INOUYE ORDERS FCC INQUIRY OF TRIBAL TELECOM CONSULTATION RIGHTS
Senate Indian Affairs Committee Chmn. Inouye (D-Hawaii) ordered FCC to file report with panel on Commission’s role in protecting tribal lands from alleged illegal encroachment by wireless tower companies. Joint hearing with Senate Commerce Committee Tues. began with testimony from FCC Consumer & Govt. Affairs Bureau Chief Dane Snowden, who outlined existing and anticipated FCC initiatives to increase Indian Country access to telecom services. Although most members and panelists focused on issue of low penetration rates and measures being taken to address underserved areas, tone of hearing took abrupt turn. William Day, chmn. of United South & Eastern Indian Tribes’ Culture & Heritage Committee, said he questioned legality of FCC’s allowing cell tower companies to satisfy agency’s tribal governmental consultation obligations. This obligation involves determining the impact of telecom infrastructure on tribal lands, including sacred sites. Day lauded Congress for balancing efforts to spur electronic communications deployment on tribal lands and respect for tribal sovereignty: “Unfortunately, your work has been thwarted -- grossly thwarted -- by the Federal Communications Commission and its allies.”
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Day said numerous tribes were deluged with requests from cell tower companies that wanted environmental information but were unwilling to compensate them for processing such requests. Some companies place additional demands on tribes for responses in 10-30 days, informing them that if requested information isn’t provided within certain time frame that company could assume tower projects wouldn’t affect sacred tribal resources. He said there had been cases where companies began construction before asking for assessments or receiving permission to build: “The FCC has an independent obligation to consult with tribes, but has refused to enter into consultation, pawning off that responsibility to the cell tower companies. Meanwhile, the tribes, who are generally financially strapped, fear the continuing loss, damage or destruction of tribal cultural properties as communications towers proliferate.” Day said Telecom Act’s Sec. 106 required govt. to conduct related tribal land assessments and to bear costs of that activity.
Inouye asked Snowden whether Sec. 106 placed that mandate on govt. Snowden first said he would have to refer question to Wireless Bureau, but Inouye pressed him to consult with FCC counsel in audience. Snowden complied, then confirmed that rules permitted FCC to take action on issue of environmental assessments and tribal cost reimbursement. Inouye said: “I expect a full report from the [FCC].” Snowden responded: “Yes, forthwith.”
Snowden said FCC had taken several steps to make telecom service affordable while creating incentives for carriers “to serve and deploy facilities in areas that may previously been regarded as high-risk and unprofitable.” Changes in universal service rules provide such incentives, since low- income support programs including Lifeline and Link-Up help consumers pay for installation and monthly service. He said FCC next month would start outreach program that would contact recognized tribes individually to increase awareness of support programs. Commission also will shift focus from annual education programs “to a series of interactive workshops among tribes, federal government agencies and the communications industry to address telecommunications issues facing Indian Country.”
Western Wireless Pres. John Stanton suggested Congress take several steps to create level playing field for all service providers in universal market, steps that could increase penetration rates on tribal lands. Expedited processing by state public utility commissions of Eligible Telecom Carrier (ETC) applications should be priority, he said: “First, Congress should impose a 180-day deadline for state commission action on ETC applications… Expeditious action on ETC designations will facilitate new service offerings on reservations, and also will have the salutary benefit of qualifying the tribal customers” for Lifeline and Link-Up.
Montana Independent Telecom Systems Exec. Vp Mike Strand also expressed concern over ETC designation process, then focused on FCC processing of such applications: “At the FCC, an application is filed, interested parties can file comments, and the application is either granted or denied. There is no hearing. There is no opportunity for discovery. There is no opportunity for cross-examination.”