[Federal Register Volume 76, Number 64 (Monday, April 4, 2011)]
[Proposed Rules]
[Pages 18476-18490]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-7825]


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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.

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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:
    <bullet> Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
    <bullet> Federal Communications Commission's Web Site: http://fjallfoss.fcc.gov/ecfs2/. Follow the instructions for submitting 
comments.
    <bullet> 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.
    <bullet> All hand-delivered or messenger-delivered 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.
    <bullet> Commercial overnight mail (other than U.S. Postal Service 
Express Mail and Priority Mail) must be sent to 9300

[[Page 18477]]

East Hampton Drive, Capitol Heights, MD 20743.
    <bullet> U.S. Postal Service first-class, Express, and Priority 
mail must be addressed to 445 12th Street, SW., Washington, DC 20554.
    <bullet> People with Disabilities: Contact the FCC to request 
reasonable accommodations (accessible format documents, sign language 
interpreters, CART, etc.) by e-mail: <a href="/cdn-cgi/l/email-protection#abede8e89e9b9febcdc8c885ccc4dd"><span class="__cf_email__" data-cfemail="1e585d5d2b2e2a5e787d7d30797168">[email protected]</span></a> or telephone: 202-
418-0530 or TTY: 202-418-0432.
    <bullet> 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 <a href="/cdn-cgi/l/email-protection#d787859697b1b4b4f9b0b8a1"><span class="__cf_email__" data-cfemail="6d3d3f2c2d0b0e0e430a021b">[email protected]</span></a> and to Nicholas A. Fraser, Office of Management 
and Budget, via e-mail to <a href="/cdn-cgi/l/email-protection#7f11190d1e0c1a0d3f10121d511a100f51181009"><span class="__cf_email__" data-cfemail="d0beb6a2b1a3b5a290bfbdb2feb5bfa0feb7bfa6">[email protected]</span></a> 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 
<a href="/cdn-cgi/l/email-protection#7b2b293a3b1d1818551c140d"><span class="__cf_email__" data-cfemail="267674676640454508414950">[email protected]</span></a> 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.

[[Page 18478]]

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 re-
licensing 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

[[Page 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

[[Page 18480]]

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 near-reservation 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

[[Page 18481]]

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

[[Page 18482]]

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

[[Page 18483]]

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-or-divest 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-or-divest 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-or-divest 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

[[Page 18484]]

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?

[[Page 18485]]

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 federally-recognized 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

[[Page 18486]]

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-for-profit 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. Seventy-two 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

[[Page 18487]]

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 Air-Ground 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 Air-
Ground 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

[[Page 18488]]

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

[[Page 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 Sec. Sec.  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 Sec. Sec.  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.


Sec.  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.


Sec.  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 Sec.  1.1002(b) through (d), and must list and 
summarize on its long-form application all agreements that affect its

[[Page 18490]]

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.


Sec.  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.


Sec.  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


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