Merkley, Wyden, Colleagues Introduce Legislation to Extend Tribal Broadband Application Deadline

Oregon’s U.S. Senators Jeff Merkley—the Chair of the Senate Appropriations subcommittee that funds the U.S. Department of the Interior—and Ron Wyden joined their colleagues in introducing the Extending Tribal Broadband Priority Act of 2021, legislation to expand the Federal Communication Commission’s (FCC’s) 2.5 GHz Rural Tribal Priority Window. This bill will allow tribal nations and Native Hawaiian organizations the time they need to apply for spectrum licenses for unassigned spectrum over their own lands—a critical step to expanding broadband access in their communities.   

“The pandemic has reinforced what has been obvious for years: Access to broadband is essential,” Merkley said. “For too long, big business has put profit above all else. That’s led to tribal communities that are left out and unable to connect to the rest of the world with high-speed internet access. Even as we stepped up to bridge the gap, the FCC placed arbitrary restrictions on the application process that prevented tribal communities from fully utilizing programs designed to help. The Extending Tribal Broadband Priority Act of 2021 will help correct the FCC’s misstep and ensure that all of us have the broadband access we need to stay connected in the 21st century.”

“Tribal communities in Oregon and nationwide need reliable links to broadband that can connect their members to telehealth and education as well as employment and small business opportunities,” said Wyden, who also is urging the FCC to make rural broadband a priority. “This legislation would help address historic inequities facing tribes by providing them a fair shot to apply for high-speed internet access that’s an essential service for quality of life now and in the future.”

The FCC created the 2.5 GHz Rural Tribal Priority Window in 2019 to provide tribal nations and Native Hawaiian organizations an opportunity to apply for spectrum licenses over their land. Even when the Window was still open, the FCC received numerous requests to extend the 2.5 GHz Rural Tribal Priority Window for application by no less than 180 days from the original deadline of August 3, 2020. The FCC refused to implement an extension and instead added a severely limited 30-day application period. The Window expired on September 2, 2020, before many tribal nations and Native Hawaiian organizations were able to apply—in some cases due to the COVID-19 pandemic—and the FCC declined to extend the deadline any further, in opposition to multiple requests made by tribal nations, Native Hawaiian organizations, telecommunications groups, and bipartisan Senate and House lawmakers. 

The Extending Tribal Broadband Priority Act of 2021 will require the FCC to open a new 2.5 GHz Rural Tribal Priority Window that lasts at least 180 days, to commence no later than 30 days after the bill is enacted. This bill will give tribal nations and Native Hawaiian organizations an adequate amount of time to apply for spectrum licenses to deploy much-needed internet services on their lands. 

Today, the United States scores above the world average for connection rates to fixed broadband services for Americans living in housing units urban areas, 99 percent have access to broadband services, but only 65 percent of Americans living on tribal lands have access to these services. According to the American Indian Policy Institute, one in five residents on reservations lack internet at home. Because tribal nations and Native Hawaiian organizations cannot access spectrum rights to deploy broadband and telephone networks over their tribal lands, in some of the most geographically isolated areas in the country, Native Americans continue to suffer from lack of access to life-saving digital services and broadband access that many of us take for granted. This further places tribal nations and Native Hawaiian organizations behind in the digital divide.

The Extending Tribal Broadband Priority Act of 2021 specifically:

  • Establishes a new 2.5 GHz Rural Tribal Priority Window;
  • Requires that the FCC open this new window no later than 30 days after the bill is enacted; and
  • Creates additional time for tribal nations and Native Hawaiian organizations to apply for unassigned spectrum licenses over tribal lands to deploy internet services. 

The bill has broad support, including from Access Now; AMERIND; AMERIND Critical Infrastructure; Center for Rural Strategies; National Congress of American Indians; National Consumer Law Center; National Hispanic Media Coalition; National Indian Education Association (NIEA); Native American Finance Officers Association (NAFOA); New America’s Open Technology Institute; Public Knowledge; Pueblo of Jemez; Saint Regis Mohawk Tribe; Schools, Health & Libraries Broadband (SHLB) Coalition; Southern California Tribal Chairmen’s Association; USET Sovereignty Protection Fund; and Gigi Sohn, Distinguished Fellow, Georgetown Law Institute for Technology, Law & Policy and Benton Senior Fellow & Public Advocate.

This legislation is led by U.S. Senator Elizabeth Warren (D-MA). In addition to Senator Merkley and Senator Wyden, this bill is co-sponsored by Senators Tina Smith (D-MN), Angus King (I-ME), Edward J. Markey (D-MA), Catherine Cortez Masto (D-NV), Mazie K. Hirono (D-HI), Amy Klobuchar (D-MN), Bernard Sanders (I-VT), Brian Schatz (D-HI), Gary Peters (D-MI), Tammy Baldwin (D-WI), Cory Booker (D-NJ), and Jacky Rosen (D-NV).

“Indigenous lands are some of the least connected areas of the U.S., with nearly one-in-five reservation residents lacking reliable internet access at home. The COVID pandemic has highlighted the disparities between the internet haves and have-nots, and has amplified the harm caused by lack of internet access. Without the internet, it is so much harder to get vaccinated, find a job, access education, and more. This legislation would be a major step forward in closing the digital divide in Indigenous communities,” said Willmary Escoto, U.S. Policy Analyst at Access Now

“AMERIND endorses this important legislation for the FCC to establish a new Tribal Priority Window for those Tribal Nations that were unable to acquire a 2.5 GHz license in the prior window.  Tribes need the FCC to work directly with them to provide much needed access to more spectrum and the Extending Tribal Broadband Priority Act of 2021 will accomplish this in 2.5 GHz licensing.  Tribal Nations have been hit hard during the COVID-19 pandemic, and the lack of robust broadband networks has only exacerbated the effects of the long-standing Tribal digital divide on their households, schools, and economies.  Federal legislative efforts that will continue to keep important additional spectrum and broadband infrastructure needs in the forefront are needed throughout Indian Country,” saidGeoffrey Blackwell, Chief Strategy Officer and General Counsel, AMERIND

“AMERIND Critical Infrastructure supports and endorses the Extending Tribal Broadband Priority Act of 2021, which directs the FCC to open a new Tribal Priority Window for those Tribes unable to apply during the original window.  The effects of the COVID-19 pandemic have disproportionately impacted Tribal governments and Tribal communities, and this bill gives Tribes a fair and equal opportunity to apply for this once-in-a-generation opportunity to obtain a spectrum license,” said Irene Flannery, Director, AMERIND Critical Infrastructure

“Tribal spectrum access is critical to closing the digital divide in Indian Country,” said President Fawn Sharp of the National Congress of American Indians (NCAI).  “NCAI’s membership, has longed supported increasing access to spectrum for tribal nations through resolutions: SD-15-037, ‘Urging the Federal Communications Commission to Improve Access to Spectrum Licenses for Tribal Nations’ and MKE-11-007, ‘In Support of a Tribal Priority for the Utilization of Spectrum on Tribal Lands.’ The FCC’s tribal priority window on the 2.5ghz spectrum presented a valuable opportunity in 2020 but unfortunately many eligible Tribal Nations were unable to apply due to the COVID-19 pandemic. We thank Senator Elizabeth Warren for her efforts to ensure Tribal Nations have access to spectrum over their lands by re-opening the FCC’s Tribal Priority Window.”

“Tribes deserve a fair shot at this rare opportunity to expand internet access. They shouldn’t have to organize a Day of Action — in the middle of a pandemic, no less — simply to get the FCC to pay attention to a request for adequate time. Congress should pass a law to extend the Tribal Priority Window and give Tribes the respect they deserve,” said Joshua Stager, Deputy Director, New America’s Open Technology Institute

“Broadband is essential, but Tribes are disproportionately left without the ability to connect. Public Knowledge commends Sen. Warren for her work to help close the digital divide on Tribal lands. The FCC provided this laudable opportunity for Tribes to gain access to spectrum to help address the digital divide, but missed an opportunity to achieve that goal by failing to adequately extend the deadline for applying as a result of the COVID-19 pandemic. Thirty days was not enough. This bill remedies that failure. We look forward to seeing Tribes utilize this spectrum to ensure connectivity for their communities,” said Jenna Leventoff, Senior Policy Counsel, Public Knowledge

Spectrum over tribal lands, as any other resource, should be owned by the tribes to be used as determined & prioritized by them for the direct benefit of their tribal members,” said Pueblo of Jemez Department of Education

“The 2.5 GHz spectrum can be transformational for Tribal Nations – particularly those in remote areas that providers do not serve, as we’ve seen with the Havasupai Nation. We applaud Senator Warren for working to create additional opportunities for Tribes to access the spectrum on their lands. Passing the Extending Tribal Broadband Priority Act of 2021 would enable Tribal Nations across the country to deploy, own, and operate their own broadband networks, as is their sovereign right,” said John Windhausen, Schools, Health & Libraries Broadband (SHLB) Coalition

“Ownership of spectrum plays a critical role for Tribal Nations in the deployment of urgently needed broadband and other mobile communications services on Tribal lands. For decades, industry has dominated the purchasing of spectrum licenses over our homelands and has either failed to deploy communications services, or charges us exceedingly high service rates for unreliable connectivity. As our nation becomes ever more dependent upon connectivity, including to combat COVID-19 and to maintain our way of life amid lockdowns, the digital divide between Indian Country and other communities throughout America becomes even more stark. With the FCC refusing to honor its obligations to Indian Country, Congress must step up to ensure all Tribal Nations have the opportunity to access spectrum rights over our sovereign territories. USET SPF supports the Extending Tribal Broadband Priority Act, which would expand access to spectrum ownership across Indian Country,” said Chief Kirk Francis, President, USET Sovereignty Protection Fund

“Senator Warren’s bill rights an egregious wrong of the Trump FCC – refusing to extend adequately the tribal priority window for prime 2.5 GHz spectrum.  Despite the disproportionate impact of the COVID-19 pandemic on Indian Country, the FCC gave tribal entities an extension of just 30 days – not nearly enough time to prepare and submit an application to the FCC, especially during a pandemic. The bill creates a new tribal priority window, giving tribal entities a longer and just opportunity to gain access to the public airwaves on tribal land necessary for robust Internet access,” said Gigi Sohn, Distinguished Fellow, Georgetown Law Institute for Technology, Law & Policy/Benton Senior Fellow & Public Advocate

The text of the bill can be found here.