DC Circuit Pushes FCC to Justify Tribal Lifeline Restrictions, Questions Petitioner Arguments

Judge Judith Rogers suggested the FCC gave little basis for its predictive judgment that funneling the $34.25 per-subscriber monthly tribal subsidies exclusively to facilities-based providers would spur broadband network deployment on Native American lands. Judge Raymond Randolph questioned why the commission didn't do the new rulemaking it seemed to float in 2016. Judge Thomas Griffith noted petitioner arguments that the FCC's network-deployment emphasis abruptly changed its primary Lifeline focus on making service more affordable to low-income consumers. Rogers is a Democratic appointee; Randolph and Griffith are GOP appointees.

The FCC failed to consider the impact of banning resellers from receiving the enhanced tribal support and how it would affect affordability and subscribership, said NaLA counsel John Heitmann. He said the ban threatens service to two-thirds of tribal Lifeline users, given the lack of alternative providers. Griffith noted FCC interest in promoting broadband deployment but questioned if it adequately explained its decision. When Heitmann said the four national wireless carriers aren't tribal Lifeline players, Randolph suggested they were undercut by resellers but might "fill the vacuum" if resellers are banned. Heitmann said the big four chose not to offer tribal Lifeline because they didn't want to incur the costs and burdens.

Crow Creek Sioux Tribe Counsel Shiva Goel said the order would "drastically reduce" tribal access to affordable communications, "flatly contrary" to the stated goal. He said no big four carrier expressed interest in providing tribal Lifeline service, even Sprint, which has "meaningful" Lifeline service. Randolph questioned whether resellers would withdraw from the tribal market if they receive only the regular $9.25 per subscriber Lifeline subsidy. Goel said there would "certainly" be reduced service and noted the FCC created the enhanced support because of a tribal "affordability crisis."

Under Rogers questioning, Goel said a 2017 draft order didn't give adequate notice of plans. Randolph asked why petitioners didn't ask for a new comment period after a 2015 NPRM. Goel noted a 2016 order said the FCC didn't "prejudge" tribal issues, which "remain open for consideration in a future proceeding more comprehensively focused on advancing broadband deployment on Tribal lands" (p. 77).

Randolph focused on that 2016 language in questioning FCC attorney Thaila Sundaresan. He said the "future proceeding" seemed to promise a new rulemaking with notice of comment that didn't happen, and repeatedly asked for explanation. Sundaresan suggested the language was "inartfully drafted" but said at worst it's a "harmless" minor issue.

Rogers pressed for evidence justifying the FCC expectation facilities-based providers would replace resellers if banned. Sundaresan said the agency believed the ban would lead to more robust network deployment, but Rogers said there's "no backup" supporting that. Sundaresan said the FCC made a predictive judgment that was entitled to great deference, and cited the tribal Lifeline interest of Smith Bagley and the backing of 20 tribes for the ban. Rogers questioned the sufficiency of one carrier's interest and said tribes with their own networks could be expected to support banning resellers. Sundaresan said resellers provided tribal service for years without advancing deployment while leaving the Lifeline budget "bloated."

Sundaresan said targeting tribal support to rural areas was reasonable, given their lower levels of communications access. When Griffith asked about the effect on overall tribal subscription, given the affordability concern, Sundaresan said Lifeline providers still offered urban tribal users basic plans with reasonable levels of voice, text and data usage. Heitmann said some small communities with tribal members were roped into the FCC's Lifeline urban definition, but didn't find out until six months after the order.