A recent decision by the Federal Communications Commission has affirmed the rights of tribes to own and operate important telecommunications infrastructure on tribal lands, and to receive federal universal service funding support for all areas of an underserved Reservation that qualify for rural, high cost funding support. On June 22, 2011, the FCC released its Order on Reconsideration in its docket on Standing Rock Telecommunications’ Petition to be an Eligible Telecommunications Carrier (“ETC”) entitled to federal Universal Service Fund (USF) support subsidies, which was adopted by the full Commission. The order strongly supports deployment of critical communications infrastructure in underserved Tribal lands by granting ETC designation to Standing Rock to provide wireless service throughout the entire Standing Rock Reservation, without regard to wire center boundaries or partial wire centers.
The Commission action was predicated on the historical federal trust relationship that it shares with federally recognized Tribes and its commitment to promote “the availability of affordable communications services to underserved consumers, many of whom reside today on Tribal lands.”
The Commission expanded the existing ETC designation previously conferred to Standing Rock by the Wireline Competition Bureau in August 2010 to designate Standing Rock as an ETC throughout the entire Standing Rock Reservation, including rural partial wire centers. The Commission recognized that it was empowering the Standing Rock Sioux Tribe to “own and operate the critical communications infrastructure needed to protect the health and safety of Tribal consumers, spur local economic development, preserve Tribal language and culture, and further the education of consumers through distance education programs.”
In addition, in response to Standing Rock’s petition for reconsideration, the Commission held that redefinition of a rural telephone company service area is unnecessary when the ETC is designated throughout the rural service areas within the FCC’s jurisdictional authority (i.e. those rural telephone company service areas within Reservation boundaries). Therefore, unlike in the earlier Bureau ETC Designation Order, no state commission consent is needed before Standing Rock’s ETC designation takes effect, which had been delaying federal Univeral Service Fund support subsidies.
This Order, combined with the Commission’s original August, 2010 Order, is a strong federal agency statement of the importance of Tribes being empowered to own and operate critical infrastructure (such as a ubiquitous wireless communications network) throughout a federally recognized Reservation to meet the needs of their communities and historically underserved Tribal lands. And it reaffirms that such decisions need not be subject to otherwise applicable rules requiring state consent when the rural service area is entirely within a federally recognized Reservation that is within federal jurisdictional authority.
Douglas G. Bonner is a Communications Partner with the law firm of SNR Denton US in Washington, D.C. He represents Tribal and other clients on telecommunications and broadband issues before the FCC, NTIA/RUS, state commissions and in the federal courts, including on Universal Service, broadband stimulus, and related matters. He represented Standing Rock Telecommunications, the first tribally owned wireless carrier, in petitioning for and winning designation as a Competitive Eligible Telecommunications Carrier to receive federal high cost universal service support throughout its 4000 square mile Reservation.
Sharice Davids is an associate in the Corporate practice and the Indian Law and Tribal Representation practice of SNR Denton US, LLP, in the Kansas City Office. She is an enrolled tribal member of the Ho-Chunk Nation (Wisconsin). At Cornell Law School, Sharice was President of the Cornell Chapter Native American Law Student Association.