Over a dozen court cases on recent FCC actions to spur 5G wireless buildout have largely been consolidated in the 9th U.S. Circuit Court of Appeals and appear likely to be completely consolidated. The D.C. Circuit Friday asked parties to show cause why a final batch of wireless cases shouldn't be transferred to the 9th Circuit, and none objected. The 11th Circuit also is considering an FCC request to transfer to the 9th Circuit a challenge to an August pole attachment order, which the commission had combined with a declaratory ruling prohibiting local and state moratoriums on infrastructure deployment (see 1808090011).

The United Keetoowah Band of Cherokee Indians told the U.S. Court of Appeals for the D.C. Circuit it shouldn’t delay the Feb. 25 deadline for the FCC to file a final brief in the tribal challenges to a March wireless infrastructure order, in United Keetoowah Band v. FCC, No. 18-1129. Other tribes, the National Association of Tribal Historic Preservation Officers and the National Trust for Historic Preservation supported that argument (in Pacer). The FCC Wednesday asked for additional time citing the partial federal shutdown (see 1901230047). Other tribal interests led by the Blackfeet Tribe filed in support of the FCC (in Pacer): “The Blackfeet Petitioners themselves are enduring extreme hardships in the shutdown, with federal and tribal workers furloughed and services like healthcare, law enforcement, and schools closed and unavailable.”

The FCC asked the U.S. Court of Appeals for the D.C. Circuit to delay the Feb. 25 deadline for the final brief in the tribal challenges to a March wireless infrastructure order, in United Keetoowah Band v. FCC, No. 18-1129, "until seven days after the Commission receives funding and resumes normal operations." The agency "contacted petitioners about this motion" but was "unable to ascertain their position,” it said Wednesday (in Pacer). During the shutdown, FCC attorneys are “prohibited from working, even on a voluntary basis, except in very limited circumstances,” the commission said.

Lifeline subscribership has "shrunk" almost 30 percent under FCC Chairman Ajit Pai and is set to drop at least another 30 percent "on his watch," said Kelley Drye attorney John Heitmann on a New America Open Technology Institute panel Wednesday. Representing Lifeline providers, he said Pai commission actions and proposals undercut enrollment and providers.

Lifeline subscribership has "shrunk" almost 30 percent under FCC Chairman Ajit Pai and is set to drop at least another 30 percent "on his watch," said Kelley Drye attorney John Heitmann on a New America Open Technology Institute panel Wednesday. Representing Lifeline providers, he said Pai commission actions and proposals undercut enrollment and providers.

The Blackfeet Tribe and other tribal interests asked the U.S. Court of Appeals for the D.C. Circuit to schedule oral argument in United Keetoowah Band v. FCC, No. 18-1129, the appeal of the FCC’s March wireless infrastructure order. The issues "are of profound importance, especially to" such "tribal petitioners because the FCC misrepresents its powers to unilaterally decide whether it must comply with federal law,” the tribe said (in Pacer). Petitioners sought separate time at oral argument, as they got court OK to file their own brief.

The Congressional Research Service reported on broadband access Wednesday: on tribal broadband (see here) and on federal assistance programs (see here). CRS said whether tribal lands get more funding for broadband this Congress will likely be determined "by the ongoing trajectory of overall federal funding for broadband." It said FCC and Commerce Department data shows that as of the end of 2017, roughly 32 percent of tribal land residents lacked access to 25/3 Mbps, compared with about 6 percent of all Americans. It said key challenges for tribal lands are the high poverty rates and often rugged rural terrain. On federal assistance programs, CRS said if this Congress looks at further encouraging broadband deployment and adoption, a big issue is striking a balance between providing federal assistance for unserved and underserved areas while also "minimizing any deleterious effects that government intervention ... may have on competition and private sector investment."

The Congressional Research Service reported on broadband access Wednesday: on tribal broadband (see here) and on federal assistance programs (see here). CRS said whether tribal lands get more funding for broadband this Congress will likely be determined "by the ongoing trajectory of overall federal funding for broadband." It said FCC and Commerce Department data shows that as of the end of 2017, roughly 32 percent of tribal land residents lacked access to 25/3 Mbps, compared with about 6 percent of all Americans. It said key challenges for tribal lands are the high poverty rates and often rugged rural terrain. On federal assistance programs, CRS said if this Congress looks at further encouraging broadband deployment and adoption, a big issue is striking a balance between providing federal assistance for unserved and underserved areas while also "minimizing any deleterious effects that government intervention ... may have on competition and private sector investment."

Thirteen more rural telcos serving tribal lands are eligible for FCC relief from USF operational expense restrictions, beyond the five carriers identified in April and Mescalero Apache Telecom, whose petition for reconsideration was granted Monday (see 1901020033). The 13 are eligible for opex relief under an April order establishing certain broadband limits, "even though they were not affected by the previous opex cap," said a Wireline Bureau public notice in docket 10-90. The newly identified carriers are Atlas Telephone, Beggs Telephone, Bixby Telephone, Cherokee Telephone, Cheyenne River Sioux, Lavaca Telephone, Oklatel Communications, Sacred Wind Communications, San Carlos Apache, Shidler Telephone, Tohono O'odham Utility, Totah Communications and Wyandotte Telephone. Sacred Wind petitioned the FCC to reconsider a 90 percent 10/1 Mbps broadband deployment limit (carriers eligible for relief have to be under that threshold), or, if the limit is retained, to find that Sacred Wind was eligible for relief. That petition was "rendered moot" by the PN, said a commission spokesperson Thursday, before the FCC shut down most operations. A Sacred Wind representative didn't comment. Pine Telephone, Terral Telephone, Gila River Telecommunications, Fort Mojave Telecommunications and Saddleback Communications were also listed in the PN. They were the five carriers identified in April as eligible for relief.

The FCC extended USF operating expense relief to Mescalero Apache Telecom, finding the tribal carrier's broadband deployment level fell below a 90 percent threshold set in April (see 1804050028). Mescalero argued the percentage of housing units in its study area capable of getting 10/1 Mbps connectivity was 88.97 percent at best, noted a 4-0 commission order in Wednesday's Daily Digest approving the carrier's petition for reconsideration (see 1805310032): "We agree that Mescalero Apache fell below the 90% benchmark and should be granted relief, including the same retroactive relief granted to other carriers in the [April] Order." Commissioner Mike O'Rielly, who had pushed for the 90 percent cutoff to better target relief, said he voted to grant the petition "with real trepidation regarding the precedent we set and the incentives we create." Mescalero "may be able to demonstrate that its deployment is barely under the applicable threshold, but I still struggle to make sense of why this carrier is deserving or in need of a waiver for additional opex funding," he said. The order "highlights the problem of relying on Form 477 data for purposes of providing USF subsidies -- a use for which the data was never originally intended," he said: The FCC allows Mescalero "to mount its own informal challenge, unencumbered by objective challenge process parameters. ... [T]his ad hoc approach is not sufficiently transparent, leaves too much up to discretion, and is a poor substitute for a thorough comment opportunity." The "Form 477 Data problem is very real, and we don’t help matters by foregoing a meaningful challenge process for purposes of convenience," he added. Chairman Ajit Pai had said he would seek to extend opex relief to more tribal carriers, including Mescalero and Sacred Wind Communications (see 1810050044), but a circulated draft addressed only Mescalero's petition (see 1811130063). The FCC didn't comment Wednesday on Sacred Wind's petition.