FCC Opens Rural Tribal Priority Window For Applications From Rural Tribal Entities for 2.5 GHz Spectrum Licenses

On February 3, 2020, the FCC opened a 6 month priority filing window to give rural Tribal Nations an exclusive opportunity to secure unassigned eligible mid-band 2.5 GHz spectrum over rural Tribal lands to provide advanced broadband wireless services, including 5G. The spectrum will be free for qualified entities subject to build out requirements. The 2.5 GHz band –the largest contiguous swath of mid-band spectrum below 3 GHz– has favorable coverage and capacity characteristics for next-generation mobile services. Moreover, this spectrum, previously designated for Educational Broadband Service (EBS) has been largely unused, with much of it unassigned, particularly in rural areas west of the Mississippi River. Through this Rural Tribal Priority Window, the FCC is establishing a process for federally recognized Tribes and eligible Tribally owned entities to apply for overlay licenses for unassigned eligible 2.5 GHz spectrum, before any remaining unassigned spectrum will be made available for commercial use by competitive bidding. As FCC Chairman Pai, who spearheaded the Rural Tribal Priority Window, has said: “the digital divide is most keenly felt in Indian Country….A Tribal priority filing window will help the most marginalized communities in the country gain access to services using this transformative spectrum band.” ^[1]

License Requirements
Applicants for licenses will need to comply with FCC service rules in the 2.5 GHz band, and service rules unique to licenses acquired in the Rural Tribal Priority Window (“Tribal Window”). Most importantly, licenses acquired in the Tribal Window must meet performance requirements, including an interim build-out requirement of mobile service (of reliable signal coverage of 50% of the population of the geographic service area) within two years of initial license grant, and final build-out requirement (of reliable signal coverage of 80% of the population of the geographic service area) within five years of initial license grant. [2] The build-out requirements will be strictly enforced. Missing the interim deadline will result in an acceleration of the final deadline by one year. [3] Licensees that miss the final build-out deadline will be subject to having their licenses cancelled. [4] The Commission strongly encourages potential applicants to conduct due diligence to determine whether they will be able to provide service in the areas for which they intend to apply for a license. Initially, a potential applicant must determine how much unassigned eligible 2.5 GHz spectrum is available. Assuming there is satisfactory spectrum available the potential applicant needs to consider the following network construction considerations: equipment siting; site acquisition and leasing costs; technical requirements including infrastructure and network equipment; whether there are neighboring operations to be protected from interference; system financing or partnership arrangements; system administration and management; and network and backhaul requirements.

Mapping Tool
Tribes and eligible Tribally owned entities can research existing EBS licenses to determine whether there is a available unassigned spectrum in the areas in which they are interest in providing service. The FCC has established a dedicated Rural Tribal Window web page ( https://www.fcc.gov/25-ghz-rural-tribal-maps) which provides a convenient mapping tool to determine spectrum availability (with an individual link for each federally recognized Reservation) along with a link to the Universal Licensing System (ULS) to confirm the exact amount of eligible spectrum available.

Eligible Entities
Applicants must meet four basic eligibility requirements:
(1) Be a federally recognized Tribe or Alaska Native Village, a consortium of Tribes, or an entity majority controlled by a federally recognized Tribe or Alaska Native Village (to include Tribal Colleges and Universities);
(2) The area for which the applicant seeks a license must be an eligible Tribal land (non-reservation lands are ineligible);
(3) The Tribal land must be rural (i.e. not part of an urbanized area or urban cluster area with a population equal to or greater than 50,000); and
(4) The applicant must have a local presence “throughout the Tribal land for which they are applying.” [5] A Federally recognized Tribe will be “presumed to have a local presence on its own Tribal land.” [6]

Applications
Applications for unassigned 2.5 GHz frequencies in the Rural Tribal Priority Window must be filed via the Commission’s ULS system by submitting a shapefile describing the area sought for a license. Use of an unmodified Commission-provided shape file to define the applicant’s proposed service area is “prima facie evidence that the service area is rural” absent the file showing an urbanized area or urban cluster within the Tribal land. [7]The 2.5 GHz Rural Tribal Priority Window will close on August 3, 2020. The FCC is offering prospective Tribal applicants individualized guidance during the Rural Tribal Priority Window, and encourages applicants to inquire by email to RuralTribalWindow@fcc.gov

Mutual Exclusivity
Any applications that have geographic or spectral overlap will be considered mutually exclusive, even if minimal. If the FCC receives mutually exclusive applications, it is required under its rules to use competitive bidding to resolve the mutual exclusivity. If any mutually exclusive applications are filed, the FCC will list such applications by Public Notice, give the applicants a settlement period of 90 days to resolve the mutual exclusivity, and failing such a resolution, will proceed with a closed, single round, sealed bid auction.

Need More Information?
If you need more information or have questions about the Rural Tribal Priority Window, contact Douglas G. Bonner at dbonner@potomaclaw.com or (202) 352-7500. Doug has represented some of the leading Tribally owned communications providers in federal regulatory matters, including obtaining eligible telecommunications carrier designation, and winning federal universal service funding for wireless and wireline broadband networks under The Connect America Fund Phase II and General Mobility Fund reverse auctions. Doug represented Standing Rock Telecommunications, a Tribally-owned wireless carrier, in winning an important decision holding that the FCC has exclusive jurisdiction to designate a Tribally-owned and Tribally-operated carrier as an ETC, and that such a Tribally owned ETC may serve its entire Reservation as an appropriate minimum geographic area, consistent with principles of Tribal sovereignty and universal service goals.