Fight Continues at FCC Over Proposed AWS-3 Tribal Window
Approved by Congress last year (see 2412180027), the Spectrum and Secure Technology and Innovation Act makes clear that the FCC must auction all AWS-3 licenses remaining in its inventory, CTIA said in reply comments about an auction procedures NPRM. Whether the FCC should create a tribal licensing window (TLW), which could allow tribes to obtain spectrum for some of the least-connected communities in the U.S., remains a contentious issue (see 2504010055). Comments were posted Tuesday in docket 25-70.
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“Congress did not say that the Commission may hold an auction if it is in the public interest to do so, or that the Commission must hold an auction but only for a portion of the AWS-3 inventory,” CTIA said. The group said a tribal window would violate Section 309(j) of the Communications Act, which requires the FCC to assign licenses through competitive bidding when there are mutually exclusive applications.
“A window would likely slow down the auction of this valuable spectrum, which has already been sitting in the Commission’s inventory unused for a decade,” and “could lower the revenues from the auction -- despite Congress’s intention that the proceeds from Auction 113 go to fund the ‘rip and replace’ program,” CTIA said: The commission “has other legal mechanisms to encourage access to spectrum on Tribal lands, such as the Tribal Lands bidding credit.”
Tribal and public interest groups stressed the importance of a window in a joint filing, countering CTIA. “The Commission has previously rejected CTIA’s argument that the Communications Act does not permit a TLW, first in the context of broadcast services, and subsequently in the 2.5 GHz auction,” they said.
Their filing was signed by the National Congress of American Indians, Tribal Digital Village Network, Waskawiwin, Public Knowledge, the Institute for Local Self-Reliance, X-Lab, the Benton Institute for Broadband & Society and the Open Technology Institute at New America. A tribal window “would allow for coverage of Tribal lands previously excluded, and would take into account the failure of licensees covering Federal trust lands and non-rural Tribal lands to adequately serve Tribal citizens and other residents of Tribal lands,” they said.
“The Commission has both legal authority and policy justification to implement a TLW,” the Navajo Nation Telecommunications Regulatory Commission said. Based on recent Census numbers, “Tribal residents in New Mexico and Arizona have among the lowest rates of broadband access, with 70% or less using broadband internet,” the tribal regulator said. “Over the past decade, the [FCC] has opened a TLW for broadcast services, and more recently, for the 2.5 GHz auction, which means CTIA’s argument that the Communications Act does not permit a TLW is moot.”
WISPA countered arguments by EchoStar and Council Tree Investors that the FCC must use the same designated entity rules in the reauction of AWS-3 licenses that it followed in the original 2014 auction (see 2504020017). The FCC “should increase the bidding credit amounts for each designated entity tier to encourage greater participation by smaller entities, such as WISPA’s members, that may face significant barriers to gaining access to licensed spectrum.”
WISPA agreed with EchoStar and Council Tree that the FCC shouldn’t impose a cap on bidding credits. “As Council Tree’s research demonstrates, spectrum auctions that included a bidding credit cap ‘were not competitive at all,’” WISPA said.