Carriers Against Tribal Engagement Obligations in FCC’s ‘Further Guidance’ Notice

CTIA said that, although motivated by good intentions, the public notice would “impose such overwhelming burdens on providers that it actually would create disincentives” to serve tribal lands at all (http://xrl.us/bnrosw). The cost of complying with the notice would be “enormous” since it requires face-to-face meetings between tribes and senior executives, the association said. Tribe-specific advertising would also increase costs, as would the burden of preparing presentations for each tribe, CTIA said. CTIA also agreed that there were APA and PRA violations. Moreover, the public notice appears to apply to eligible telecom carriers that do not receive tribal support, or those whose legacy support is being phased out, CTIA said.

"The Commission should clarify that such guidance is recommended rather than prescriptive,” Sprint Nextel said (http://xrl.us/bnrozn). Sprint agreed that cooperation between service providers and tribal governments is “essential,” but some of the further guidance in the notice is “problematic in scope and substance,” the carrier said. In any case, Sprint was aware of no instances in which a carrier has not engaged in good faith negotiations with tribal authorities, it said. “The imposition of heavy-handed regulatory requirements here is unnecessary."

The public notice offers little practical guidance on engaging with tribal authorities, and exacerbates APA, PRA, and First Amendment violations, AT&T said (http://xrl.us/bnroq6). At this point there’s so little guidance that it will be difficult for tribal mobility fund recipients to actually implement it, the telco said. The commission lacks the authority to direct providers to begin discussions with tribal groups in order to comply with its rules, AT&T said. The commission failed to adhere to the APA notice and comment requirements, failed to seek Office of Management and Budget approval for the proposed information collection, and violated the First Amendment by compelling telecom providers to discuss marketing services in a “culturally sensitive manner,” AT&T argued.

U.S. Cellular and Pioneer Cellular also supported USTelecom’s petition, arguing it draws attention to “numerous substantial deficiencies and ambiguities” in the public notice (http://xrl.us/bnrozv). Compliance will be very costly, the carriers said, and would be unwarranted where the carriers’ USF support is being phased down. The commission could rectify these problems by applying the tribal engagement obligations only prospectively, so that only carriers receiving new high-cost support for tribal deployments are subject to the obligations, they said.

The National Telecommunications Cooperative Association said the petition “highlights serious concerns” arising out of “the race” to implement USF and intercarrier compensation reforms “without following proper process or taking stock of practical considerations” (http://xrl.us/bnro2b). The commission should clarify that its further guidance imposes “no substantive obligations” on carriers, and it should revise its suggestions “in accordance with a cost-benefit analysis,” the association said. Finding that eligible telecom carriers must comply with the rules would be “nonsensical and unfair,” they said. The association also agreed that the commission failed to comply with the APA, PRA, and rules requiring a regulatory flexible analysis of proposed obligations.

Rural rate-of-return carriers, including several tribe-run carriers, agreed that the further guidance “unduly burdens ETCs by offering little offsetting benefits for Tribes,” and was obtained without first getting OMB approval (http://xrl.us/bnro2w). “It is imperative that the FCC reconsider and not impose these onerous burdens on the rate of return carriers,” they said. They asked the commission to reconsider its tribal engagement requirement, particularly where carriers serve “uninhabited areas,” or where they do not intend to deploy broadband. At the very least, they said, the commission should provide for a de minimis exemption or a streamlined waiver process, they said. The Blooston Rural Carriers, a group of about a dozen rural ILECs, also supported the petition (http://xrl.us/bnro3c).

But groups representing tribal entities opposed USTelecom’s petition. Native Public Media and the National Congress of American Indians called the petition “procedurally and substantively misguided” (http://xrl.us/bnro3i). The petition simply re-argues its previous objections to the tribal engagement rules, arguments USTelecom made unsuccessfully when the USF/ICC compensation order was being considered, the groups said. Substantively, the petition is “not only misguided, but deeply disappointing,” they said. It “approaches Tribal engagement rules as an opportunity for recalcitrant confrontation, rather than an opportunity to ‘move forward with a shared vision,'” they said, quoting the public notice. “The Petition seeks not to improve communications between Tribes and service providers, but to undermine or curtail the very concept of ‘Tribal engagement.'” The groups also spoke sadly of USTelecom’s petition: “USTA regards Tribal governments not as proud representatives of sovereign nations but as ‘unprepared, disorganized, and unable to convey with certainty the communications needs and priorities of their individual communities.'” That language “does not bode well for the aspirations expressed” in the public notice, the tribal groups said.

The Gila River Indian Community and Gila River Telecommunications also opposed the petition, arguing there’s no need for the commission to clarify “a rule that is abundantly clear: the tribal engagement obligations apply to all ETCs providing or seeking to provide service on tribal lands with the use of universal service fund” support, they said. The obligations are already set forth in the USF/ICC order, they said, and USTelecom did not offer a “convincing justification” for reconsideration. The Gila organizations also said the rules were “constitutionally sound” and “not unduly burdensome.” And they said the PRA doesn’t apply because the rules don’t require information collection, merely tribal engagement. Alexicon Telecommunications Consulting also opposed USTelecom’s petition “to the extent it asks the Commission to weaken the Tribal Engagement provisions” in any way (http://xrl.us/bnro4s).