18476 Federal Register / Vol. 76, No. 64 / Monday, April 4, 2011 / Proposed Rules 

beneficiary protection, we are relaxing 

the current rule barring ‘‘direct 

solicitation’’ and are reverting to the 

requirements in place prior to the 

August 27, 2010 final rule. We did 

consider the alternative of not 

proceeding with the proposed 

provisions; however, we believe that the 

proposed rule is necessary to ensure 

consistency and clarity with regard to 

supplier standards. In addition, we are 

relaxing our standards to enable certain 

nonphysician practitioners to more 

easily provide access to care for our 

beneficiaries by reducing the burden 

associated with the provisions limiting 

licensed professionals, zoning 

requirements, and addressing certain 

contractual arrangement issues. 

In accordance with the provisions of 

Executive Order 12866, this regulation 

was reviewed by the Office of 

Management and Budget. 

List of Subjects in 42 CFR Part 424 

Emergency medical services, Health 

facilities, Health professionals, 

Medicare, Reporting and recordkeeping 

requirements. 

For the reasons set forth in the 

preamble, the Centers for Medicare & 

Medicaid Services proposed to amend 

42 CFR part 424 as set forth below: 

PART 424—CONDITIONS FOR 

MEDICARE PAYMENT 

1. The authority citation for part 424 

continues to read as follows: 

Authority: Secs. 1102 and 1871 of the 

Social Security Act (42 U.S.C. 1302 and 

1395hh). 

Subpart D—To Whom Payment Is 

Ordinarily Made 

§ 424.57 Amended 

2. Section 424.57 is amended by— 

A. Removing the definition of ‘‘Direct 

solicitation’’ in paragraph (a). 

B. Revising paragraph (c)(1)(ii). 

C. Removing paragraph (c)(1)(iii). 

D. Revising paragraphs (c)(7)(i)(A) and 

(c)(11). 

E. In paragraph (c)(30)(ii)(B), 

removing the phrase ‘‘Licensed nonphysician practitioners’’ and adding the 

phrase ‘‘A physical or occupational 

therapist’’ in its place. 

The additions and revisions read as 

follows: 

§ 424.57 Special payment rules for items 

furnished by DMEPOS suppliers and 

issuance of DMEPOS supplier billing 

privileges. 

(c) * * * 

(1) * * * 

(ii) State licensure and regulatory 

requirements. If a State requires 

licensure to furnish certain items or 

services, a DMEPOS supplier— 

(A) Must be licensed to provide the 

item or service; and 

(B) May contract with an individual 

or other entity to provide the licensed 

services unless expressly prohibited by 

State law. 

* * * * * 

(7) * * * 

(i) * * * 

(A)(1) Except for orthotic and 

prosthetic personnel described in 

paragraph (c)(7)(i)(A)(2) of this section, 

maintains a practice location that is at 

least 200 square feet beginning— 

(i) September 27, 2010 for a 

prospective DMEPOS supplier; 

(ii) The first day after termination of 

an expiring lease for an existing 

DMEPOS supplier with a lease that 

expires on or after September 27, 2010 

and before September 27, 2013; or 

(iii) September 27, 2013, for an 

existing DMEPOS supplier with a lease 

that expires on or after September 27, 

2013. 

(2) Orthotic and prosthetic personnel 

providing custom fabricated orthotics or 

prosthetics in private practice do not 

have to meet the practice location 

requirements in paragraph(c)(7)(i)(A)(1) 

of this section if the orthotic and 

prosthetic personnel are— 

(i) State-licensed; or 

(ii) Practicing in a State that does not 

offer State licensure for orthotic and 

prosthetic personnel. 

* * * * * 

(11) Must agree not to contact a 

beneficiary by telephone when 

supplying a Medicare-covered item 

unless one of the following applies: 

(i) The individual has given written 

permission to the supplier to contact 

them by telephone concerning the 

furnishing of a Medicare-covered item 

that is to be rented or purchased. 

(ii) The supplier has furnished a 

Medicare-covered item to the individual 

and the supplier is contacting the 

individual to coordinate the delivery of 

the item. 

(iii) If the contact concerns the 

furnishing of a Medicare-covered item 

other than a covered item already 

furnished to the individual, the supplier 

has furnished at least one covered item 

to the individual during the 15-month 

period preceding the date on which the 

supplier makes such contact. 

* * * * * 

Authority: (Catalog of Federal Domestic 

Assistance Program No. 93.773, Medicare— 

Hospital Insurance; and Program No. 93.774, 

Medicare—Supplementary Medical 

Insurance Program) 

Dated: February 9, 2011. 

Donald M. Berwick, 

Administrator, Centers for Medicare & 

Medicaid Services. 

Approved: February 25, 2011. 

Kathleen Sebelius, 

Secretary. 

[FR Doc. 2011–7885 Filed 4–1–11; 8:45 am] 

BILLING CODE 4120–01–P 

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Part 1 

[WT Docket No. 11–40; FCC 11–29] 

Improving Communications Services 

for Native Nations by Promoting 

Greater Utilization of Spectrum Over 

Tribal Lands 

AGENCY: Federal Communications 

Commission. 

ACTION: Proposed rule. 

SUMMARY: This document seeks 

comment on a range of specific 

proposals and issues with the objective 

of promoting greater use of spectrum 

over unserved and underserved Tribal 

lands. 

DATES: Comments are due on or before 

May 19, 2011; reply comments are due 

on or before June 20, 2011. 

ADDRESSES: You may submit comments, 

identified by WT Docket No. 11–40, by 

any of the following methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

• Federal Communications 

Commission’s Web Site: http:// 

fjallfoss.fcc.gov/ecfs2/. Follow the 

instructions for submitting comments. 

• Paper Filers: Parties who choose to 

file by paper must file an original and 

four copies of each filing. Filings can be 

sent by hand or messenger delivery, by 

commercial overnight courier, or by 

first-class or overnight U.S. Postal 

Service mail. All filings must be 

addressed to the Commission’s 

Secretary, Office of the Secretary, 

Federal Communications Commission. 

• All hand-delivered or messengerdelivered paper filings for the 

Commission’s Secretary must be 

delivered to FCC Headquarters at 445 

12th St., SW., Room TW–A325, 

Washington, DC 20554. All hand 

deliveries must be held together with 

rubber bands or fasteners. Any 

envelopes must be disposed of before 

entering the building. 

• Commercial overnight mail (other 

than U.S. Postal Service Express Mail 

and Priority Mail) must be sent to 9300 

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Federal Register / Vol. 76, No. 64 / Monday, April 4, 2011 / Proposed Rules 18477 

East Hampton Drive, Capitol Heights, 

MD 20743. 

• U.S. Postal Service first-class, 

Express, and Priority mail must be 

addressed to 445 12th Street, SW., 

Washington, DC 20554. 

• People with Disabilities: Contact the 

FCC to request reasonable 

accommodations (accessible format 

documents, sign language interpreters, 

CART, etc.) by e-mail: FCC504@fcc.gov 

or telephone: 202–418–0530 or TTY: 

202–418–0432. 

• In addition to filing comments with 

the Secretary, a copy of any PRA 

comments on the proposed collection 

requirements contained herein should 

be submitted to the Federal 

Communications Commission via e-mail 

to PRA@fcc.gov and to Nicholas A. 

Fraser, Office of Management and 

Budget, via e-mail to 

nfraser@omb.eop.gov or fax at 

202–395–5167. 

FOR FURTHER INFORMATION CONTACT: 

Wireless Telecommunications Bureau, 

Auctions and Spectrum Access Division: 

Stephen Johnson, Attorney Advisor, at 

(202) 418–0660. For additional 

information concerning the information 

collection requirements in this 

document, send an e-mail to 

PRA@fcc.gov or contact Judith B. 

Herman at 202–518–0214. 

SUPPLEMENTARY INFORMATION: This is a 

summary of the Commission’s Spectrum 

over Tribal Lands Notice of Proposed 

Rule Making (Spectrum over Tribal 

Lands NPRM) adopted and released on 

March 3, 2011, in WT Docket 

No. 11–40. The complete text of the 

Spectrum over Tribal Lands NPRM is 

available for public inspection and 

copying from 8 a.m. to 4:30 p.m. ET 

Monday through Thursday or from 

8 a.m. to 11:30 a.m. ET on Fridays in the 

FCC Reference Information Center, 445 

12th Street, SW., Room CY–A257, 

Washington, DC 20554. The Spectrum 

over Tribal Lands NPRM may be 

purchased from the Commission’s 

duplicating contractor, Best Copy and 

Printing, Inc. (BCPI), 445 12th Street, 

SW., Room CY–B402, Washington, DC 

20554, telephone 202–488–5300, fax 

202–488–5563, or you may contact BCPI 

at its Web site: 

http://www.BCPIWEB.com. When 

ordering documents from BCPI, please 

provide the appropriate FCC document 

number, for example, FCC 11–29. The 

Spectrum over Tribal Lands NPRM is 

also available on the Internet at the 

Commission’s Web site or by using the 

search function for WT Docket 

No. 11–40 on the ECFS Web page at 

http://www.fcc.gov/cgb/ecfs/. 

Initial Paperwork Reduction Act of 

1995 Analysis 

This document contains proposed 

information collection requirements. 

The Commission, as part of its 

continuing effort to reduce paperwork 

burdens, invites the general public and 

the Office of Management and Budget to 

comment on the information collection 

requirements contained in the 

document, as required by the Paperwork 

Reduction Act of 1995, Public Law 

104–13. Comments should address: 

(a) Whether the proposed collection of 

information is necessary for the proper 

performance of the functions of the 

Commission, including whether the 

information shall have practical utility; 

(b) the accuracy of the Commission’s 

burden estimates; (c) ways to enhance 

the quality, utility and clarity of the 

information collected, and (d) ways to 

minimize the burden of the collection of 

information on the respondents, 

including the use of automated 

collection techniques or other forms of 

information technology. In addition, 

pursuant to the Small Business 

Paperwork Relief Act of 2002, Public 

Law 107–198, 44 U.S.C. 3506(c)(4), the 

Commission seeks specific comment on 

how the Commission might further 

reduce the information collection 

burden for small business concerns with 

fewer than 25 employees. 

I. Synopsis 

1. While competitive market forces 

have spurred robust wireless 

communications services in many areas, 

connectivity for federally-recognized 

American Indian Tribes and Alaska 

Native Villages (Tribes) and other 

residents in many Tribal areas remains 

at significantly lower levels. Although 

the Commission has adopted a range of 

programs intended to promote access to 

wireless radio and other 

communications services in Tribal 

areas, its deep concern about the lack of 

wireless service on Tribal lands is 

prompting it to consider developing 

new mechanisms to foster increased 

access to wireless services for members 

of Tribes and other residents of 

underserved Tribal lands. 

2. The Spectrum over Tribal Lands 

NPRM seeks comment on a series of 

proposals that have the objective of 

promoting greater use of spectrum over 

Tribal lands. It also seeks comment on 

what Tribal lands and Wireless Radio 

Services should be subject to its 

proposals. The proposals of the 

Spectrum over Tribal Lands NPRM are 

consistent with the recommendations of 

the National Broadband Plan, see 

Federal Communications Commission, 

Connecting America: The National 

Broadband Plan, 97–98 (rel. Mar. 16, 

2010) (National Broadband Plan). In the 

Spectrum over Tribal Lands NPRM, the 

Commission makes five specific 

proposals. First, it proposes to expand 

the current Tribal licensing priority to 

Wireless Radio Services, establishing a 

licensing priority that would be 

applicable to licenses for fixed and 

mobile wireless services and available 

to qualifying Tribal entities for unserved 

or underserved Tribal lands, where such 

Tribal lands are within the geographic 

area covered by an unassigned Wireless 

Radio Services license. Second, the 

Spectrum over Tribal Lands NPRM 

seeks comment on a Tribal proposal to 

create a formal negotiation process 

under which Tribes could work with 

incumbent wireless licensees to bargain 

in good faith for access to spectrum over 

unserved or underserved Tribal lands. 

Under this proposal, a Tribal entity 

could request initiation of negotiations 

at any point in the term of a license, 

provided that the Tribal entity can 

demonstrate that the licensee failed to 

negotiate in good faith in connection 

with a previous attempt by the Tribal 

entity to negotiate. Third, the Spectrum 

over Tribal Lands NPRM seeks comment 

on a Tribal proposal that the 

Commission establish a process by 

which a qualifying Tribal entity could 

require a licensee to build or divest a 

geographic area covering unserved or 

underserved Tribal lands within its 

license area. This proposal would be 

applicable only in those situations 

where a licensee has already satisfied 

the construction requirements of a 

license. Fourth, the Spectrum over 

Tribal Lands NPRM proposes to 

establish a Tribal lands construction 

safe harbor for wireless service 

providers. Under this proposal, a 

licensee that provides a specified level 

of service to the Tribal land areas within 

the geographic area of its license would 

be deemed to have met its construction 

obligations for its entire service area. 

Fifth, the Spectrum over Tribal Lands 

NPRM explores potential modifications 

to the Commission’s existing Tribal 

lands bidding credit rules. A Tribal 

lands bidding credit is available to any 

winning bidder in a Commission 

spectrum auction that commits to 

deploying facilities and providing 

wireless service to qualifying Tribal 

lands. The Spectrum over Tribal Lands 

NPRM seeks comment on such 

modifications of the Tribal lands 

bidding credit rules as the extension of 

the current 3-year construction 

deadline. 

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18478 Federal Register / Vol. 76, No. 64 / Monday, April 4, 2011 / Proposed Rules 

II. Discussion 

3. The Commission seeks comment on 

a number of suggested approaches to 

promote improvements in the 

availability of communications services 

on Tribal lands, in part by considering 

Tribal proposals that would provide 

additional opportunities for greater 

access by Tribes to spectrum over Tribal 

lands. Three of the five proposals could 

create new opportunities for Tribes to 

gain access to spectrum through 

Wireless Radio Services licenses. The 

other two proposals are designed to 

create new incentives for licensees to 

deploy wireless services on Tribal 

lands. The Commission seeks comment 

on the following: (1) New spectrum 

access opportunities (a) A proposal to 

expand the current Tribal licensing 

priority to Wireless Radio Services, 

creating opportunities for access to 

Wireless Radio Services licenses not yet 

assigned; (b) A Tribal proposal to utilize 

the power of secondary markets, by 

creating a formal negotiation process 

under which Tribes could work with 

incumbent wireless licensees to bargain 

in good faith for access to spectrum over 

unserved or underserved Tribal lands; 

(c) A Tribal proposal to use spectrum 

lying fallow through an innovative 

build-or-divest process that would allow 

Tribes to build out in areas where 

licensees have met their construction 

requirement, but are not serving the 

Tribal lands within their service areas. 

(2) Service deployment incentives (a) A 

proposal to build on the Commission’s 

previous work in the rural context to 

establish a Tribal lands construction 

safe harbor for wireless service 

providers; (b) A proposal to make 

modifications to the Tribal lands 

bidding credit. 

4. The Commission contemplates 

extending any programs, if adopted, to 

federally-recognized American Indian 

Tribes and Alaska Native Villages and 

seeks comment on extending eligibility 

for these programs to entities owned 

and controlled by such Tribes. In 

addition, the Commission seeks 

comment on the appropriate definitions 

of Tribal lands and on the specific 

wireless services and Commission 

licensees to which all of these proposals 

could apply. 

5. In considering several processes by 

which Tribes could gain access to 

spectrum over unserved or underserved 

Tribal lands, the Commission notes that 

the National Broadband Plan suggested 

that increasing Tribal access to and use 

of spectrum would create additional 

opportunities for Tribal communities to 

obtain broadband access. See National 

Broadband Plan, 97–98. In addition, the 

proposals the Commission talks about 

are consistent with the National 

Broadband Plan’s recommendations 

that the Commission consider extending 

a Tribal licensing priority to wireless 

services, developing rules for relicensing unused spectrum to Tribes, 

and encouraging use of secondary 

market mechanisms to facilitate 

deployment of services to unserved or 

underserved Tribal areas. 

6. These proposals to provide new 

opportunities for Tribal access to 

spectrum originated in Tribal 

submissions relating to development of 

the National Broadband Plan and have 

been amplified in the context of 

subsequent proceedings the 

Commission have initiated to consider 

the National Broadband Plan’s 

recommendations. The record thus 

developed indicates that certain Tribal 

lands have historically been left behind 

in the construction of infrastructure 

critical to communications services. 

More specifically, there are assertions in 

the record that many providers have not 

deployed wired services into Tribal 

lands and that there are instances where 

wireless providers have failed to build 

facilities on Tribal lands or have not 

marketed service to Native Americans. 

The record also indicates that one path 

to successful deployment of services on 

Tribal lands is through Tribal 

engagement in direct provisioning of 

services. Some have suggested that 

underutilized spectrum on Tribal lands 

may represent an untapped resource 

that could be key to improving service 

(including broadband service) to Tribal 

consumers, but have observed that 

under current policies Tribes face 

substantial obstacles obtaining spectrum 

access. 

7. The processes to provide new 

opportunities for Tribes to seek access 

to spectrum would take into account 

conditions that have led to the 

unavailability of adequate service on 

some Tribal lands. The Commission 

seeks comment generally on those 

conditions and on whether the various 

approaches that have been suggested 

may help address them and achieve real 

benefits for Tribal consumers of wireless 

services. The proposals for spectrum 

access in general seek to make 

underutilized spectrum more available 

for use in unserved and underserved 

Tribal lands. In this regard, the 

Commission notes that proposals for 

Tribal access to spectrum may facilitate 

its broad goal of promoting increased 

use of unused or underutilized 

spectrum through secondary market 

mechanisms. Providing for additional 

mechanisms with respect to spectrum 

access in licensed services over 

unserved or underserved Tribal lands 

could significantly benefit those seeking 

such access in that there is likely to be 

a mature eco-system for devices and 

equipment where spectrum has already 

been licensed, so that new licensees and 

new customers would be able to find 

and purchase existing equipment in the 

marketplace. Ready availability of 

devices and equipment can promote 

faster and more economical buildout 

and service than would be possible 

using spectrum where new services are 

being deployed. The Commission seeks 

comment on the potential benefits of 

promoting additional mechanisms for 

Tribal access to licensed spectrum. 

8. The Commission notes that there is 

not likely to be one answer to the 

problem of improving the availability of 

communications services on Tribal 

lands. Tribes may prefer to work with 

licensees to speed construction and 

service on their Tribal lands. The 

Commission seeks comment on how 

proposals for Tribal access to spectrum 

can also provide incentives for 

construction without direct Tribal 

access to spectrum. For example, in 

discussing the possibility of re-licensing 

spectrum over unserved or underserved 

Tribal lands through a build-or-divest 

process, the Commission seeks 

comment on providing a period during 

which the licensee could construct and 

provide service to specific Tribal lands. 

The Commission invites comment on 

whether such a process may spur better 

coordination among Tribes and 

licensees. In this vein, the Commission 

also makes proposals to provide new 

incentives for construction on Tribal 

lands by non-Tribal Wireless Radio 

Services licensees. The Commission 

seeks comment on all these proposed 

approaches. 

A. Tribal Lands and Wireless Radio 

Services Subject to Proposals 

9. The Commission seeks comment on 

appropriate definitions of Tribal lands 

for the purposes of the various 

proposals contained in the Spectrum 

over Tribal Lands NPRM and seeks 

comment on which Wireless Radio 

Services should be subject to these 

proposals. 

i. Tribal Lands 

10. The Commission seeks comment 

on how the term Tribal lands or Tribal 

land should be defined for the purposes 

of the proposals discussed in the 

Spectrum over Tribal Lands NPRM. The 

Commission proposes to define Tribal 

land as any federally recognized Indian 

tribe’s reservation, Pueblo, or Colony, 

including former reservations in 

Oklahoma, Alaska Native regions 

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Federal Register / Vol. 76, No. 64 / Monday, April 4, 2011 / Proposed Rules 18479 

established pursuant to the Alaska 

Native Claims Settlement Act and 

Indian allotments. 

ii. Wireless Radio Services Subject to 

Tribal Lands Programs 

11. The Commission proposes that all 

Wireless Radio Services that are 

licensed on a geographic area basis 

would be subject to the proposals 

discussed in the Spectrum over Tribal 

Lands NPRM. These services include: 

700 MHz; Advanced Wireless Services; 

Narrowband and Broadband Personal 

Communications Service; Broadband 

Radio Service and Educational 

Broadband Service; 2.3 GHz Wireless 

Communications Service; 1670–1675 

MHz; 1392–1395 MHz; 1432–1435 MHz; 

and 800 MHz and 900 MHz Specialized 

Mobile Radio. Licensees in the 800 MHz 

Cellular service are subject to licensing 

rules that permit third parties to acquire 

and provide service to unserved areas. 

800 MHz Cellular licenses and other 

site-based services would not be subject 

to these proposals. The Commission 

invites comment on whether each of 

these services should be subject to the 

proposals. The Commission also seeks 

comment specifically on whether to 

subject the Educational Broadband 

Service to these changes at this time. 

The Commission asks commenters to 

address whether it should either 

proceed with including EBS among the 

Wireless Radio Services subject to 

Tribal lands programs or await 

Commission action addressing Tribal 

issues in the EBS proceeding. The 

Commission seeks comment on whether 

to use different licensing models for 

certain services, should they be subject 

to different treatment or exclusion from 

any of the proposals. Are there other 

wireless services that should be 

included? 

12. The Commission proposes that, 

should it decide in the future to allocate 

or establish new wireless services, those 

services would be subject to any new 

rules that might be established in this 

proceeding. The Commission seeks 

comment on this proposal. 

B. Definitions for Proposals on Tribal 

Access to Spectrum 

13. The Spectrum over Tribal Lands 

NPRM discusses three proposals for 

processes that would provide new 

opportunities for Tribes to gain access to 

spectrum through Wireless Radio 

Services licenses. In particular the 

Commission proposes a Tribal licensing 

priority and discusses Tribal 

suggestions for additional processes that 

could provide a path by which Tribal 

entities could gain access to spectrum 

licenses with respect to geographic areas 

covering their Tribal lands that are 

unserved or underserved as these terms 

are defined for these purposes. 

14. The Commission addresses 

definitions to assist in the potential 

implementation of all three processes 

for (1) qualifying Tribal entities eligible 

for these spectrum access opportunities, 

(2) unserved and underserved Tribal 

lands, and (3) the boundaries of the 

geographic area within a license to 

which the proposals would apply. 

i. Eligibility and Legal Authority for 

Tribal Access to Spectrum 

Opportunities 

15. The Commission proposes that a 

Tribal licensing priority should be 

available to qualifying Tribal entities as 

it defines them and seeks comment on 

the application of this definition to the 

Tribal proposals for spectrum access 

processes. A qualifying Tribal entity for 

these purposes would be an entity 

designated by the Tribal government or 

governments having jurisdiction over 

particular Tribal land for which the 

spectrum access is sought. The 

Commission proposes that only the 

following may be designated as 

qualifying Tribal entities: (1) Tribes; (2) 

tribal consortia; (3) entities that are 

more than 50 percent owned and 

controlled by a Tribe or Tribes. This is 

consistent with Commission rules 

governing the Tribal priority in the 

broadcast radio licensing context. The 

Commission proposes to use principles 

of control similar to the principles set 

forth in its part 1 rules on attribution for 

purposes of determining eligibility for 

designated entity benefits. The 

Commission seeks comment on this 

definition. In particular, the 

Commission seeks comment on whether 

it should limit eligibility for these 

programs to the Tribal entities that have 

a geographical connection to the area for 

which they seek spectrum access. 

16. In proposing these eligibility 

requirements, the Commission 

recognizes that the legal foundation for 

providing opportunities to Tribes for 

access to spectrum is based on the 

federal government’s trust relationship 

with Tribal governments. 

17. The unique trust relationship 

between the Commission and Tribes 

provides a legal basis for the existing 

Tribal priority for broadcast radio 

licenses. The Commission believes that 

this trust relationship likewise justifies 

extension of the Tribal priority to 

wireless licenses and seeks comment on 

its application to the other potential 

spectrum access opportunities. 

Establishing processes that would 

provide Tribes with increased 

opportunities for access to spectrum 

over unserved or underserved Tribal 

lands would also be consistent with a 

number of public interest objectives 

with regard to Tribal lands. The 

Commission also believes that these 

proposals would satisfy the relevant 

constitutional analysis because any 

proposed benefits would be granted to 

Tribes and their members not as a 

discrete racial group, but, rather, as 

members of quasi-sovereign tribal 

entities whose lives and activities are 

governed by the Bureau of Indian 

Affairs in a unique fashion. 

18. While the Commission utilizes 

different processes to apply the 

requirements of section 307(b) of the 

Communications Act in licensing 

various broadcast services and in 

licensing Wireless Radio Services, both 

the existing Tribal priority and the 

spectrum access proposals the 

Commission discusses are intended to 

achieve similar goals of extending 

service to those on Tribal lands. The 

Commission seeks comment on the 

constitutional and statutory bases for 

adoption of a Tribal priority for Wireless 

Radio Service licenses. The Commission 

also invites comment on whether these 

authorities would support adoption of 

the Tribal proposals to provide new 

spectrum access opportunities and 

whether any other constitutional or 

statutory considerations should be 

addressed in its analysis of those 

proposals. 

19. The Commission proposes to base 

any determinations of control using the 

existing attribution rules that it 

currently applies in the context of 

making determinations concerning 

eligibility for designated entity benefits 

for licenses assigned by auction as 

provided in part 1, subpart Q of the 

Commission’s rules. Using policies that 

are already being utilized in the part 1, 

subpart Q attribution rules for purposes 

of determining eligibility for a Tribal 

priority for Wireless Radio Service 

licenses will ensure that applicants and 

licensees will be subject to uniform 

requirements for the calculation of 

ownership, control and affiliation 

interests. The Commission seeks 

comment on whether attribution rules 

for determining eligibility as a 

qualifying Tribal entity should take into 

account agreements between Tribal 

entities and non-Tribal entities that may 

give rise to attribution of interests under 

the existing subpart Q rules, such as 

management and service agreements. 

Should there be any exclusions 

provided in the attribution rules for this 

purpose based upon any unique 

ownership and control issues associated 

with Tribal governments and Tribal 

entities? The Commission seeks 

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18480 Federal Register / Vol. 76, No. 64 / Monday, April 4, 2011 / Proposed Rules 

comment on this approach for its 

proposed Tribal priority as well as in 

connection with the Tribal proposals for 

other spectrum access processes. 

ii. Defining Unserved or Underserved 

Tribal Lands 

20. The Commission proposes that a 

Tribal priority would be available only 

with respect to Tribal land areas that are 

unserved or underserved and seeks 

comment on using the same definition 

in considering the Tribal proposals for 

spectrum access opportunities. The 

Commission proposes to define as 

unserved or underserved those Tribal 

lands where there is Wireless Radio 

Services coverage to not more than 65 

percent of the population of the Tribal 

land area. The Commission invites 

comment on this proposed definition 

and seeks comment on alternatives. 

21. Each of the proposals for spectrum 

access opportunities is intended to 

create greater incentives for wireless 

deployment in such unserved or 

underserved areas. The Commission 

believes that defining as unserved or 

underserved those Tribal lands with 

Wireless Radio Services coverage to not 

more than 65 percent of the population 

will identify the places most in need of 

additional efforts to expand the 

availability of wireless services. The 

Commission notes that for purposes of 

its Tribal Land Bidding Credit program, 

it uses a threshold wireline telephone 

subscribership rate of 85 percent. 

Should the Commission define 

unserved or underserved as coverage by 

Wireless Radio Services to less than or 

equal to 85 percent of the population as 

used in the context of its Tribal Land 

Bidding Credit program? Alternatively 

should the Commission define unserved 

or underserved as coverage that is a 

specified percentage below some other 

standard of coverage? The Commission 

seeks comment on these alternatives for 

defining unserved or underserved. 

22. Some wireless services are 

licensed on a site-specific basis, such as 

800 MHz cellular. Such site-based 

licensees are required to meet 

applicable technical standards by 

maintaining certain levels of signal 

strength throughout their entire service 

contours. Thus, unserved or 

underserved areas do not arise within 

the contours of licenses that are 

authorized on a site-specific basis. For 

this reason, the Tribal priority and other 

spectrum access opportunities would 

not apply to wireless services that are 

licensed on a site-specific basis. 

iii. Defining Geographic Area for Which 

Tribal Access to Spectrum 

Opportunities May Be Available 

23. The Commission proposes that a 

Tribal priority would be available with 

respect to a geographic area defined by 

the boundaries of the Tribal land 

associated with the Tribal entity seeking 

the access. The Commission seeks 

comment on this proposal. More 

specifically, the Commission seeks 

comment on the interrelationship of 

these proposed boundaries with its 

proposal that the Tribal priority would 

be available only with respect to Tribal 

land areas that are unserved or 

underserved. To the extent that there is 

some coverage within the Tribal land 

area, should the boundaries for the 

Tribal spectrum access be defined by 

the extent of that service? The 

Commission also seeks comment on 

applying this definition to the Tribal 

proposals for spectrum access 

opportunities. 

24. The Commission also seeks 

comment on whether the boundaries of 

the geographic area for a Tribal priority 

should include unserved or underserved 

near-reservation areas and other areas 

beyond the boundaries of Tribal lands. 

Would this assist in making wireless 

services available to Tribal members 

that may reside in areas just outside of 

a tribal reservation? If such nearreservation areas were included, the 

Commission proposes that any such 

areas would be comprised of U.S. 

Census block areas. Using Census block 

boundaries will provide more certainty 

for all parties and will allow the 

Commission to more easily administer 

such licenses in its existing licensing 

systems. Should the Commission 

impose a limit on the amount of such 

near-Tribal land areas that might be 

included? For instance, should such 

areas be limited to comprising 25 

percent or less of the total geographic 

area for which spectrum access is 

sought? The Commission seeks 

comment on whether the Commission 

should include unserved or underserved 

near-reservation areas in defining the 

relevant geographic area for the Tribal 

proposals for spectrum access processes. 

25. Finally, the Commission seeks 

comment on whether carving out a 

geographic area based on its proposed 

boundaries would give rise to 

coordination and interference issues 

with neighboring licensees. How can the 

Commission address any technical, 

interference or other issues that may be 

raised by this proposal? 

C. Tribal Licensing Priority for 

Unassigned Wireless Radio Services 

Licenses 

26. The Commission proposes to 

establish a licensing priority that would 

be applicable to licenses for fixed and 

mobile wireless services and available 

to qualifying Tribal entities for unserved 

or underserved Tribal lands where such 

Tribal lands are within the geographic 

area covered by an unassigned Wireless 

Radio Services license. In offering this 

proposal the Commission notes the 

significant record support for an 

expanded Tribal spectrum priority, 

which the National Broadband Plan 

recommended for the consideration of 

the Commission. In making this 

proposal, the Commission draws upon 

its recent adoption of a Tribal priority 

in the context of licensing of broadcast 

radio services. Under that policy, 

federally recognized Tribes, Tribal 

consortia, and entities that are 51 

percent or more owned by a Tribe or 

Tribes, are entitled to a priority under 

section 307(b) of the Communications 

Act of 1934, as amended, when 

proposing FM allotments, as well as 

applying for AM and noncommercial 

educational FM stations, that would 

primarily serve Tribal lands. Where a 

federally recognized American Indian 

Tribe or Alaska Native Village entity 

applies for or proposes a broadcast 

station or allotment and meets the 

requirements for a Tribal priority, its 

application or proposal in most cases 

will receive a dispositive preference 

under section 307(b), and thus may 

prevail based on a threshold 

determination under that statutory 

provision. In the case of a proposal for 

new AM commercial service, for 

example, such a dispositive preference 

would result in the application 

proceeding to processing without 

competitive bidding. In the case of 

proposals for new noncommercial 

educational FM stations, the dispositive 

preference would result in the tentative 

selection of the applicant receiving the 

Tribal priority, without a fair 

distribution analysis or point system 

comparison. 

27. The Commission seeks comment 

on whether making available a Tribal 

priority would facilitate access by Tribal 

entities to spectrum over Tribal lands. 

The Commission also seeks comment on 

whether any aspect of its proposed 

definitions should be modified 

specifically with respect to their 

application to its proposed Tribal 

licensing priority. 

28. The Commission seeks comment 

on how to address a number of issues 

with respect to implementation of such 

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a Tribal priority in the context of 

Wireless Radio Services licenses. 

i. Process and Licensing Framework for 

Awarding Tribal Priority 

29. The Commission anticipates that 

it would establish a process for 

licensing wireless services pursuant to a 

Tribal priority that would generally 

avoid the opportunity for mutually 

exclusive applications. While section 

309(j)(1) of the Communications Act 

requires the Commission to use auctions 

whenever it accepts mutually exclusive 

applications for an initial license, 

section 309(j)(6)(E) provides that the 

auction requirement of section 309(j)(1) 

does not relieve the Commission of the 

obligation in the public interest to use 

various means to avoid mutual 

exclusivity. Section 309(j)(6)(E) 

provides that the Commission may use 

engineering solutions, negotiation, 

threshold qualifications, service 

regulations and other means to avoid 

mutual exclusivity in licensing 

processes where it determines that it is 

in the public interest to do so. Because 

the Commission anticipates that there 

generally would be only a single 

qualifying Tribal entity with respect to 

any particular Tribal land area, the 

Commission believes that the public 

interest would be served by establishing 

a licensing scheme that would avoid 

mutually exclusive applications. Should 

mutually exclusive applications from 

Tribal entities be accepted under any 

Tribal priority licensing process that the 

Commission establishes, the 

Commission proposes to resolve them 

through competitive bidding. The 

Commission seeks comment on this 

analysis. 

30. The Commission seeks comment 

on alternative ways to provide 

opportunities for eligible Tribal entities 

to file applications seeking a Tribal 

priority for licenses covering specific 

Tribal lands within geographic licensing 

areas in established Wireless Radio 

Services. One approach would be to 

provide a Tribal priority application 

window after the Commission has 

released a Public Notice proposing to 

offer specific initial licenses in a 

spectrum auction but before the window 

for filing auction applications opens. 

Alternatively, the Commission could 

provide a Tribal priority application 

window prior to any announcement of 

specific licenses to be offered in a 

spectrum auction. Assuming there is 

only one Tribal priority application 

accepted for a particular license, the 

portion of the license covering the 

Tribal land would not be offered at 

auction. The Commission invites 

comment on the relative merits and 

drawbacks of these alternative 

application approaches. In light of data 

regarding limited access to 

communications services in Tribal 

areas, the Commission anticipates that, 

under either approach, it would 

undertake outreach efforts, in addition 

to Public Notices, in order to widely 

disseminate information and maximize 

opportunities for Tribes to benefit from 

any new licensing priority program. 

31. The Commission anticipates that 

if a Tribal priority is awarded, the Tribal 

entity will have to meet all legal, 

technical and financial requirements to 

qualify for a license in the specific 

Wireless Radio Service. In addition, the 

Commission proposes that all 

construction and other conditions of the 

relevant license would apply as if the 

license were awarded through the 

process normally applicable for the 

specific service. The Commission seeks 

comment on these proposals. 

D. Tribal Proposals for Processes To 

Provide Access to Spectrum Licensed to 

Third Parties 

32. The relatively low rate of wireless 

coverage on Tribal lands suggests that 

various Commission methods of 

promoting the deployment of wireless 

services including service-specific 

construction requirements and the 

secondary markets mechanisms may not 

be sufficient to provide the incentives 

necessary to ensure the provision of 

wireless services to Tribal lands. These 

proposals have been crafted to address 

the unique communications-related 

circumstances faced by those living and 

working on unserved and underserved 

Tribal lands, and do not more generally 

address issues of spectrum access and 

secondary markets beyond Tribal lands. 

The Commission seeks any additional 

information that would help us better 

understand and address the problems 

faced by those on Tribal lands in 

obtaining access to wireless services, 

and seek comment on all aspects of 

these proposals. The Commission also 

invites license holders to comment on 

reasons that they may not be taking 

advantage of existing regulatory 

provisions that enable them to allow 

other parties to access and use spectrum 

in areas under their license that they do 

not expect to use themselves. 

33. The Commission discusses two 

proposals offered by Tribes for 

processes that could provide new 

opportunities for Tribal access to 

spectrum for fixed and mobile wireless 

services that is licensed to third parties. 

The first of these proposals seeks to 

address the challenges that Tribes have 

alleged they have had in encouraging 

wireless licensees to negotiate potential 

secondary market transactions involving 

their licensed spectrum over Tribal 

lands. It would create a formal 

negotiation process through which a 

Tribe that had been refused good faith 

negotiations regarding a secondary 

markets transaction within a wireless 

licensee’s geographic area of license 

could require a licensee to enter into 

such negotiations. The second proposal 

aims to combat the hurdle some Tribes 

have encountered where wireless 

licensees holding spectrum over Tribal 

lands have met their construction 

requirements, but have not built out 

networks to provide service to Tribal 

lands within their geographic area of 

license. It would enable a Tribe to 

require the licensee either to build or to 

divest spectrum in the relevant 

geographic area at any time after the 

licensee has satisfied the construction 

requirements applicable to the 

particular license. The Commission is 

seeking comment on making the two 

opportunities it described here available 

only to qualifying Tribal entities with 

respect to geographic areas covering 

Tribal lands that are unserved or 

underserved. The Commission seeks 

comment on this proposed application 

of the definition. 

34. One way to implement each of 

these approaches would be for the 

qualifying Tribal entities to initiate the 

specific process for seeking spectrum 

access with respect to assigned licenses 

for Wireless Radio Services by the filing 

of a Notice of Intent with the 

Commission and service of the Notice of 

Intent on the licensee. Such a Notice of 

Intent would have to provide the 

necessary information to demonstrate 

the prerequisites for the specific process 

sought to be initiated. The Commission 

would need information indicating that 

the filer is a qualifying Tribal entity, as 

well as information demonstrating that 

the relevant Tribal land is unserved or 

underserved in accordance with the 

definition and information defining the 

geographic boundaries of the area over 

which spectrum access is sought. The 

Commission seeks comment on using 

such a Notice of Intent. The 

Commission also seeks comment on 

providing the existing licensee with 

thirty days to provide information to 

rebut the assertion that the Tribal land 

in question is unserved or underserved. 

Would such a process for determining 

whether a Tribal land area meets this 

service threshold be sufficient? 

35. The Commission seeks comment 

on a number of specific issues with 

respect to implementation of the Tribal 

proposals for providing spectrum access 

opportunities through good faith 

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negotiations and build-or-divest 

processes. 

i. Good Faith Negotiations 

36. The record contains Tribal 

proposals that the Commission adopt 

additional mechanisms for taking 

advantage of the secondary market 

opportunities to improve service 

deployment. The proposal for a good 

faith negotiation process is intended to 

address difficulties that Tribes have 

detailed in securing access to spectrum 

rights held by existing wireless 

licensees whose licenses cover Tribal 

land areas. Tribal entities have long 

argued that they would provide 

coverage to unserved and underserved 

Tribal lands if they could get access to 

the spectrum, but that they have 

encountered a number of difficulties in 

initiating and completing such 

negotiations. 

37. Under the proposed process, 

Tribes could leverage existing secondary 

market post-licensing opportunities to 

secure access to spectrum over unserved 

and underserved Tribal lands through 

license partitioning or through spectrum 

leasing. These secondary market 

opportunities could involve leasing all 

or part of a licensee’s spectrum rights or 

partitioning a geographic portion of a 

license for assignment to another entity. 

Robust and efficient secondary markets 

increase the availability of unused or 

unneeded spectrum capacity and may 

enable new users to deploy services 

where, for a number of possible reasons, 

the original licensee did not. The 

Commission seeks comment on whether 

such a good faith negotiations process 

would help provide Tribes with access 

to spectrum licensed to other parties 

and lead to better availability of 

Wireless Radio Services for consumers 

on Tribal lands. 

38. One way to implement such a 

proposal would be to create a formal 

negotiation process that would enable a 

qualifying Tribal entity to require a 

licensee to enter into good faith 

negotiations regarding a secondary 

markets transaction with respect to any 

geographic portion of the licensee’s 

license area that is covered by unserved 

or underserved Tribal lands. The 

Commission seeks comment on 

whether, if adopted, this process would 

permit a qualifying Tribal entity to file 

a Notice of Intent to initiate a good faith 

negotiations process at any time during 

the license term, provided that the filing 

Tribal entity can demonstrate that in 

connection with a previous attempt by 

the Tribe to negotiate, the licensee failed 

to negotiate in good faith. The 

Commission seeks comment generally 

on such a process and more specifically 

on whether modifications of any aspect 

of the generally applicable proposed 

definitions should be made. The 

Commission also seeks comment on 

requiring that a Notice of Intent 

initiating this process would have to 

include information about a previous 

negotiation attempt in which the Tribal 

entity believes that the licensee did not 

bargain in good faith. Would such a 

requirement raise issues regarding 

confidential or proprietary information? 

If so, what protections could the 

Commission establish to address those 

issues? 

39. The Commission also seeks 

comment on what the contours of any 

formal negotiating process, if adopted, 

should be. Should the Commission 

adopt standards similar to those 

currently employed by the Commission 

in the context of retransmission 

consent? Under such a standard, to 

implement the good faith negotiation 

requirement, the Commission could use 

a two-part test for good faith. See 

Implementation of Satellite Home 

Viewer Improvement Act of 1999, 

Retransmission Consent Issues: Good 

Faith Negotiation and Exclusivity, First 

Report and Order, 65 FR 15559, March 

23, 2000, amended on reconsideration 

in part by Implementation of Satellite 

Home Viewer Improvement Act of 1999, 

Retransmission Consent Issues: Good 

Faith Negotiation and Exclusivity, Order 

on Reconsideration, 66 FR 48219, 

September 19, 2001. The first part of the 

test would consist of a brief, objective 

list of negotiations standards. Such 

standards could include: First, a 

licensee may not refuse to negotiate 

with a Tribal entity whose Tribal lands 

are within its service area but to which 

it has not deployed service. Second, a 

licensee must appoint a negotiating 

representative with authority to bargain 

on partitioning and spectrum leasing 

issues. Third, a licensee must agree to 

meet at reasonable times and locations 

and cannot act in a manner that would 

unduly delay the course of negotiations. 

Fourth, a licensee may not put forth a 

single, unilateral proposal. By this, the 

Commission envisions that a licensee 

would have to be willing to consider 

and discuss alternative terms or 

counter-proposals, as it would appear 

that ‘‘take it or leave it’’ bargaining 

without consideration of reasonable 

alternatives could be found to be 

inconsistent with an affirmative 

obligation to negotiate in good faith. 

Fifth, a Tribal entity, in responding to 

an offer proposed by a licensee, must 

provide considered reasons for rejecting 

any aspect of the licensee’s offer. 

Finally, if an agreement is reached, a 

licensee must agree to execute a written 

agreement that sets forth the full 

agreement, between the licensee and the 

Tribal entity. The Commission seeks 

comment on this potential approach 

should a formal negotiation process be 

adopted. 

40. The Commission seeks comment 

on whether a proposed good faith test 

should include a totality of the 

circumstances standard. This approach 

would enable a Tribal entity to present 

facts to the Commission which, even 

though they do not allege a violation of 

the objective standards, given the 

totality of the circumstances constitute 

a failure to negotiate in good faith. The 

complainant would bear the burden of 

proof when making a good faith 

complaint. 

41. The Commission seeks comment 

on the merits and drawbacks of it using 

such a good faith test for the proposed 

process. Should good faith negotiations 

be concluded within any specified time 

period? If so, what would be a 

reasonable time period? Should there be 

a requirement that a Tribe availing itself 

of the process make a showing that it 

has the financial wherewithal to fulfill 

its end of the proposed transaction? 

42. The Commission also seeks 

comment on whether there are 

incentives the Commission could 

provide for conclusion of a license 

partitioning or spectrum leasing 

transaction. For instance, would it be 

beneficial to such a process if the 

Commission were to provide any 

licensee that leases spectrum rights to a 

qualifying Tribal entity with additional 

credit reflecting such coverage toward 

meeting its overall construction 

requirement for the license? Are there 

other incentives that might be 

beneficial? 

43. Finally, the Commission seeks 

comment on whether any partitioning or 

spectrum leasing transaction that may 

result from a good faith negotiations 

process would be subject to all of the 

Commission’s rules applicable to such 

transactions as well as all of the rules 

applicable to the relevant Wireless 

Radio Service, including rules regarding 

construction requirements. 

ii. Build-or-Divest Process 

44. The record also reflects Tribal 

proposals that the Commission establish 

a process by which a qualifying Tribal 

entity could require a licensee to build 

or divest a geographic area covering 

unserved or underserved Tribal lands 

within its license area. The notion is 

that such a process might be available 

where an existing licensee has satisfied 

the applicable construction 

requirements for the license yet Tribal 

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land areas remain unserved or 

underserved under the Commission’s 

proposed definition. This proposal is 

intended to provide Tribal governments 

with a process under which they could 

expedite service to their Tribal lands. 

The Commission seeks comment on the 

efficacy of this approach. 

45. The Commission seeks comment 

on the best way to implement such a 

process if adopted. For example, the 

Commission seeks comment on 

whether, if adopted, this process would 

permit a qualifying Tribal Entity to file 

a Notice of Intent to initiate a build-ordivest process only after the relevant 

licensee had met the applicable 

construction requirement. Would such a 

Notice of Intent for this purpose 

include, in addition to the information 

already discussed, the date on which 

the Commission accepted the licensee’s 

notice of construction demonstrating 

that it has satisfied its final construction 

requirement for the license in which the 

unserved or underserved Tribal land is 

located? The Commission also seeks 

comment on what information should 

be included in a Notice of Intent filed 

in this context. 

46. The Commission seeks comment 

on whether, after the filing of a Notice 

of Intent by a Tribe initiating a build-ordivest process, if adopted, the licensee 

should have to indicate whether it 

would agree (a) to extend coverage to 

the Tribal land(s), or (b) relinquish its 

authorization for the unserved or 

underserved Tribal land within the 

geographic area of its license. Should 

the authorization of any licensee that 

chooses to extend coverage and fails to 

do so within the time allowed be 

terminated with respect to the 

geographic area covered by the unserved 

or underserved Tribal land? The 

Commission also seeks comment on 

whether the establishment of a build-or 

divest process would promote coverage 

in these areas, and whether the rule 

should be prospective only or apply to 

licenses already granted as well. 

47. The Commission seeks comment 

on the particular construction or 

performance requirements that might be 

imposed on any licensee that opts for 

extending coverage to unserved or 

underserved Tribal lands under the 

build-or-divest process. The 

Commission would want to establish 

performance criteria that would 

reasonably result in timely and 

meaningful service coverage to unserved 

or underserved tribal areas, but that also 

acknowledges the difficulties of 

deploying facilities in often remote and 

rural areas. 

48. In line with the Commission’s goal 

of expediting wireless coverage to 

unserved and underserved 

communities, the Commission seeks 

comment on a requirement that a 

licensee that opts to provide coverage 

under the build-or-divest process must 

provide the specified level of service 

within three years of the filing of a 

Notice of Intent. A relatively short 

period would promote the availability of 

service to residents of the affected tribal 

area. Alternatively, given the wide 

variety of geographic sizes and 

population distributions of Tribal lands 

nationwide, the Commission seeks 

comment on whether the Commission 

should adapt the coverage requirements 

and deadlines to the particular tribal 

population or geography. Are there any 

particular special circumstances that, if 

encountered, would merit a longer time 

period? Would a shorter time period be 

appropriate in particular situations? Are 

there any measures the Commission 

should consider that might facilitate 

coverage to Tribal lands under the 

build-or-divest process? 

49. The Commission also seeks 

comment on the technical rules to 

which a license acquired through the 

build-or-divest process might be subject. 

If the Commission were to determine 

that the Commission should apply the 

additional tribal construction 

requirement to current licensees, the 

Commission seeks comment on whether 

the existing technical rules of such 

services are sufficient to protect the 

incumbent and the Tribal entity from 

interference, or whether there should be 

additional technical protections. 

Depending on the size and geography of 

the particular Tribal land, as well as the 

proximity of Tribal and non-Tribal sites 

to the shared boundary and to 

populated areas of the other licensee’s 

geographic area, it may be possible that 

existing technical rules are insufficient 

to allow incumbent and Tribal licensees 

to operate effectively. Existing technical 

rules may, in some circumstances, 

unnecessarily restrict the types of 

services that may be deployed in a given 

Tribal area. The Commission seeks 

comment regarding the specific 

technical rights and protections that 

should be applied. The Commission 

seeks comment on specific signal 

strengths to be applied at the shared 

boundary, and other provisions that will 

protect the incumbent and tribal 

licensee while also permitting both to 

serve their licensed areas effectively. 

The Commission proposes that, for 

future wireless services, the 

Commission should address these 

technical issues in each service-specific 

rulemaking proceeding. The 

Commission invites commenters to 

address these technical issues with 

respect to specific Wireless Radio 

Services and particular Tribal land 

areas. The Commission also requests 

that commenters identify those 

technical issues or criteria that they 

believe would apply to Tribal areas 

universally, or that should be applied to 

particular tribal areas regardless of the 

wireless service involved. 

50. Under the Tribal proposal for a 

build-or-divest process, the geographic 

area covered by the unserved or 

underserved Tribal land would become 

available for licensing to the qualifying 

Tribal entity filing the Notice of Intent 

if a licensee opts to relinquish its 

authorization rather than extend 

coverage or if it opts to extend coverage 

and fails to do so within the time 

allowed. The Commission seeks 

comment on requiring a Tribal entity to 

submit an application for the available 

authorization to demonstrate its 

qualifications to hold a Commission 

license. 

51. The Commission seeks comment 

on applying construction requirements 

should an unserved Tribal geographic 

area be relicensed to a Tribal entity and 

asks how to define those requirements. 

The Commission seeks comment on 

whether it should require a Tribal 

licensee to provide the level of service 

that would otherwise be required of a 

licensee opting to extend coverage 

within three years of the grant of its 

license covering the Tribal land areas. 

The Commission seeks comment on 

possible alternatives that might take into 

account these and any relevant factors 

related to a new Tribal licensee’s ability 

to deploy service. 

52. The Commission also seeks 

comment on whether to allow transfer 

of or lease of spectrum rights with 

respect to all or part of the area licensed 

to the Tribal entity through the build-ordivest process. Should the Commission 

allow a qualified Tribal licensee to enter 

into any secondary market transaction 

involving any portion of the licensed 

area to a third party that does not meet 

the eligibility standards for a qualifying 

Tribal applicant? Should the 

Commission take any action in this 

regard to promote the objective of Tribal 

self-provisioning? 

53. In the event that commenters 

support the ability by the Tribal licensee 

to enter into secondary market 

transactions with respect to all or a 

portion of its licensed area, the 

Commission requests that commenters 

specify the conditions that would apply. 

For example, should the Commission 

permit the licensee to transfer all or part 

of its license once it has fulfilled its 

required service and construction 

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obligations, or otherwise ensured that a 

certain level of service is being provided 

over Tribal lands? Would it be 

appropriate to allow secondary market 

transactions if the Tribal licensee 

indicates it is unlikely that it will be 

able to fulfill its construction 

obligations and that a third party is 

willing to take the license and complete 

construction by the appropriate 

deadline? 

54. The Commission seeks comment 

on the effect of any such requirements 

on the ability of Tribal licensees to enter 

into contracts with third parties to build 

and operate wireless systems. Such 

contracts may be the most effective way 

for Tribes to obtain access to industry 

knowledge and equipment financing. 

The Commission seeks comment on 

whether and to what extent the 

Commission should consider leasing 

arrangements between qualifying Tribal 

entities and non-Tribal entities to confer 

control that would disqualify the Tribal 

entity. 

E. Tribal Lands Construction Safe 

Harbor 

55. The Commission proposes to 

establish for licenses in the Wireless 

Radio Services a Tribal lands 

construction safe harbor provision. 

Under this proposal, a licensee that 

provides a specified level of service to 

the Tribal land areas within the 

geographic area of its license would be 

deemed to have met its construction 

obligations for its entire service area. 

The Commission seeks comment on this 

proposal. In particular would such a 

safe harbor create an incentive for 

licensees to serve Tribal lands by 

providing an alternative method to meet 

construction obligations with respect to 

any license that includes Tribal lands 

within the geographic area? 

56. This proposed Tribal lands 

construction safe harbor would 

resemble current Commission rules that 

permit some licensees in some services 

to satisfy their construction 

requirements by providing service to 

rural areas. For example, the 

Commission’s rules provide that a 

Broadband Radio Service or Educational 

Broadband Service licensee has met safe 

harbor by, among other things, 

deploying a certain level of service to 

rural areas. For mobile service, this level 

is defined as coverage being deployed to 

at least 75 percent of the geographic area 

of at least 30 percent of the rural areas 

within the licensed area. 

57. The Commission seeks comment 

on the specific construction requirement 

that must be met with respect to Tribal 

lands within the geographic area of a 

license in order to qualify for the 

proposed safe harbor. Specifically, for 

licenses with a substantial service 

requirement, the Commission seeks 

comment on providing a Tribal lands 

safe harbor for satisfaction of this 

requirement to a licensee that deploys 

coverage to at least 75 percent of the 

geographic area of the Tribal lands 

within the geographic area of its license 

area. The Commission seeks comment 

on what requirements to impose with 

respect to licenses that are subject to 

other forms of construction 

requirements. What other specific 

requirements should a Tribal lands safe 

harbor have? If such a safe harbor is 

established, what safeguards should be 

adopted to prevent licensees from 

exploiting the safe harbor? For example, 

should a licensee be permitted to avail 

itself of the proposed safe harbor if the 

tribal area does not meet a minimum 

geographic size or have a population 

that is at least ten percent of the area or 

population of the market as a whole? 

58. The Commission also seeks 

comment on whether it should apply a 

construction multiplier rather than, or 

in addition to, a safe harbor as an 

incentive to serve Tribal lands. A 

licensee would be permitted to count 

the population or geographic coverage it 

has deployed to Tribal lands multiplied 

by a set percentage towards satisfaction 

of the licensee’s construction 

requirement for the entire license area. 

The Commission seeks comment on the 

appropriate construction multiplier that 

would serve as an incentive for Tribal 

area buildout, as well as ensure 

adequate construction in non-Tribal 

areas of a licensed geographic area. 

F. Potential Modification of Tribal 

Lands Bidding Credit Program 

59. In a continuing effort to provide 

greater economic incentives for bringing 

service to Tribal lands, the Commission 

also seeks to explore potential 

modifications to its existing Tribal lands 

bidding credit rules. This is consistent 

with the record and with the 

recommendations of the National 

Broadband Plan. A Tribal lands bidding 

credit (TLBC) is available to any 

winning bidder in a Commission 

auction that commits to deploying 

facilities and providing wireless 

services to qualifying Tribal lands. 

Qualifying Tribal lands are defined as 

federally-recognized tribal areas that are 

either unserved by any 

telecommunications carrier or that have 

a telephone service penetration rate of 

85 percent or less. The Tribal lands 

bidding credit is in addition to any 

other bidding credit for which the 

applicant qualifies, such as the small 

business bidding credit. 

60. A winning bidder that meets the 

requirements for a TLBC is entitled to 

the amount of $500,000 for the first 200 

square miles (518 square kilometers) of 

qualifying Tribal lands, and $2,500 for 

each additional square mile (2.590 

square kilometers) above the initial 200 

square miles (518 square kilometers) of 

qualifying Tribal lands. The TLBC is 

capped, depending on the amount of the 

winning bid: for winning bids less than 

or equal to $1 million, the cap is 50% 

of the amount bid; for winning bids 

between $1 million and $2 million, the 

cap is $500,000; and for winning bids in 

excess of $2 million, the cap is 35% of 

the amount bid. 

61. A licensee receiving a TLBC is 

subject to a construction performance 

requirement. The licensee has three 

years from the grant of its license to 

construct and operate a wireless system 

to cover at least 75 percent of the tribal 

population within its market. At the end 

of this three-year period, the licensee 

must notify the Commission that it has 

met the 75 percent buildout requirement 

with regard to the Tribal lands for 

which the credit was awarded. If a 

licensee fails to make an adequate 

showing that it has met the 75 percent 

benchmark, it will be required to repay 

the bidding credit, plus interest, within 

30 days after the conclusion of the 

construction period. 

62. One possibility would be to 

extend the TLBC program’s current 

3-year construction deadline. Such an 

extension would have the advantage of 

providing additional time for a licensee 

to construct and operate a wireless 

system. However, it could also delay 

deployment of service to those residents 

of Tribal lands who are intended to 

benefit from the TLBC. The Commission 

seeks comment on this possible 

extension of the construction deadline. 

63. The Commission could also 

consider extending the time frame to 

complete the certification process. This 

might encourage more bidders to seek 

the credit than would otherwise do so. 

The Commission invites specific 

comment on these proposals and their 

potential costs and benefits. The 

Commission also encourages 

commenters to offer any additional 

proposals that they may have for 

improving the TLBC program. 

64. Are there other possible changes 

the Commission could make to the 

TLBC program that may more effectively 

promote service to Tribal lands? For 

instance, are there ways in which to 

promote coordination between the 

TLBC recipient and the relevant Tribal 

government that could provide 

additional incentives for service 

deployment? 

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III. Procedural Matters 

A. Ex Parte Rules—Permit-But-Disclose 

65. This is a permit-but-disclose 

notice and comment rulemaking 

proceeding. Ex parte presentations are 

permitted, except during the Sunshine 

Agenda period, provided they are 

disclosed pursuant to the Commission’s 

rules. 

B. Initial Regulatory Flexibility Analysis 

66. As required by the Regulatory 

Flexibility Act (RFA), the Commission 

has prepared this present Initial 

Regulatory Flexibility Analysis (IRFA) 

of the possible significant economic 

impact on a substantial number of small 

entities by the policies and rules 

proposed in the Spectrum over Tribal 

Lands NPRM. Written public comments 

are requested on this IRFA. Comments 

must be identified as responses to the 

IRFA and must be filed by the deadlines 

for comments on the first page of the 

Spectrum over Tribal Lands NPRM 

summary. The Commission will send a 

copy of the Spectrum over Tribal Lands 

NPRM, including this IRFA, to the Chief 

Counsel for Advocacy of the Small 

Business Administration (SBA). In 

addition, the Spectrum over Tribal 

Lands NPRM and IRFA (or summaries 

thereof) will be published in the Federal 

Register. 

i. Need for, and Objectives of, the 

Proposed Rules 

67. The Spectrum over Tribal Lands 

NPRM seeks comment on proposals that 

would promote increased use of 

spectrum over Tribal lands. The 

proposals in the Spectrum over Tribal 

Lands NPRM are intended to increase 

availability of wireless communications 

over Tribal lands. The Commission has 

worked closely with federallyrecognized American Indian Tribes and 

Alaska Native Villages (Tribes) from 

around the country on developing the 

proposals in the Spectrum over Tribal 

Lands NPRM. 

68. The Spectrum over Tribal Lands 

NPRM contains five substantive 

proposals. First, the Spectrum over 

Tribal Lands NPRM proposes to expand 

the Commission’s current Tribal 

licensing priority for broadcast licenses 

to certain Wireless Radio Services, 

creating opportunities for access to 

Wireless Radio Services licenses not yet 

assigned. Under the current Tribal 

priority, federally-recognized Tribes, 

Tribal consortia, and entities that are 

more than 50 percent owned by a Tribe 

or Tribes are entitled to a priority 

relative to non-Tribal entities when 

proposing FM allotments, as well as 

applying for AM and noncommercial 

educational FM stations, that would 

primarily serve Tribal lands. As 

envisioned in the Spectrum over Tribal 

Lands NPRM, an extension of this Tribal 

priority to the licensing of wireless 

services could provide a path by which 

Tribal entities could gain access to 

licensed spectrum licenses covering 

their unserved and underserved Tribal 

lands. 

69. Second, the Spectrum over Tribal 

Lands NPRM seeks comment on a Tribal 

proposal to create a negotiation process 

under which Tribes could work with 

entities that hold Wireless Radio Service 

licenses to bargain in good faith for 

access to spectrum over unserved or 

underserved Tribal land. This proposal 

aims to combat the hurdle some Tribes 

have encountered where wireless 

licensees holding spectrum over Tribal 

lands have met their construction 

requirements, but have not built out 

networks to provide service to Tribal 

lands within their geographic area of 

license. If adopted this process would 

allow Tribes to take advantage of 

existing Commission rules and policies 

that allow license holders to provide 

other parties with access to spectrum 

through license partitioning or through 

spectrum leasing. For example, the 

Spectrum over Tribal Lands NPRM 

envisions that a Tribe might negotiate 

with a wireless licensee to lease or 

partition the portion of the license that 

covers Tribal lands. 

70. Third, the Spectrum over Tribal 

Lands NPRM invites comment on a 

Tribal proposal to put into use licensed 

spectrum covering Tribal lands that is 

not being used to provide wireless 

services. As described in the Spectrum 

over Tribal Lands NPRM, a Tribal entity 

could initiate a process under which a 

licensee would be obligated to build out 

in unserved or underserved Tribal areas 

or divest the geographic license area 

covering unserved or underserved 

Tribal lands. The Spectrum over Tribal 

Lands NPRM seeks comment on making 

available such a process where an 

existing licensee has satisfied the 

applicable construction requirements 

for the license yet Tribal land areas 

remain unserved or underserved. This 

proposal is intended to provide Tribal 

governments with a process under 

which they could expedite service to 

Tribal lands. 

71. A fourth proposal in the Spectrum 

over Tribal Lands NPRM would 

encourage licensees to deploy service on 

Tribal lands by enabling licensees that 

do so to satisfy, or get extra credit 

toward satisfying, the construction 

requirements for their licenses by 

focusing deployments on Tribal lands. 

This proposal is similar to previous 

efforts by the Commission to provide 

incentives for licensees to deploy 

service in rural areas. The Spectrum 

over Tribal Lands NPRM seeks comment 

on all aspects of this proposal. 

72. Fifth, the Spectrum over Tribal 

Lands NPRM seeks input on possible 

revisions to the Commission’s current 

Tribal lands bidding credit program. 

The Commission proposes 

consideration of a range of possible 

changes including: extending the 

current 3-year construction deadline 

within which the recipient of a Tribal 

lands bidding credit must deploy 

service on the relevant Tribal lands; and 

extension of the current 180-day 

deadline for an auction winner to obtain 

the necessary certification from the 

Tribal government for whose Tribal 

lands the applicant seeks to provide 

service. 

73. Adoption of some or all of the 

proposals in the Spectrum over Tribal 

Lands NPRM may result in increased 

recordkeeping and reporting 

requirements for certain Wireless Radio 

Services licensees that are small 

businesses. The Commission therefore 

seeks comment on how to minimize any 

such associated burden on licensees that 

are small businesses. 

ii. Legal Basis 

74. The legal basis for the proposed 

rules and the Spectrum over Tribal 

Lands NPRM is contained in sections 1, 

2, 4(i), 7, 10, 201, 214, 251(e), 301, 302, 

303, 307(b), 308, 309(j), 310, 319, 324, 

332 and 333 of the Communications Act 

of 1934, 47 U.S.C. 151, 152, 154(i), 157, 

160, 201, 214, 251(e), 301, 302, 303, 

307(b), 308, 309(j), 310, 319, 324, 332, 

and 333, and 47 CFR 1.411. 

iii. Description and Estimate of the 

Number of Small Entities To Which the 

Proposed Rules Will Apply 

75. The RFA directs agencies to 

provide a description of and, where 

feasible, an estimate of the number of 

small entities that may be affected by 

the proposed rules, if adopted. The RFA 

generally defines the term small entity 

as having the same meaning as the terms 

small business, small organization, and 

small governmental jurisdiction. In 

addition, the term small business has 

the same meaning as the term small 

business concern under the Small 

Business Act. A small business concern 

is one which: (1) Is independently 

owned and operated; (2) is not 

dominant in its field of operation; and 

(3) satisfies any additional criteria 

established by the SBA. 

76. Small Businesses. According to 

estimates prepared by SBA’s Office of 

Advocacy, in 2009, there were a total of 

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approximately 27.5 million small 

businesses nationwide. 

77. Small Organizations. Nationwide, 

as of 2002, there are approximately 1.6 

million small organizations. A small 

organization is generally any not-forprofit enterprise which is independently 

owned and operated and is not 

dominant in its field. 

78. Small Governmental Jurisdictions. 

The term small governmental 

jurisdiction is defined generally as 

governments of cities, towns, 

townships, villages, school districts, or 

special districts, with a population of 

less than fifty thousand. Census Bureau 

data for 2002 indicate that there were 

89,476 local governmental jurisdictions 

in the United States. The Commission 

estimates that, of this total, 84,377 

entities were small governmental 

jurisdictions. Thus, the Commission 

estimates that most governmental 

jurisdictions are small. 

79. Wireless Telecommunications 

Carriers (except Satellite). Since 2007, 

the Census Bureau has placed wireless 

firms within this new, broad, economic 

census category. Prior to that time, such 

firms were within the now-superseded 

categories of Paging and Cellular and 

Other Wireless Telecommunications. 

Under the present and prior categories, 

the SBA has deemed a wireless business 

to be small if it has 1,500 or fewer 

employees. For the category of Wireless 

Telecommunications Carriers (except 

Satellite) preliminary data for 2007 

show that there were 11,927 firms 

operating that year. While the Census 

Bureau has not released data on the 

establishments broken down by number 

of employees, the Commission note that 

the Census Bureau lists total 

employment for all firms in that sector 

at 281,262. Since all firms with fewer 

than 1,500 employees are considered 

small, given the total employment in the 

sector, the Commission estimates that 

the vast majority of wireless firms are 

small. 

80. Wireless Communications 

Services. This service can be used for 

fixed, mobile, radiolocation, and digital 

audio broadcasting satellite uses. The 

Commission defined small business for 

the wireless communications services 

(WCS) auction as an entity with average 

gross revenues of $40 million for each 

of the three preceding years, and a very 

small business as an entity with average 

gross revenues of $15 million for each 

of the three preceding years. The SBA 

approved these definitions. The 

Commission conducted an auction of 

geographic area licenses in the WCS 

service in 1997. In the auction, seven 

bidders that qualified as very small 

business entities won licenses, and one 

bidder that qualified as a small business 

entity won a license. 

81. 1670–1675 MHz Services. This 

service can be used for fixed and mobile 

uses, except aeronautical mobile. An 

auction for one license in the 1670–1675 

MHz band was conducted in 2003. The 

winning bidder was not a small entity. 

82. Wireless Telephony. Wireless 

telephony includes cellular, personal 

communications services, and 

specialized mobile radio telephony 

carriers. The SBA has developed a small 

business size standard for Wireless 

Telecommunications Carriers (except 

Satellite). Under the SBA small business 

size standard, a business is small if it 

has 1,500 or fewer employees. 

According to Trends in Telephone 

Service data, 413 carriers reported that 

they were engaged in wireless 

telephony. Of these, an estimated 261 

have 1,500 or fewer employees and 152 

have more than 1,500 employees. 

Therefore, more than half of these 

entities can be considered small. 

83. Broadband Personal 

Communications Service. The 

broadband personal communications 

services (PCS) spectrum is divided into 

six frequency blocks designated A 

through F, and the Commission has held 

auctions for each block. The 

Commission initially defined a small 

business for C- and F-Block licenses as 

an entity that has average gross revenues 

of $40 million or less in the three 

previous calendar years. For F-Block 

licenses, an additional small business 

size standard for very small business 

was added and is defined as an entity 

that, together with its affiliates, has 

average gross revenues of not more than 

$15 million for the preceding three 

calendar years. These small business 

size standards, in the context of 

broadband PCS auctions, have been 

approved by the SBA. No small 

businesses within the SBA-approved 

small business size standards bid 

successfully for licenses in Blocks A 

and B. There were 90 winning bidders 

that claimed small business status in the 

first two C-Block auctions. A total of 93 

bidders that claimed small business 

status won licenses in the first auction 

for the D, E, and F Blocks. In 1999, the 

Commission completed a subsequent 

auction of C-, D-, E-, and F-Block 

licenses. Of the 57 winning bidders in 

that auction, 48 claimed small business 

status and won 277 licenses. 

84. The Commission completed an 

auction of C and F Block Broadband 

PCS licenses in 2001. Of the 35 winning 

bidders in that auction, 29 claimed 

small business status. Subsequent 

events concerning that auction, 

including judicial and agency 

determinations, resulted in only a 

portion of those C and F Block licenses 

being available for grant. The 

Commission completed an auction of 

C-, D-, E-, and F-Block licenses in 2005. 

Of the 24 winning bidders in that 2005 

auction, 16 claimed small business 

status and won 156 licenses. In 2007, 

the Commission completed an auction 

of licenses in the A, C, and F Blocks. Of 

the 12 winning bidders in that auction, 

five claimed small business status and 

won 18 licenses. Most recently, in 2008, 

the Commission completed the auction 

of C-, D-, E-, and F-Block Broadband 

PCS licenses. Of the eight winning 

bidders for Broadband PCS licenses in 

that auction, six claimed small business 

status and won 14 licenses. 

85. Lower 700 MHz Band Licenses. 

The Commission previously adopted 

criteria for defining three groups of 

small businesses for purposes of 

determining their eligibility for special 

provisions such as bidding credits. The 

Commission defined a small business as 

an entity that, together with its affiliates 

and controlling principals, has average 

gross revenues not exceeding $40 

million for the preceding three years. A 

very small business is defined as an 

entity that, together with its affiliates 

and controlling principals, has average 

gross revenues that are not more than 

$15 million for the preceding three 

years. Additionally, the lower 700 MHz 

Service had a third category of small 

business status for Metropolitan/Rural 

Service Area (MSA/RSA) licenses, 

entrepreneur, which is defined as an 

entity that, together with its affiliates 

and controlling principals, has average 

gross revenues that are not more than $3 

million for the preceding three years. 

The SBA approved these small size 

standards. An auction of 740 licenses 

(one license in each of the 734 MSAs/ 

RSAs and one license in each of the six 

Economic Area Groupings (EAGs)) was 

conducted in 2002. Of the 740 licenses 

available for auction, 484 licenses were 

won by 102 winning bidders. Seventytwo of the winning bidders claimed 

small business, very small business or 

entrepreneur status and won licenses. A 

second auction commenced on May 28, 

2003, closed on June 13, 2003, and 

included 256 licenses. Seventeen 

winning bidders claimed small or very 

small business status, and nine winning 

bidders claimed entrepreneur status. In 

2005, the Commission completed an 

auction of 5 licenses in the Lower 700 

MHz band. All three winning bidders 

claimed small business status. 

86. In 2007, the Commission 

reexamined its rules governing the 700 

MHz band in the 700 MHz Second 

Report and Order. An auction of A, B 

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and E block 700 MHz licenses was held 

in 2008. Twenty winning bidders 

claimed small business status (those 

with attributable average annual gross 

revenues that exceed $15 million and do 

not exceed $40 million for the preceding 

three years). Thirty three winning 

bidders claimed very small business 

status (those with attributable average 

annual gross revenues that do not 

exceed $15 million for the preceding 

three years). 

87. Upper 700 MHz Band Licenses. In 

the 700 MHz Second Report and Order, 

72 FR 48814, Aug. 24, 2007, FCC 07– 

132, the Commission revised its rules 

regarding Upper 700 MHz licenses. In 

2008, the Commission commenced 

Auction 73 in which C and D block 

licenses in the Upper 700 MHz band 

were available. Three winning bidders 

claimed very small business status 

(those with attributable average annual 

gross revenues that do not exceed $15 

million for the preceding three years). 

88. 700 MHz Guard Band Licensees. 

In 2000, in the 700 MHz Guard Band 

Order, the Commission adopted size 

standards for small businesses and very 

small businesses for purposes of 

determining their eligibility for special 

provisions such as bidding credits and 

installment payments. A small business 

in this service is an entity that, together 

with its affiliates and controlling 

principals, has average gross revenues 

not exceeding $40 million for the 

preceding three years. Additionally, a 

very small business is an entity that, 

together with its affiliates and 

controlling principals, has average gross 

revenues that are not more than $15 

million for the preceding three years. 

SBA approval of these definitions is not 

required. An auction of these licenses 

was conducted in 2000. Of the 104 

licenses auctioned, 96 licenses were 

sold to nine bidders. Five of these 

bidders were small businesses. A 

second auction of 700 MHz Guard Band 

licenses was held in 2001. All eight of 

the licenses auctioned were sold to 

three bidders. One of these bidders was 

a small business. 

89. Air-Ground Radiotelephone 

Service. The Commission has previously 

used the SBA’s small business size 

standard applicable to Wireless 

Telecommunications Carriers (except 

Satellite), i.e., an entity employing no 

more than 1,500 persons. There are 

fewer than 10 licensees in the AirGround Radiotelephone Service, and 

under that definition, the Commission 

estimates that almost all of them qualify 

as small entities under the SBA 

definition. For purposes of assigning 

Air-Ground Radiotelephone Service 

licenses through competitive bidding, 

the Commission has defined small 

business as an entity that, together with 

controlling interests and affiliates, has 

average annual gross revenues for the 

preceding three years not exceeding $40 

million. A very small business is 

defined as an entity that, together with 

controlling interests and affiliates, has 

average annual gross revenues for the 

preceding three years not exceeding $15 

million. These definitions were 

approved by the SBA. In its 2006 

auction of nationwide commercial AirGround Radiotelephone Service licenses 

in the 800 MHz band, neither of the 

winning bidders claimed small business 

status. 

90. AWS Services (1710–1755 MHz 

and 2110–2155 MHz bands (AWS–1); 

1915–1920 MHz, 1995–2000 MHz, 2020– 

2025 MHz and 2175–2180 MHz bands 

(AWS–2); 2155–2175 MHz band (AWS– 

3)). For the AWS–1 bands, the 

Commission has defined a small 

business as an entity with average 

annual gross revenues for the preceding 

three years not exceeding $40 million, 

and a very small business as an entity 

with average annual gross revenues for 

the preceding three years not exceeding 

$15 million. In 2006, the Commission 

conducted its first auction of AWS–1 

licenses. In that initial AWS–1 auction, 

31 winning bidders identified 

themselves as very small businesses. 

Twenty-six of the winning bidders 

identified themselves as small 

businesses. In a subsequent 2008 

auction, the Commission offered 35 

AWS–1 licenses. Four winning bidders 

identified themselves as very small 

businesses, and three of the winning 

bidders identified themselves as a small 

business. For AWS–2 and AWS–3, 

although the Commission does not 

know for certain which entities are 

likely to apply for these frequencies, the 

Commission notes that the AWS–1 

bands are comparable to those used for 

cellular service and personal 

communications service. The 

Commission has not yet adopted size 

standards for the AWS–2 or AWS–3 

bands but has proposed to treat both 

AWS–2 and AWS–3 similarly to 

broadband PCS service and AWS–1 

service due to the comparable capital 

requirements and other factors, such as 

issues involved in relocating 

incumbents and developing markets, 

technologies, and services. 

91. 3650–3700 MHz band. In March 

2005, the Commission released a Report 

and Order and Memorandum Opinion 

and Order that provides for nationwide, 

non-exclusive licensing of terrestrial 

operations, utilizing contention-based 

technologies, in the 3650 MHz band 

(i.e., 3650–3700 MHz). As of April 2010, 

more than 1270 licenses have been 

granted and more than 7433 sites have 

been registered. The Commission has 

not developed a definition of small 

entities applicable to 3650–3700 MHz 

band nationwide, non-exclusive 

licensees. However, the Commission 

estimates that the majority of these 

licensees are Internet Access Service 

Providers (ISPs) and that most of those 

licensees are small businesses. 

92. Fixed Microwave Services. 

Microwave services include common 

carrier, private-operational fixed, and 

broadcast auxiliary radio services. They 

also include the Local Multipoint 

Distribution Service (LMDS), the Digital 

Electronic Message Service (DEMS), and 

the 24 GHz Service. At present, there are 

approximately 31,428 common carrier 

fixed licensees and 79,732 private 

operational-fixed licensees and 

broadcast auxiliary radio licensees in 

the microwave services. There are 

approximately 120 LMDS licensees, 

three DEMS licensees, and three 24 GHz 

licensees. The Commission has not yet 

defined a small business with respect to 

microwave services. For purposes of the 

IRFA, the Commission will use the 

SBA’s definition applicable to Wireless 

Telecommunications Carriers (except 

satellite), i.e., an entity with no more 

than 1,500 persons. Under the present 

and prior categories, the SBA has 

deemed a wireless business to be small 

if it has 1,500 or fewer employees. For 

the category of Wireless 

Telecommunications Carriers (except 

satellite) preliminary data for 2007 show 

that there were 11,927 firms operating 

that year. While the Census Bureau has 

not released data on the establishments 

broken down by number of employees, 

the Commission notes that the Census 

Bureau lists total employment for all 

firms in that sector at 281,262. Since all 

firms with fewer than 1,500 employees 

are considered small, given the total 

employment in the sector, the 

Commission estimates that the vast 

majority of firms using microwave 

services are small. The Commission 

notes that the number of firms does not 

necessarily track the number of 

licensees. The Commission estimates 

that virtually all of the Fixed Microwave 

licensees (excluding broadcast auxiliary 

licensees) would qualify as small 

entities under the SBA definition. 

93. Broadband Radio Service and 

Educational Broadband Service. 

Broadband Radio Service systems, 

previously referred to as Multipoint 

Distribution Service (MDS) and 

Multichannel Multipoint Distribution 

Service (MMDS) systems, and wireless 

cable, transmit video programming to 

subscribers and provide two-way high 

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speed data operations using the 

microwave frequencies of the 

Broadband Radio Service (BRS) and 

Educational Broadband Service (EBS) 

(previously referred to as the 

Instructional Television Fixed Service 

(ITFS)). In connection with the 1996 

BRS auction, the Commission 

established a small business size 

standard as an entity that had annual 

average gross revenues of no more than 

$40 million in the previous three 

calendar years. Of the 67 auction 

winners, 61 met the definition of a small 

business. BRS also includes licensees of 

stations authorized prior to the auction. 

At this time, the Commission estimates 

that of the 61 small business BRS 

auction winners, 48 remain small 

business licensees. In addition to the 48 

small businesses that hold BTA 

authorizations, there are approximately 

392 incumbent BRS licensees that are 

considered small entities. After adding 

the number of small business auction 

licensees to the number of incumbent 

licensees not already counted, the 

Commission finds that there are 

currently approximately 440 BRS 

licensees that are defined as small 

businesses under either the SBA or the 

Commission’s rules. In 2009, the 

Commission conducted an auction of 78 

BRS licenses. The Commission offered 

three levels of bidding credits: (i) A 

bidder with attributed average annual 

gross revenues that exceed $15 million 

and do not exceed $40 million for the 

preceding three years (small business) 

will receive a 15 percent discount on its 

winning bid; (ii) a bidder with 

attributed average annual gross revenues 

that exceed $3 million and do not 

exceed $15 million for the preceding 

three years (very small business) will 

receive a 25 percent discount on its 

winning bid; and (iii) a bidder with 

attributed average annual gross revenues 

that do not exceed $3 million for the 

preceding three years (entrepreneur) 

will receive a 35 percent discount on its 

winning bid. Of the ten winning 

bidders, two bidders claimed small 

business status; one bidder claimed very 

small business status; and two bidders 

claimed entrepreneur status. 

94. In addition, the SBA’s Cable 

Television Distribution Services small 

business size standard is applicable to 

EBS. There are presently 2,032 EBS 

licensees. All but 100 of these licenses 

are held by educational institutions. 

Educational institutions are included in 

this analysis as small entities. Thus, the 

Commission estimates that at least 1,932 

licensees are small businesses. Since 

2007, Cable Television Distribution 

Services have been defined within the 

broad economic census category of 

Wired Telecommunications Carriers; 

that category is defined as follows: This 

industry comprises establishments 

primarily engaged in operating and/or 

providing access to transmission 

facilities and infrastructure that they 

own and/or lease for the transmission of 

voice, data, text, sound, and video using 

wired telecommunications networks. 

Transmission facilities may be based on 

a single technology or a combination of 

technologies. The SBA has developed a 

small business size standard for this 

category, which is: all such firms having 

1,500 or fewer employees. To gauge 

small business prevalence for these 

cable services the Commission must, 

however, use the most current census 

data that are based on the previous 

category of Cable and Other Program 

Distribution and its associated size 

standard; that size standard was: all 

such firms having $13.5 million or less 

in annual receipts. According to Census 

Bureau data for 2002, there were a total 

of 1,191 firms in this previous category 

that operated for the entire year. Of this 

total, 1,087 firms had annual receipts of 

under $10 million, and 43 firms had 

receipts of $10 million or more but less 

than $25 million. Thus, the majority of 

these firms can be considered small. 

iv. Description of Projected Reporting, 

Recordkeeping, and Other Compliance 

Requirements for Small Entities 

95. The Spectrum over Tribal Lands 

NPRM seeks public comment on a broad 

range of possible solutions aimed at 

improving deployment of wireless 

communications services on Tribal 

lands. Some of these proposals could 

have potential reporting, recordkeeping, 

and compliance burdens for small 

businesses. For example, Tribal entities, 

some of which may be considered small 

entities, may be required to submit 

information or applications in order to 

initiate processes for spectrum access as 

proposed in the Spectrum over Tribal 

Lands NPRM. In addition, the adoption 

of the good faith negotiation and/or 

some of the construction proposals 

discussed in the Spectrum over Tribal 

Lands NPRM might require a small 

business that provides wireless 

communications service to areas 

including Tribal lands to keep records 

of its service deployment on Tribal 

lands. If a Tribal entity were to request 

the initiation of either the good faith 

negotiation or certain of the proposals 

for constructing on unserved or 

underserved Tribal lands, a small 

business WRS licensee might be 

required to submit service deployment 

and related information to the 

Commission if it wished to contest the 

initiation of either process. Similarly, 

the adoption of the good faith 

negotiation standards proposed in the 

Spectrum over Tribal Lands NPRM 

might require a small business WRS 

licensee to keep records of negotiations, 

if any, between itself and a Tribal entity. 

96. Because the specific nature of 

these proposals has not been finalized, 

the Commission does not have a more 

specific estimate of potential reporting, 

recordkeeping, and compliance burdens 

on small businesses. The Commission 

anticipates that commenters will 

address the reporting, record-keeping, 

and other compliance proposals made 

in the Spectrum over Tribal Lands 

NPRM, and will provide reliable 

information on any costs and burdens 

on small businesses for inclusion in the 

record of this proceeding. 

v. Steps Taken To Minimize Significant 

Economic Impact on Small Entities, and 

Significant Alternatives Considered 

97. The RFA requires an agency to 

describe any significant alternatives that 

it has considered in reaching its 

proposed approach, which may include 

the following four alternatives (among 

others): (1) The establishment of 

differing compliance or reporting 

requirements or timetables that take into 

account the resources available to small 

entities; (2) the clarification, 

consolidation, or simplification of 

compliance or reporting requirements 

under the rule for small entities; (3) the 

use of performance, rather than design, 

standards; and (4) an exemption from 

coverage of the rule, or any part thereof, 

for small entities. 

98. The proposals contained in the 

Spectrum over Tribal Lands NPRM seek 

to benefit Tribes and residents of Tribal 

lands by promoting increased use of 

spectrum over Tribal lands and thereby 

help to close communications gaps on 

Tribal lands. If these programs are 

adopted and are successful in 

encouraging the deployment of service 

to Tribal land areas, Tribes, members of 

Tribes and other residents of Tribal 

lands would benefit by having improved 

connectivity. These proposals, if 

adopted, are not intended to impose any 

burden on Tribal entities, though Tribes 

may assume additional obligations 

should they elect to initiate the 

processes described in the Spectrum 

over Tribal Lands NPRM. Therefore, this 

IRFA contains no analysis of the 

proposals’ burden on Tribes. 

99. The reporting and recordkeeping 

requirements in the Spectrum over 

Tribal Lands NPRM could have an 

impact on both small and large entities. 

While any such impact could be more 

financially burdensome for smaller 

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Federal Register / Vol. 76, No. 64 / Monday, April 4, 2011 / Proposed Rules 18489 

entities, the Commission believes the 

impact of such requirements would be 

outweighed by the benefits of promoting 

greater utilization of spectrum over 

Tribal lands. As discussed in Sections A 

and D of this IRFA, the adoption of the 

proposals in the Spectrum over Tribal 

Lands NPRM could result in increased 

reporting and recordkeeping burdens for 

small businesses that hold certain 

Wireless Radio Service licenses. The 

Commission asks for comment on 

alternative ways to minimize any such 

burdens for small businesses. The 

Commission expects to consider the 

economic impact on small businesses 

and other small entities, as identified in 

comments filed in response to the 

Spectrum over Tribal Lands NPRM, in 

reaching its final conclusions and taking 

action in this proceeding. 

vi. Federal Rules That May Duplicate, 

Overlap, or Conflict With the Proposed 

Rules 

100. None. 

C. Initial Paperwork Reduction Analysis 

101. This document contains 

proposed modified information 

collection requirements subject to Office 

of Management and Budget (OMB) 

approval; however, we are not 

submitting them to OMB at this time. 

The Commission will submit the 

proposed modified information 

collection requirements at the Final 

Rule Stage. The Commission, as part of 

its continuing effort to reduce 

paperwork burdens, invites the general 

public and OMB to comment on the 

information collection requirements 

contained in this document, as required 

by the Paperwork Reduction Act of 

1995, Public Law 104–13. In addition, 

pursuant to the Small Business 

Paperwork Relief Act of 2002, Public 

Law 107–198, see 44 U.S.C. 3506(c)(4), 

the Commission seeks specific comment 

on how the Commission might further 

reduce the information collection 

burden for small business concerns with 

fewer than 25 employees. 

IV. Ordering Clauses 

104. Accordingly, it is ordered, 

pursuant to sections 1, 2, 4(i), 7, 10, 201, 

214, 251(e), 301, 302, 303, 307(b), 308, 

309(j), 310, 319, 324, 332 and 333 of the 

Communications Act of 1934, 47 U.S.C. 

151, 152, 154(i), 157, 160, 201, 214, 

251(e), 301, 302, 303, 307(b), 308, 309(j), 

310, 319, 324, 332, 333, that this Notice 

of Proposed Rulemaking is hereby 

adopted. 

105. It is further ordered that the 

Commission’s Consumer and 

Governmental Affairs Bureau, Reference 

Information Center, shall send a copy of 

this Notice of Proposed Rulemaking, 

including the Initial Regulatory 

Flexibility Analysis, to the Chief 

Counsel for Advocacy of the Small 

Business Administration. 

106. It is further ordered that pursuant 

to applicable procedures set forth in 

§§ 1.415 and 1.419 of the Commission’s 

rules, 47 CFR 1.415, 1.419, interested 

parties may file comments on this 

Notice of Proposed Rulemaking on or 

before May 19, 2011, and reply 

comments on or before June 20, 2011. 

List of Subjects in 47 CFR Part 1 

Practice and procedures, Reporting 

and recordkeeping requirements, Tribal 

lands spectrum utilization programs, 

Telecommunications, Competitive 

bidding. 

Federal Communications Commission. 

Bulah Wheeler, 

Deputy Manager. 

Proposed Rules 

For the reasons discussed in the 

preamble, the Federal Communications 

Commission proposes to amend 47 CFR 

part 1 to read as follows: 

PART 1—PRACTICE AND 

PROCEDURE 

1. The authority citation for part 1 

continues to read as follows: 

Authority: 15 U.S.C. 79 et seq.; 47 U.S.C. 

151, 154(j), 160, 201, 225, 303, and 309. 

2. Add a new undesignated center 

heading and §§ 1.1001 through 1.1004 to 

Subpart F to read as follows: 

* * * * * 

Tribal Lands Spectrum Utilization 

Programs 

Sec. 

1.1001 Introduction. 

1.1002 Definitions. 

1.1003 Tribal Licensing Priority. 

1.1004 Tribal Lands Construction Safe 

Harbor. 

§ 1.1001 Introduction. 

The purpose of these rules is to 

improve the availability of wireless 

communications services on unserved 

and underserved Tribal lands by 

promoting greater use of spectrum over 

Tribal lands. 

§ 1.1002 Definitions. 

(a) Qualifying Tribal entity. For the 

purposes of this subpart any of the 

following entities, as further explained 

below, may be designated as a 

qualifying Tribal entity: 

(1) a Tribe; 

(2) a Tribal consortium; or, 

(3) an entity that is more than 50 

percent owned and controlled by a 

Tribe or Tribes, provided that such 

entity is designated by the Tribal 

government or governments having 

jurisdiction over particular Tribal land 

and for which the spectrum access is 

sought. 

(b) Tribe. Tribe(s) means any 

American Indian Tribe, Nation, Band, 

Pueblo, or Community, or Alaska Native 

Village, which is acknowledged by the 

federal government to have a 

government-to-government relationship 

with the United States and eligible for 

the programs and services established 

by the United States for Indians. 

(c) Tribal consortium. A tribal 

consortium is a conglomerate 

organization composed of two or more 

Tribes, or a Tribe together with an entity 

that is more than 50 percent owned and 

controlled by a Tribe or Tribes, as 

defined herein. 

(d) Entities that are more than 50 

percent owned and controlled by a Tribe 

or Tribes. For purposes of this subpart, 

an entity will be considered to be more 

than 50 percent owned and controlled 

by a Tribe or Tribes where the Tribe or 

Tribes have both de jure and de facto 

control of the entity. De jure control of 

an entity is evidenced by ownership of 

greater than 50 percent of the voting 

stock of a corporation, or in the case of 

a partnership, general partnership 

interests. De facto control of an entity is 

determined on a case-by-case basis. A 

Tribe or Tribes must demonstrate at 

least the following indicia of control to 

establish that it retains de facto control 

of the applicant seeking eligibility as a 

qualifying Tribal entity: 

(1) The Tribe(s) constitutes or 

appoints more than 50 percent of the 

board of directors or management 

committee of the entity; 

(2) The Tribe(s) has authority to 

appoint, promote, demote, and fire 

senior executives that control the day to 

day activities of the entity; 

(3) The Tribe(s) plays an integral role 

in the management decisions of the 

entity; and 

(4) The Tribe(s) has the authority to 

make decisions or otherwise engage in 

practices or activities that determine or 

significantly influence: 

(i) the nature or types of services 

offered by such an entity; 

(ii) the terms upon which such 

services are offered; or 

(iii) the prices charged for such 

services. 

(e) An applicant seeking eligibility to 

be a qualifying Tribal entity must 

describe on its long-form application 

how it satisfies the requirements of 

§ 1.1002(b) through (d), and must list 

and summarize on its long-form 

application all agreements that affect its 

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18490 Federal Register / Vol. 76, No. 64 / Monday, April 4, 2011 / Proposed Rules 

eligibility such as partnership 

agreements, shareholder agreements, 

management agreements, spectrum 

leasing arrangements, and all other 

agreements, including oral agreements, 

establishing de facto and de jure control 

of the qualifying Tribal entity. A 

qualifying Tribal entity also must 

provide the date(s) on which each of the 

agreements listed was entered into. 

(f) An applicant seeking eligibility as 

a qualifying Tribal entity must attach 

with its long-form application a 

certification from the Tribal government 

stating that the applicant is authorized 

by the Tribal government to site 

facilities and provide service on its 

Tribal lands. 

(g) Tribal land(s). Any federally 

recognized Indian tribe’s reservation, 

Pueblo, or Colony, including former 

reservations in Oklahoma, Alaska 

Native regions established pursuant to 

the Alaska Native Claims Settlement Act 

(85 Stat. 688), and Indian allotments. 

(h) Unserved and/or underserved 

Tribal land(s). Those Tribal lands with 

Wireless Radio Services coverage to no 

more than 65 percent of the population 

of the Tribal land area based on the 

most recently available U.S. Census 

Data. 

§ 1.1003 Tribal Licensing Priority. 

During a window announced by the 

Commission for the filing of 

applications for a Tribal licensing 

priority, a qualifying Tribal entity 

having jurisdiction over unserved or 

underserved Tribal lands within the 

geographic area of a Wireless Radio 

Service license that has not been 

assigned, may submit a long-form 

license application for an authorization 

to use the Tribal land portion of that 

license. In the event that license 

applications filed by qualifying Tribal 

entities are mutually exclusive, the 

Commission will resolve these mutually 

exclusive applications by means of a 

competitive bidding process open only 

to those qualifying Tribal entities. 

§ 1.1004 Tribal Lands Construction Safe 

Harbor. 

Satisfaction of Construction 

Requirements through Service to Tribal 

Lands. A Wireless Radio Licensee with 

Tribal lands within the geographic area 

of its license will be deemed to have 

satisfied its construction obligations for 

its entire service area if it deploys 

coverage to at least 75% of the 

geographic area of such Tribal lands. 

[FR Doc. 2011–7825 Filed 4–1–11; 8:45 am] 

BILLING CODE 6712–01–P 

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Parts 1 and 64 

[CG Docket No. 11–47; FCC 11–38] 

Contributions to the 

Telecommunications Relay Service 

Fund 

AGENCY: Federal Communications 

Commission. 

ACTION: Proposed rule. 

SUMMARY: In this document, the 

Commission proposes rules to 

implement the ‘‘Twenty-First Century 

Communications and Video 

Accessibility Act of 2010’’ (CVAA) 

which requires each interconnected 

voice over Internet Protocol (VoIP) 

service provider and each provider of 

non-interconnected VoIP service to 

participate in and contribute to the 

Telecommunications Relay Services 

(TRS) Fund. The law directs that within 

one year after the date of enactment of 

the CVAA, such VoIP providers shall 

participate in and contribute to the 

Fund in a manner prescribed by the 

Commission by regulation. The 

regulations must oblige such 

participation in a manner that is 

consistent with and comparable to the 

obligations of other contributors to the 

fund. 

DATES: Comments are due on or before 

May 4, 2011. Reply comments are due 

on or before May 19, 2011. Written 

comments on the proposed information 

collection requirements, subject to the 

Paperwork Reduction Act (PRA) of 

1995, Public Law 104–13, should be 

submitted on or before June 3, 2011. 

ADDRESSES: You may submit comments, 

identified by [CG Docket No. 11–47], by 

any of the following methods: 

• Electronic Filers: Comments may be 

filed electronically using the Internet by 

accessing the Commission’s Electronic 

Comment Filing System (ECFS) http:// 

fjallfoss.fcc.gov/ecfs2/ or the Federal 

eRulemaking Portal: http:// 

www.regulations.gov. Filers should 

follow the instructions provided on the 

Web site for submitting comments and 

transmit one electronic copy of the 

filing to each docket number referenced 

in the caption, which in this case is CG 

Docket No. 11–47. For ECFS filers, in 

completing the transmittal screen, filers 

should include their full name, U.S. 

Postal Service mailing address, and the 

applicable docket number. 

• Parties may also submit an 

electronic comment by Internet e-mail. 

To get filing instructions, filers should 

send an e-mail to ecfs@fcc.gov, and 

include the following words in the body 

of the message, ‘‘get form <your e-mail 

address>.’’ A sample form and 

directions will be sent in response. 

• Paper Filers: Parties who choose to 

file by paper must file an original and 

four copies of each filing. In addition, 

parties must send one copy to the 

Commission’s duplicating contractor, 

Best Copy and Printing, Inc., 445 12th 

Street, SW., Washington, DC 20554, or 

via e-mail to fcc@bcpiweb.com. Filings 

can be sent by hand or messenger 

delivery, by commercial overnight 

courier, or by first-class or overnight 

U.S. Postal Service mail. All filings 

must be addressed to the Commission’s 

Secretary, Office of the Secretary, 

Federal Communications Commission. 

• All hand-delivered or messengerdelivered paper filings for the 

Commission’s Secretary must be 

delivered to FCC Headquarters at 445 

12th St., SW., Room TW–A325, 

Washington, DC 20554. All hand 

deliveries must be held together with 

rubber bands or fasteners. 

• Envelopes must be disposed of 

before entering the building. The filing 

hours are 8 a.m. to 7 p.m. 

• Commercial overnight mail (other 

than U.S. Postal Service Express Mail 

and Priority Mail) must be sent to 9300 

East Hampton Drive, Capitol Heights, 

MD 20743. U.S. Postal Service firstclass, Express, and Priority mail must be 

addressed to 445 12th Street, SW., 

Washington DC 20554. 

In addition, document FCC 11–38 

contains proposed information 

collection requirements subject to the 

PRA. It will be submitted to the Office 

of Management and Budget (OMB) for 

review under section 3507 of the PRA. 

OMB, the general public, and other 

Federal agencies are invited to comment 

on the proposed information collection 

requirements contained in this 

document. PRA comments should be 

submitted to Cathy Williams, Federal 

Communications Commission via e-mail 

at PRA@fcc.gov and 

Cathy.Williams@fcc.gov and Nicholas A. 

Fraser, Office of Management and 

Budget via fax at 202–395–5167 or via 

e-mail to 

Nicholas_A._Fraser@omb.eop.gov. 

FOR FURTHER INFORMATION CONTACT: 

Rosaline Crawford, Consumer and 

Governmental Affairs Bureau, Disability 

Rights Office, at (202) 418–2075 or 

e-mail Rosaline.Crawford@fcc.gov. 

For additional information concerning 

the PRA information collection 

requirements contained in this 

document, contact Cathy Williams, 

Federal Communications Commission, 

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