2015
Annual Updates
May 5, 2015
James E. Dunstan, Founder
Mobius Legal Group, PLLC
703-851-2843
jdunstan@mobiuslegal.com
1
2015
About Me
 30-plus years of telecommunications law practice;
 On team that won first cellular radio licenses from FCC in 1984 on
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behalf of MCI, licensed microwave and satellite uplink facilities
throughout U.S.;
Represented Native Public Media and National Congress of American
Indians in establishing Broadcast Tribal Priority;
Drafted comments for NPM and NCAI that became core of National
Broadband Plan’s approach to Tribes;
Represents the Navajo Nation before the FCC and helped establish
NNTRC’s regulatory rules;
Co-author of “Tribal Broadband Guide: Telecommunications
Regulation and Taxation in Indian Country,” published by NAFOA;
Left “big firm” legal practice in May, 2010, to establish my own firm
2
2015
Outline
 Positive Train Control/Cultural Resource Fund
 Tribal Lands Bidding Credit
 911 Surcharge
 Lifeline Program
 E-rate
 FirstNet
 Availability of Service and Actual Speeds
 Tribal Mobility Fund
 New Navajo Regulations
3
2015
Positive Train Control/Cultural Resource Fund
 The Rail Safety Improvement Act (RSIA), enacted on October 16,
2008, requires passenger and major freight railroads to
implement PTC on most major track lines by December 31, 2015.
 Freight railroads are preparing to install more than 20,000
wayside poles, between 25 and 65 feet in height, approximately
one to two miles apart along their tracks and at certain switch
points and other operational sites. Because these poles will
support antennas that will use radio spectrum licensed by the
Commission, the Commission considers the installation of PTC
infrastructure to be an FCC undertaking under the NHPA
(Section 106 process).
 Tribal THPOs must get involved!
4
2015
Positive Train Control/Cultural Resource Fund
 On March 18, 2015 the FCC issued a Public Notice
announcing the establishment of a “Cultural Resource
Fund,” paid for by the seven largest Class I freight rail
companies.
 $10,000,000 is available for in grants to support “cultural
and historic preservation programs,” including:
 “to conduct or commission field surveys, ethnographic studies or other
cultural resource reports; to purchase or enhance existing hardware and
/or software used for processing historic preservation review requests;
to pay the salaries of employees or contractors hired by an Eligible Tribe
or SHPO to increase its capacity to conduct any aspect of a cultural or
historic preservation initiative, including future historic preservation
review; for cultural or historic preservation staff training; or to engage
in other related cultural and historic preservation activities.”
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2015
Positive Train Control/Cultural Resource Fund
 Who is eligible?
 “All federally-recognized Tribal Nations, and their entities, that, on or
before December 31, 2013, registered in the FCC’s Tower Construction
Notification System (TCNS) an interest in consultation in any area(s)
where PTC wireless communications facilities were constructed prior to
and including May 2013.”
 Approximately 275 Tribes named in 3/18/15.
 The MICA Group named to administer the Fund.
 www.micagroup.org
 Tribal THPOs should have received a communication from MICA
sometime in April with information about the grant program
 Phase I grant applications will be mailed out in early May.
6
2015
Tribal Lands Bidding Credit
 What is it?
 In spectrum auctions, entities proposing new service to Tribal lands with
less than 85 percent wireline telephone penetration may be awarded a
credit (the amount of which varies from auction to auction).
 Why is it under scrutiny?
 Companies affiliated with DISH Network recently received $3.25 billion
in bidding credits in the AWS-3 auction as small business entities;
 This outraged several FCC Commissioners as well as members of
Congress who have called for a full investigation of FCC auction credits
 NTCH filed comments suggesting that the TLBC should be eliminated,
or at least require an entity seeking a TLBC to demonstrate why the
Tribal lands should qualify.
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2015
Tribal Lands Bidding Credit
 What Happens Next?
 The FCC issued Public Notice on April 17, 2015 seeking comment on
competitive bidding rules generally and specifically on whether the
TLBC should be modified;
 Comments are due May 21, 2015;
 FCC ONAP sent an e-mail out April 24, 2015 alerting Indian Country to
this proceeding and pointing out the issues of importance to Tribes:
 The NTCH comments suggesting that Tribes must demonstrate need for
TLBC; and
 The FCC’s proposal to include Tribal gaming revenues in determining
whether a Tribal applicant is a Small Business. Currently Tribal gaming
revenues are exempted from the calculations.
8
2015
911 Surcharge
 The FCC issued its Sixth Report and Order to Congress on the
status of 911 on December 31, 2014.
 In it, the FCC reported which states were syphoning off into
general coffers 911 surcharges collected by carriers and sent
to states.
 Based on comments filed by NNTRC and NDPS, the FCC
issued a Public Notice in PS Docket No. 09-14 on January 23,
2015 seeking comments on:
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2015
911 Surcharge
 What are the relationships between state and Tribal government authorities
with respect to access to 911 funds collected?
 What mechanisms, if any, are in place to ensure that a portion of 911 fees
collected by states or 911 authorities are available to support E911 service in
Tribal lands?
 Other than 911 fees, are other funding mechanisms available to support the
deployment of E911 service on Tribal lands?
 Lastly, given the lack of reporting on Tribal 911 service by BIA regional
offices, is there a more appropriate mechanism to obtain data on Tribal 911
resource matters in order to promote effective oversight and deployment of
services?
 Unfortunately, NO comments were filed from Indian Country.
However, there is an ongoing obligation on the part of the FCC to
report to Congress, so we will have an opportunity next year to fill this
gap.
10
2015
Lifeline Program
 Lifeline Reform Order adopted Jan. 2012, designed to
save $200 million by requiring all carriers to recertify
the eligibility of subscribers;
 Required carriers to enforce the “One phone per
home” rule;
 Required carriers to cease service to any Lifeline
subscriber who did not recertify eligibility, including
those that could not be reached by carriers, and any
phone not use for 60 days.
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2015
Lifeline Program
 In 1/31/13 Public Notice, FCC estimated that it will
save $213 million in 2013, and that 20% of Lifeline
subscribers will be dropped;
 All carriers had to file FCC Form 555 by 1/31/12, and
annually thereafter which provides data as to the
number of subscribers contacted, and the number
decertified.
 http://apps.fcc.gov/ecfs/comment_search/input?z=l4
2l2 and type in Docket 11-42, search for your carrier.
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2015
Lifeline Program
 FCC has issued dozens of orders against individuals
who had multiple (often dozens) of Lifeline phones
 FCC has issued a number of Notices of Apparent
Liability (NALs) against 11 carriers totally $100
million in fines
 Development of national database to be
administered by USAC continues, database now
available for use by carriers
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2015
Lifeline Program
Add to this 4/30/15 Orders in which AT&T
and SNET agreed to pay a $10.9 fine
14
2015
Lifeline Program
 FCC has adopted a new audit program, effective
April 2, 2014.
 All carriers receiving $5 million or more annually from the Lifeline fund
must engage outside auditors to audit compliance every two years;
 29 carriers subject to audit requirement
 Audits must be provided to Tribal governments by April 2, 2015
 Mission accomplished, right?
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2015
Lifeline Program
 On April 23, 2015 the General Accountability Office (GAO)
issued a report entitled “FCC Should Evaluate the Efficiency
and Effectiveness of the Lifeline Program.”
 The Report was in response to a request from Sen. Thune (RSD), Chairman of the Senate Committee on Commerce,
Science and Transportation
 Key findings:
“The studies that FCC referred us to suggest that household demand for
telephone service—even among low-income households—is relatively
insensitive to changes in the price of the service and household income. This
suggests that many low-income households would choose to subscribe to
telephone service in the absence of the Lifeline subsidy. For example, one study
found that many households receiving the Lifeline subsidy would chose to
subscribe to telephone service in the absence of the subsidy.”
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2015
Lifeline Program
“According to FCC officials, the commission has not evaluated the
extent to which Lifeline has contributed to the narrowing of the gap in
penetration rates and at what cost. As a result, FCC does not know the
extent to which the narrowing of the penetration rate is attributable to the
Lifeline program. FCC officials stated that the structure of the program
has made it difficult for the commission to determine causal connections
between the program and the penetration rate. In particular, FCC
officials noted that because Lifeline has existed since the 1980s, it is
difficult to compare results from the program to results in the absence of
the program.”
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2015
Lifeline Program
 The GAO Report also took aim at the Broadband
Experiment Program, designed to gauge whether
the Lifeline Program could be extended to include
support for broadband:
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Only 10% of proposed customers (7,425 of 74,000) ultimately signed up for the 14
pilot projects.
The FCC allocated $13.8 million, but only $1.7 million was spent.
Only those programs that offered free access to broadband saw any significant
participation.
In programs where subscribers were forced to pay, nearly all subscribers had to
be terminated for failing to pay their bills.
 There is a significant question, according to the GAO, as
to whether lower income people even want broadband.
18
2015
Lifeline Program
 FCC Commissioner Michael O’Reilly issued the
following statement in response to the GAO Report:
“The Commission has to be seriously troubled by GAO’s findings
and recommendation for the Lifeline program. Clearly, the GAO
report, in response to Chairman Thune’s request, raises significant
and fundamental concerns regarding the underlying program, as
well as the pilot projects. As I have suggested before, the current
program is inefficient, costly, and in serious need of review. We
must reevaluate our priorities for the consideration of any Lifeline
changes.”
The Lifeline program is once again in jeopardy and Indian
Country must weigh in with the FCC on its importance to
Native Americans!
19
2015
Schools and Libraries Program (E-rate)
 E-rate Basics:
 $2.4 Billion a year program that provides subsidies (up to
90% Discount Rate) to schools and public libraries to
purchase Internet connectivity and other services;
 By 2005 nearly 94% of instructional classrooms had
Internet access and by 2006 nearly 98% of public libraries
offered their patrons public Internet access, 51% of which
received E-rate support
20
2015
Schools and Libraries Program (E-rate)
 E-rate in Indian Country: Broad success of E-rate
Program has not reached Indian Country
 FCC does not have data on how many Tribal schools participate;
 Bureau of Indian Affairs (BIA) / Bureau of Indian Education (BIE)
does not collect participation data;
 Participation appears quite low, despite the fact that many tribal
schools would qualify for the 90% support tier
 A 2011 study by the Association of Tribal Archives, Libraries and
Museums (ATALM) showed:
 46% of Tribal libraries are the only source of free public Internet
access in their communities, yet
 Less than 5% of Tribal libraries received E-rate support
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2015
Schools and Libraries Program (E-rate)
 Why haven’t Tribes participated? The ATALM Study
identified three barriers to participation, the first two
of which apply equally to Tribal Schools:
 Lack of awareness of the E-rate Program;
 Complicated application process;
 Uncertainty about eligibility:
 Tribal libraries must be eligible for state support and receive a
confirmatory letter from the state head librarian that are
problematic to obtain
 Tribal libraries often don’t “look” like traditional public libraries
(housed in multi-purpose buildings like Chapter Houses or meeting
houses)
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2015
Schools and Libraries Program (E-rate)
 FCC overhauled system in 2014. Goals:
 Curb waste, fraud and abuse;
 Close the “Wi-Fi gap” in schools;
 Consistent with President Obama’s ConnectEd initiative to bring the
Internet to 99% of classrooms by 2017 of speeds of at least 100 Mbps (with a
target of 1 Gbps)
 Elevated Wi-Fi equipment from “Priority II” to “Category I”
 Set aside $1 billion/year to fund internal connections
 Maximum discount rate is 85%
 Maximize the cost-effectiveness of spending;
 Encourage consortia applications;
 Encourage multi-year contracts
 Simplify application process and make the process faster.
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2015
Schools and Libraries Program (E-rate)
 2014 Order also addressed some of the problems in
Indian Country by recognizing:
 the historic federal trust relationship and responsibilities it has
with federally recognized Tribal Nations;
 the longstanding policy of promoting Tribal self-sufficiency
and economic development;
 the existence of the Digital Divide both to tribal members
as well as Tribal anchor institutions such as schools and libraries; and
 the importance of the E-rate Program to Tribal Nations.
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2015
Schools and Libraries Program (E-rate)
 Creation of a Tribal Consultation, Training and
Outreach Program: The FCC ordered:
 the Office of Native Affairs and Policy (ONAP) to conduct
government-to-government consultation toward developing a method
for collecting data as to Tribal school and library participation;
 ONAP to work with USAC to develop a Tribal-specific training,
materials and outreach program to assist Tribes in participating in the
E-rate Program;
 USAC to create a formal Tribal liaison at USAC to assist with Tribalspecific outreach, training and assistance, including being the official
point of contact at USAC for any questions from Tribal applicants.
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2015
Schools and Libraries Program (E-rate)
 What Indian Country asked for but didn’t get:
 A “Tribal Priority” to ensure that some percentage of E-rate money
goes to support Tribal schools and libraries;
 An increase of the Discount Rate to 95% or 100% (in fact, the discount
rate has been reduced for Category II services to 85%);
 A clarification on what qualifies as a “Tribal library” in light of the
statutory ambiguity and fact that the current regulations force Tribes
to seek state support before seeking E-rate support; and
 Flexibility in filing deadlines to account for the additional time it takes
Tribes to comply with Tribal acquisition regulations.
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2015
Schools and Libraries Program (E-rate)
 Further Notice of Proposed Rulemaking (FNPRM)
 National School Lunch Program (NLSP) reporting: “Would the
requirement to use state-reported NSLP data impact Tribal schools
and libraries, and if so, how so? Is there alternative reporting data that
would better reflect the level of economic disadvantage for Tribal
schools and libraries?” ¶ 281
 Encouraging Consortium Participation and use of master contracts:
“What can we do to accommodate the unique financial constraints that
schools and libraries on some Tribal lands deal with and the unique
relationships among Tribal Nations. Should we, for example, establish
different consortia rules for schools and libraries on Tribal lands or
operated by Tribal Nations? What should such rules be?”
¶ 293
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2015
FirstNet
 Middle Class Tax Relief and Job Creation Act of 2012
Established a new First Responder Network
Authority (FirstNet):
 Under the Department of Commerce’s NTIA;
 Delegated role to build and deploy a new nationwide public safety
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broadband network (“NPSBN”);
Statute authorizes FirstNet to work through states;
Separate statutory obligation to consult with Tribes;
System is being designed to use 700 MHz frequencies;
$7 billion has been authorized to build system (some question whether
this is enough);
Excess capacity to be leased to commercial operators on a secondary
basis.
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2015
FirstNet
 FirstNet sought comment in September, 2014 as to
the proper interpretation of certain statutory terms.
Navajo was only Tribe to file comments:
 Noted conflict in statutory language and requested a full “seat at the
table” in consulting with FirstNet and not requiring coordination
through states;
 Raised concerns about the definition of “rural, “frontier” and
“wilderness;
 FirstNet has already defined 27% of the U.S. Land Mass as
“Wilderness”;
 The statutory mandates of the statute for rolling out service to all
areas cannot be avoided merely by defining them away.
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2015
FirstNet
 The Navajo Nation is concerned about how user fees for access to the
NPSBN will be developed and apportioned
 No mention has yet been made as to what it will cost a Tribe to gain access
to the new NPSBN
 FirstNet must not adopt a user fee regime that unduly burdens rural and
Tribal areas that are least able to pay for access
 Mechanisms such as the functioning of the Universal Service Fund must be
considered where lower cost subscribers help subsidize higher cost and
poorer constituents of the system
 Can Tribes get access to the excess spectrum and use it or
lease it out?
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2015
Accessibility and Actual Service
 There continue to be problems with the National Broadband
Map.
 NBM based on carriers self-reporting of the areas they serve, and they
often over-report service areas;
 Coverage certainly overstated for wireless coverage in rugged terrain;
 All new money in the Connect America Fund (CAF) will go to unserved
areas;
 FCC recognizes this up to a point:
 November 24, 2014 Order in which T-Mobile agreed to provide better
information to customers about actual speeds;
 FCC added some additional census blocks to Tribal Mobility Fund after it was
shown that the blocks were not served
 Tribes must remain vigilant on this issue!
31
2015
Tribal Mobility Fund: Phase I
 $50 million was awarded to 14 qualified bidders following “reverse
auction” held 2/25/14. No announcement yet as to Phase II (where
up to $100 million would be available)

Winning bid map: http://apps.fcc.gov/auction902/map/auction_result_ext.html
Item Name
Tribal Land
Alaska
AZ-1
Alaska
Fort Apache Reservation
Navajo Nation Reservation and OffReservation Trust Land
Fort Belknap Reservation and OffReservation Trust Land
AZ-2
MT-1150-1
MT-2490-2
NM-1
NM-2
UT-2430-27
Total
Northern Cheyenne Indian Reservation and
Off-Reservation Trust Land
Navajo Nation Reservation and OffReservation Trust Land
Picuris Pueblo
Navajo Nation Reservation and OffReservation Trust Land
37,380
11,762
Total
Bid Amount
$41,566,542.00
$1,335,325.00
1,957
$1,774,158.00
650
$650,000.00
2,955
$2,364,000.00
2,000
96
$2,014,933.00
$76,704.00
132
$25,212
56,800
49,781,662
Population
32
2015
NNTRC CCN Regulations
 The Navajo Nation Telecommunications Regulatory Commission
(NNTRC) is one of only a very few Tribes that has adopted laws and
regulations regarding telecommunications carriers
(www.nntrc.org) ;
 NNTRC Second Report and Order released January 8, 2015
established procedures for carriers to apply for and receive a
Certificate of Convenience and Necessity (CCN) in order to operate
on the Navajo Nation;
 13 applications were filed by April 8, 2015 deadline, currently under
review by NNTRC;
 Application require disclosure of facilities on the Navajo Nation
(first comprehensive database of telecom facilities on the Navajo
Nation).
33
2015
Annual Updates
Thank you!
James E. Dunstan, Founder
Mobius Legal Group, PLLC
703-851-2843
jdunstan@mobiuslegal.com
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