RLECs Want to ‘Yank’ USF Chair from Under Native Tribes, Briefs Say

Last October’s order gave Native Americans a real “seat at the table,” Navajo regulators said in their brief: “The Petitioners, however, wish to yank that chair away from the table before anyone even sits in it by asking the Commission to reverse itself and remove the Tribal Engagement Provisions of the CAF Order."

The order requires carriers that receive Universal Service Fund cash “to engage Tribal governments.” To Native American regulators, this means carriers must at least talk with tribal leaders about: (1) needs assessments and broadband deployment that focuses on schools, libraries and other “anchor institutions,” (2) “feasibility and sustainability planning,” (3) “culturally sensitive” marketing, (4) rights-of-way processes, and (5) compliance with Tribal regulators, the Navajo regulators said in their brief (http://xrl.us/bmofki).

Twenty-three small, rural carriers have asked the FCC to reverse those rules, arguing that the rules infringe on their First Amendment rights and are “arbitrary and capricious.” But the RLECs’ petition “evidences yet more of the same treatment Native Americans have suffered for hundreds of years, stripping the indigenous nations that lie within the boundaries of the United States the protections afforded to them under the Constitution and the many Treaties between Tribes and the Federal government,” the Navajo regulators said. “In short,” the Navajo regulators added, “the Petitioners seek to reap the benefit of their incumbent status, and the economic support provided by USF and CAF, but want no part in engaging Tribal governments in determining the needs of Native peoples, or, critically, in planning the buildout of telecommunications infrastructure on tribal lands and marketing in a manner that ensures that the services they are supposed to provide are actually meeting the needs of Native peoples and institutions."

The RLECs are ignoring, among other things, the Constitution’s “Indian Commerce Clause,” which gives native nations sovereign rights, the Navajo regulators said. Additionally, the 1996 Telecom Act requires telcos that want USF cash to go through the process of becoming eligible telecommunications carriers, the Navajo regulators said. Section 214(e)(1)(B) requires eligible carriers to “advertise the availability of such services and the charges therefore using media of general distribution,” the Navajo regulators said, quoting from the section. “Thus,” the Navajo regulators said, “prior to enactment of the CAF Order, carriers wishing to take advantage of the Federal subsidy offered under USF had to agree to engage in certain speech. In place for 15 years, this existing impingement on commercial speech has never been successfully challenged."

Even as the first oppositions were coming into the docket this week, the Federal Register was publishing some of the new rules. The rules on intercarrier compensation were published in the Register Wednesday.

Meanwhile, Verizon met with the FCC to ask it to rethink some of its guidelines on phasing out support for competitive eligible telecom carriers, an ex parte letter posted Wednesday showed. Verizon had agreed to phase out hundreds of millions of dollars in support when it acquired Alltel in 2008. October’s order “could be read to suggest that both phase-downs would apply simultaneously,” Verizon told FCC General Counsel Austin Schlick and eight other staffers in a meeting on Jan. 5, according to the ex parte notice (http://xrl.us/bmofmw). “That result might leave Verizon even worse off than it would have been under the merger commitment alone,” Verizon officials said. “If that is what was intended in the USF-ICC Transformation Order, this aspect of the order must be reconsidered.”