2001)
    (*citing Strate v. A-1 Contractors*, 520 U.S. 438, 445 (1997)).

[^39]: Western Wireless Petition at 15; *see Nevada v. Hicks*, 2001 WL
    703914, 11 (first *Montana* exception refers "to private individuals
    who voluntarily submitted themselves to tribal regulatory
    jurisdiction by the arrangements that they ... entered into").

[^40]: Western Wireless Petition at 4-5.

[^41]: Western Wireless Petition at 4-5.

[^42]: Western Wireless Petition at 5.

[^43]: Western Wireless Petition at 5.

[^44]: Western Wireless Petition at 6.

[^45]: Western Wireless Petition at 15.

[^46]: Letter from John Yellow Bird Steele, President, Oglala Sioux
    Tribe, to Michael Powell, Chairman, FCC, dated March 12, 2001,
    Attachment at 2 (Letter from Wilbur Between Lodges, Vice Chairman,
    Oglala Sioux Tribe and G. Wayne Tapio, Chairman, Oglala Sioux Tribe
    Economic & Business Development Committee, to William Kennard,
    Chairman, FCC, dated May 31, 2000).

[^47]: *See Nevada v. Hicks*, 2000 WL 703914 (2001) ("Tribal assertion
    of regulatory authority over nonmembers must be connected to that
    right of the Indians to make their own laws and be governed by
    them"); *see also Atkinson Trading Company, Inc. v. Shirley*, 121
    S.Ct. 1825, 1833 (2001) ("*Montana's* consensual relationship
    exception requires that the ... regulation imposed by the Indian
    tribe have a nexus to the consensual relationship itself," *citing
    Strate v. A-1 Contractors*, 520 U.S. 438, 457 (1997)); *cf. Cheyenne
    River Sioux Tribe Telephone Authority v. Public Utilities Commission
    of South Dakota*, 595 N.W.2d 604, 609 (S.D. 1999) (contract for
    purchase of telephone exchange between Tribe and US WEST failed to
    displace state law requiring state PUC approval of all sales of
    telephone exchanges under first *Montana* exception because contract
    "was dependent upon approval of the sale, not upon the consensual
    agreement between US WEST and \[Tribal carrier\]" and thus State law
    did not impair tribal sovereignty interests.)

[^48]: *See* South Dakota Independent Telephone Coalition Comments at
    16; Fort Randall Reply at 3-4; Golden West/Great Plains June 29,
    2001 *Ex Parte* Letter at 2.

[^49]: *See, e.g.,* SDITC Comments, Appendix B (South Dakota PUC orders
    designating Golden West and Fort Randall telephone companies as ETC
    carriers.)

[^50]: The issue of whether state rate and entry regulation of Western
    Wireless' basic universal service offering is preempted under
    section 332(c)(3) of the Act is pending before the FCC. *See, e.g.,*
    South Dakota PUC Comments at 15, *citing* State Independent
    Telecommunications Group Petition for Declaratory Ruling that the
    Basic Universal Offering Provided by Western Wireless in Kansas Is
    Subject to Regulation as Local Exchange Service, WT Docket 00-239
    (filed Nov. 3, 2000).

[^51]: Section 214(e)(6) provides that the FCC may, "with respect to an
    area \[already being\] served by a rural telephone
    company...designate more than one common carrier as an eligible
    telecommunications carrier\[.\]"

[^52]: *See* Collins at 3; *Nevada v. Hicks*, 2001 WL 703914 (2001)
    (characterizing sole Court decision upholding under *Montana* tribal
    regulatory authority over nonmembers on non-Indian land within
    reservation as "minor exception"); *Atkinson v. Shirley*, (tribe
    lacks jurisdiction under *Montana* to tax nonmember guests of hotel
    located on non-tribal land within reservation); *Strate v. A-1
    Contractors*.

[^53]: *See Nevada v. Hicks*, 2001 WL 703914 (2001) (land ownership is
    only one factor to be considered in determining tribal jurisdiction,
    and land ownership alone is not enough to support tribal regulatory
    jurisdiction over non-tribal members.)

[^54]: *See Nevada v. Hicks*, 2001 WL 703914 (2001) ("Where nonmembers
    are concerned, the exercise of tribal power [beyond what is
    necessary to protect tribal self-government or to control internal
    relations]{.underline} is inconsistent with the dependent status of
    the tribes . . . .") (Emphasis in original).

[^55]: *Montana v. United States*, 450 U.S. 544, 566 (1981).

[^56]: *Strate v. A-1 Contractors*, 520 U.S. 438, 459 (1997) (*quoting
    Montana v. United States*, 450 U.S. 544, 564 (1980)).

[^57]: *Strate v. A-1 Contractors*, 520 U.S. 438, 459 (1997).

[^58]: We note that our decision here is distinguishable from cases such
    as *Arizona Public Service Company v. Environmental Protection
    Agency*, 211 F.3d 1280, 1288-1292 (D.C. Cir. 2000), in which the
    court concluded that Congress had expressly delegated authority to
    the tribes to regulate air quality on all nonmember fee lands
    located within reservations. In that case, the court relied on 1990
    Amendments to the Clean Air Act providing that a tribe could
    exercise authority "within the exterior boundaries of the
    reservation" and not merely in areas "within a tribal government's
    jurisdiction." The *Arizona* court conceded that, had Congress used
    only more general language referring to the tribes' authority in
    areas within tribal "jurisdiction," the statute would have supported
    the petitioner's position that tribes lacked authority over
    privately owned fee land within reservations. In contrast to
    *Arizona*, there is no similar statutory language here indicating
    express congressional intent to afford tribes jurisdiction over
    nonmember fee land within reservations; instead, the language of
    section 214(e)(6) refers only generally to the absence of state
    "jurisdiction." Further, the legislative history of section
    214(e)(6) affirmatively indicates the section was not intended to
    affect jurisdictional disputes between tribes and states. Also,
    given the high mobility of air pollutants and their serious areawide
    effects, the *Arizona* court agreed with the EPA that a
    "checkerboard' pattern of regulation of air quality would be
    "inconsistent with the purpose and provisions of the \[Clean Air\]
    Act." 211 F.3d at 1288. We find no indication that our
    jurisdictional determination in this case, which hinges on whether
    particular customers receiving service from Western Wireless are
    tribal members, would result in a pattern of regulation that
    conflicts with the purposes or provisions of the Communications Act
    or section 214(e).

[^59]: 47 U.S.C. § 214(e)(1).

[^60]: As we explain in our companion order, we reject the contention
    raised by some commenters that, under section 214(e)(5), the service
    area we define must be coextensive with the incumbent LEC's study
    area. Reading sections 214(e)(5) and (e)(6) together, we conclude
    that we must designate the service area in these circumstances to
    include only those portions of the relevant study areas over which
    the Commission has jurisdiction to make the ETC designation under
    section 214(e)(6). *Federal-State Joint Board on Universal Service;
    Western Wireless Corporation Petition for Designation as an Eligible
    Telecommunications Carrier for the Pine Ridge Reservation in South
    Dakota*, CC Docket No. 96-45, Memorandum Opinion and Order, FCC
    01-283 (rel. Oct. 5, 2001).

[^61]: Letter from David L. Sieradzki, Hogan & Hartson, L.L.P., to
    Magalie Roman Salas, Secretary, FCC, dated June 13, 2001 (Western
    Wireless June 13, 2001 *Ex Parte* Letter), Att. at 2.

[^62]: *See Twelfth Report and Order*, 15 FCC Rcd 12208, 12267, para.
    121 (where the carrier fails to demonstrate that it is not subject
    to the state commission's jurisdiction, the Commission will dismiss
    the carrier's request for ETC designation and direct the carrier to
    seek designation from the appropriate state commission).

[^63]: *Twelfth Report and Order*, 15 FCC Rcd 12208, 12225, para. 29.

[^64]: *Twelfth Report and Order*, 15 FCC Rcd 12208, 12225, paras.
    29-30.