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Posted on Techdirt - 9 December 2020 @ 12:03pm

The FCC, 2.5 GHz Spectrum, And The Tribal Priority Window: Something Positive Amid The COVID-19 Pandemic

Never has “necessity is the mother of invention” rung more true than in trying to get high speed broadband to Native Americans. Long on the other side of the “digital divide,” Tribes have struggled to attract traditional carriers to provide service on their reservations, where population densities are low, poverty rates are high, and a Byzantine array of federal, state, and Tribal regulations related to rights-of-way stall or derail deployment efforts. In a dramatic mid-pandemic paradigm shift, Native Americans are becoming the early adopters of a promising wireless technology – the 2.5 GHz band.

The FCC’s 2010 National Broadband Plan identified, and attempted to quantify, for the first time, the digital divide in Indian Country. The FCC has taken significant positive steps to close the digital divide, but most of those steps have involved tweaks around the edges. A heightened Tribal variable in the High Cost program helps provide slightly more money to carriers. Reverse-style auctions in the Tribal Mobility Fund and upcoming Rural Development Opportunity Fund (RDOF) help carriers deploy to the next cheapest areas (since funds are awarded to the carrier seeking the lowest amount of support), but don’t really address how to get broadband deep into the heart of rural America (or rural Tribal lands).

When the FCC decided to overhaul the underutilized 2.5 GHz Educational Broadband Service (EBS) in 2019, it turned to an approach long-advocated in Indian Country – a Tribal Priority on the spectrum. (I was fortunate to have been involved with helping push for the Broadcast Tribal Priority in 2008.) Used only once before, in the broadcast service, FCC Chairman Pai went far out on a limb to propose giving Tribes first dibs on any unused spectrum. The Broadcast Tribal Priority has been something less than a success, with fewer than a dozen AM and FM stations awarded to Tribes under the program over the past decade.

The FCC set a relatively short window for filing applications, yet 457 applications were filed, representing the vast majority of the 574 federally recognized Tribes, and virtually all Tribes that have reservations that are not in urban areas.

Meanwhile, while the FCC considers the pending applications, the agency “doubled down” on the “Tribal window” by allowing Tribes to receive special temporary authority (STAs) to utilize the spectrum. The FCC granted the Navajo Nation an STA for the largest single reservation — to provide students with broadband access during the COVID-19 pandemic.

The Navajo Nation put together a unique and diverse team in order to deploy the 2.5 GHz spectrum quickly. Navajo Technical University (NTU) is the lead on the project, working with local carrier Sacred Wind Communications and MuralNet, an outside consultant The team leveraged a National Science Foundation Award (#1827199 “Nilch Bee Naa Alkaa Go Ohooa Doo Eidii Tii (Using Air (Technology) to Learn and Understand New Things”)) for backhaul and quickly began deploying 2.5 GHz equipment around its Crownpoint, NM, campus, to provide free service to college students.

Early data indicate that the 2.5 GHz spectrum is performing well above theoretical predictions, even on the topographically diverse Navajo Nation. Students who previously had no affordable and reliable broadband service because the total lack of wireline infrastructure can now continue their studies from home. Those relatively close to the towers where 2.5 GHz spectrum antennas are deployed are enjoying 25 Mbps download and 6 Mbps upload speeds. One student lives more than four miles away, and not within line-of-site of the tower, yet is still getting consistent speeds of 8 Mbps down and 10 Mbps up. And that’s with first-generation gear, sure to improve as the 2.5 GHz spectrum is further developed and deployed.

But most important, students are getting access to broadband now, during the pandemic, when they need it most. Instead of Navajos having to wait years for carriers to deploy new technologies first in urban areas and then ever so slowly into more rural areas, Tribes get to jump to the “front of the line” with 2.5 GHz spectrum. For once, Tribes get to be early-adopters.

If ever there was a win-win-win story in these bleak times, the 2.5 GHz spectrum is it. FCC Commissioners were willing to take the risk of providing spectrum directly to Tribes now, instead of just auctioning it off to the highest bidders sometime in 2021. The FCC staff then moved swiftly to grant the STAs needed to begin deployment. And Tribes responded by leveraging all the assets they could come up with to provide broadband to their students, many of whom had been in continued lockdown since March. We should congratulate everyone in this virtuous cycle. It’s a model to which the FCC, and the entire federal government, should look. Get assets into the hands of those at the local level who can make use of them most quickly, and watch what happens when those with the most need, and most “skin in the game” have a seat at the table.

Oh, and the icing on the regulatory cake? Pilot projects such as that on the Navajo Nation are clearing the path for future deployment of this spectrum. Indeed, the value of the remaining 2.5 GHz spectrum which goes up for auction next year, may well increase significantly based on these test cases, netting the federal government more money than if they’d held back the spectrum and auctioned it off without any real understanding of its technical capabilities. And that, ladies and gentlemen, is a true return on investment!

James E. Dunstan is General Counsel to TechFreedom. In his private practice at Mobius Legal Group, PLLC, he represents the Navajo Nation in matters before the FCC

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