FCC Faces Tribal Resistance on Moves to Speed Wireless Deployment in Indian Country
Curbing cost of reviews by tribal governments is a major wireless industry push as the FCC looks at ways to speed siting of wireless facilities. Chairman Ajit Pai has focused on tribal issues, making a trip to the National Congress of American Indians (NCAI) mid-year conference for a June 14 speech and meetings with tribal leaders (see 1706140028). But signs are the tribes are digging in, presenting a tricky issue for the FCC as it addresses siting rules.
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“I don’t foresee a quick compromise,” said James Dunstan of the Mobius Legal Group, who represents tribal interests. “Discussions between tribal organizations and carrier organizations have become very tense and frosty over the past year, as carriers want to push through reforms quickly at the FCC without addressing long-standing issues related to twilight towers and towers built on tribal reservations without any authority or leases. Carriers want to ignore those problems at the same time they want to significantly curb the ability of tribes to protect culturally sensitive areas.”
“If it’s too expensive, then don’t serve the area and you tell people why you’re not serving the area and the price will come down,” said Best Best local government attorney Gerard Lederer. Sometimes, the wireless industry makes accusations carriers are being overcharged as a “negotiation ploy,” he said.
A former FCC commissioner was more optimistic about chances for a compromise. "People living on tribal lands, as well as those living in areas adjacent to them, want access to emerging 5G services,” said the former regulator. “Similarly, wireless carriers want to provide new services to these markets and deploy as quickly as they can, all while respecting tribal sovereignty.” The agency didn’t comment.
"The wireless industry shares the goal of protecting Tribal Nations' historical, religious, and culturally significant sites as it seeks FCC action to modernize and clarify the Tribal review process to enable new 5G services for all,” said CTIA and the Wireless Infrastructure Association in a joint response. “As we transition from large, unsightly macro towers to smaller, less-invasive, but much more numerous small cells there must be ample room for reform, at least from a streamlining process perspective,” said Doug Brake, telecom policy senior analyst at the Information Technology and Innovation Foundation. “When the nature of the question has changed, it makes sense to change the way in which it gets answered as well. There is obviously a balance to be struck.”
NCAI said in a statement it weighed in on the issue twice at the commission in recent months, including a recent filing with the support of 13 other organizations. “NCAI has continued to ask the FCC to allow for tribes to protect their sacred places, as the National Historic Preservation Act intended,” it told us. “Each tribe in the United States is a sovereign government, and as sovereigns, tribes are just for charging fees for reviewing these applications. Tribes, their Tribal Historic Preservation Officers and associated departments provide unique expertise and are the only credible experts in determining effects to tribal historic and cultural resources. Fees associated with the Tribal Historic Preservation Review allow for these experts to conduct timely and accurate reviews so that Industry can avoid disrupting protected cultural and historic sites that are protected under law.”
Tribes rely on fees to process the applications, NCAI said. “It is the FCC’s responsibility to address fee disputes between Tribes and Applicants,” the group said. “The Commission should establish their policy based on the standard practice of the majority of Tribes that use [the FCC's Tower Construction Notification System], not on a handful of isolated incidents. ... The Wireless Industry can surely afford to pay the fees associated with Tribal Historic Preservation review.”
In comments in docket 17-79, NCAI, the U.S. and Eastern Tribes Sovereignty Protection Fund National, the Association of Tribal Historic Preservation Officers and various tribal groups said small-cell deployment is critical everywhere: “Deployment must be done without impact to Tribal cultural resources.”
Pai noted the importance of infrastructure in a speech Monday in Stockholm (see 1706260041). “We are examining how state and local government processes can affect the speed and cost of infrastructure deployment,” he said. “And we’re exploring reforms to those processes.”
The U.S. Conference of Mayors, meanwhile, approved a resolution Monday in favor of preserving local zoning control over macro towers and small cells. “Such siting decisions must remain local as they involve public safety, community image, property valuations and competitiveness issues that are best handled at the local level,” the resolution said. The FCC, Congress and state legislatures shouldn’t pre-empt, "or otherwise limit, local governments’ ability to manage their rights-of-way and other proprietary assets, including the ability to demand a fair rental” for them, the resolution said. The group said the FCC Broadband Deployment Advisory Committee should be expanded to include more local government representatives. Others have raised similar concerns (see 1706010054).