2024-20979. Establishing a 5G Fund for Rural America

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Federal Communications Commission

1. 47 CFR Part 54
2. [GN Docket No. 20-32; FCC 24-89; FR ID 243903]

AGENCY:

Federal Communications Commission.

ACTION:

Proposed rule.

SUMMARY:

In this document, the Federal Communications Commission (Commission or FCC) seeks comment on whether to require a winning bidder in the 5G Fund Phase I auction to demonstrate during the long-form application process that it has obtained the consent of the relevant Tribal government(s) for any necessary access to deploy network facilities using its 5G Fund support on Tribal lands within the area(s) of its winning bid(s).

DATES:

Comments are due on or before October 17, 2024; reply comments are due on or before November 1, 2024.

ADDRESSES:

Pursuant to §§ 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415, 1.419, interested parties may file comments and reply comments on or before the dates indicated on the first page of this document. You may submit comments, identified by GN Docket No. 20-32, by any of the following methods:

• Electronic Filers: Comments may be filed electronically using the internet by accessing the ECFS: https://www.fcc.gov/​ecfs/​.
• Paper Filers: Parties who choose to file by paper must file an original and one copy of each filing.
• Filings can be sent by hand or messenger delivery, by commercial courier, or by the U.S. Postal Service Express Mail. All filings must be addressed to the Secretary, Federal Communications Commission.
• Hand-delivered or messenger-delivered paper filings for the Commission's Secretary are accepted between 8:00 a.m. and 4:00 p.m. by the FCC's mailing contractor at 9050 Junction Drive, Annapolis Junction, MD 20701. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes and boxes must be disposed of before entering the building.
• Commercial courier deliveries (any deliveries not by the U.S. Postal Service) must be sent to 9050 Junction Drive, Annapolis Junction, MD 20701. Filings sent by U.S. Postal Service First-Class Mail, Priority Mail, and Priority Mail Express must be sent to 45 L Street NE, Washington, DC 20554.
• People With Disabilities: To request materials in accessible formats for people with disabilities (braille, large print, electronic files, audio format) send an email to [e-mail] or call the Consumer & Governmental Affairs Bureau at [phone].

FOR FURTHER INFORMATION CONTACT:

Kelly Quinn of the Office of Economics and Analytics, Auction Division, at [phone] or [e-mail], or Valerie Barrish of the Office of Economics and Analytics, Auction Division, at [phone] or [e-mail].

SUPPLEMENTARY INFORMATION:

This is a summary of the Commission's Second Further Notice of Proposed Rulemaking ( Second FNPRM) in GN Docket No. 20-32, FCC 24-89, adopted on August 14, 2024 and released on August 29, 2024. The full text of this document is available for public inspection at the following internet address: https://docs.fcc.gov/​public/​attachments/​FCC-24-89A1.pdf.

Providing Accountability Through Transparency Act. Consistent with the Providing Accountability Through Transparency Act, Public Law 118-9, a summary of this Notice of Proposed Rulemaking will be available on https://www.fcc.gov/​proposed-rulemakings.

Synopsis

1. In the Second FNPRM, the Commission seeks comment on whether to require a winning bidder in the 5G Fund Phase I auction to demonstrate during the long-form application process, and prior to being authorized to receive support, that it has obtained the consent of the relevant Tribal government(s) for any necessary access to deploy network facilities using its 5G Fund support on Tribal lands within the area(s) of its winning bid(s). For purposes of a requirement such as this, the Commission would follow the long-standing precedent articulated in its ( print page 76017) Statement of Policy on Establishing a Government-to-Government Relationship with Indian Tribes ( Policy Statement), 16 FCC Rcd 4078 (2020), of using the term “Tribal Government” to mean “the recognized government of an Indian Tribe that has been determined eligible to receive services from the Department of Interior, Bureau of Indian Affairs.” The term “Indian Tribe,” in turn, is defined in the Policy Statement to mean “any Indian or Alaska Native tribe, band, nation, pueblo, village or community which is acknowledged by the federal government to constitute a government-to-government relationship with the United States and eligible for the programs and services established by the United States for Indians.” The Commission recognizes that the definition of “Tribal lands” adopted by the Commission for the 5G Fund in the 5G Fund Report and Order,85 FR 75770 (Nov. 25, 2020), may not fully align with a Tribal Government's jurisdiction for purposes of providing Tribal consent for all of the areas within a particular winning bid. In that circumstance, a winning bidder would nonetheless need to obtain Tribal consent for any area(s) within the area of a winning bid for which the relevant Tribal Government has jurisdiction to grant such consent before we would award support for that particular winning bid.

2. In its reply comments concerning the 5G Fund Further Notice of Proposed Rulemaking,88 FR 66781 (Sept. 28, 2024), National Tribal Telecommunications Association (NTTA) supports the adoption of a Tribal consent requirement during the long-form process and before the Commission authorizes any 5G Fund support to serve Tribal lands.

3. The Commission seeks comment on whether including a Tribal consent requirement would advance the goals of the 5G Fund and would be administratively efficient for all parties and the Commission. The Commission tentatively concludes that adopting a Tribal consent requirement in its 5G Fund rules is consistent with its long-standing recognition that engagement between Tribal governments and communications providers, particularly early engagement, is an important element to promote the successful deployment and provision of service on Tribal lands.

4. In seeking comment on this issue, the Commission asks commenters to provide input on how it can best assess an applicant's eligibility to be authorized to receive 5G Fund support for the purpose of deploying network facilities that would enable 5G mobile broadband service located on Tribal lands, while incorporating Tribal government consent into the Commission's approval process. The Commission notes that, under the Broadband Equity, Access, and Deployment (BEAD) Program, “an Eligible Entity may not treat as `unserved' or `underserved' any location that is already subject to an enforceable federal, state, or local commitment to deploy qualifying broadband” and a commitment to deploy broadband will not be considered an enforceable commitment “unless it includes a legally binding agreement, which includes a Tribal Government Resolution, between the Tribal Government of the Tribal Lands encompassing that location, or its authorized agent, and a service provider offering qualifying broadband service to that location.” Does including a requirement for a winning bidder to demonstrate that it has obtained Tribal consent during the 5G Fund Phase I long-form application process ensure that evidence of Tribal government consent will be included in the Commission's process of authorizing the winning bidder to receive support? Does such a requirement also provide such evidence during a 5G Fund support recipient's deployment of network facilities to provide 5G mobile broadband service that are located on Tribal lands?

5. The Commission envisions that any Tribal consent requirement it may adopt for the 5G Fund will be a continuation of the Commission's commitment to ensuring Tribal engagement by service providers that receive high-cost universal service support and in furtherance of the Commission's Policy Statement establishing a government-to-government relationship with Tribes. In the Policy Statement, the Commission stated that it “recognizes the unique legal relationship that exists between the federal government and Indian Tribal governments, as reflected in the Constitution of the United States, treaties, federal statutes, Executive orders, and numerous court decisions.” Most recently, in the Enhanced Alternative-Connect America Cost Model Report and Order ( Enhanced A-CAM Report and Order), 88 FR 55918 (Aug. 17, 2023), the Commission recognized “the deep digital divide that persists between Tribal lands and the rest of the country and emphasized that engagement between Tribal governments and communications providers, either currently providing service or contemplating the provision of service on Tribal lands, is vitally important to the successful deployment and provision of service.”

6. As the Commission explained in the Enhanced A-CAM Report and Order, the rules governing the disbursement of high-cost universal service support already include an annual requirement for high-cost recipients whose support areas include Tribal lands to undertake Tribal engagement. Pursuant to § 54.313(a)(5) of the Commission's rules, 47 CFR 54.313(a)(5), a recipient of high-cost support that serves Tribal lands must demonstrate that it has engaged with the relevant Tribal government on a range of issues, including compliance with local rights of way, land use permitting, facilities siting, and environmental and cultural preservation review processes, as well as Tribal business and licensing requirements, that are necessary for a carrier to obtain. The Commission also has historic preservation requirements. See47 CFR 1.1305-1.1320; 47 CFR 17.4; 47 CFR part 1, Appendix B and C. The Commission also reasoned in the Enhanced A-CAM Report and Order that “[t]hrough these obligatory Tribal engagements, and as demonstrated through successfully satisfying the deployment obligations through previous high-cost programs, carriers receiving high-cost support through previous universal service programs should have received consent from the local Tribal government to satisfy the requisite permissions to deploy to certain locations.” Building on its existing rules, and in order to leverage any preexisting coordination and collaboration obligations that a service provider has with a Tribal government to complete the deployment required by the Enhanced A-CAM program, the Commission also determined that it would require carriers receiving Enhanced A-CAM support to initiate engagement with any relevant Tribal government within 90 days of the Wireline Competition Bureau extending an Enhanced A-CAM offer in the Enhanced A-CAM Report and Order. In so doing, the Commission explained that it expects “carriers that intend to accept Enhanced A-CAM offers will act in good faith to provide the relevant Tribe(s) with an opportunity to consent to the Enhanced A-CAM carrier's deployment of broadband in the Tribal area.”

7. Referencing the Tribal engagement rules the Commission adopted in the Enhanced A-CAM proceeding, NTTA states “[a] similar process for the 5G Fund is perhaps even more important due to the structure of the 5G Fund award system (reverse auction) and the fact that, as it now stands, any provider ( print page 76018) may bid on eligible Tribal areas.” The Commission is mindful that, as NTTA advocates, a similar or even more developed process for the 5G Fund may be appropriate because, whereas an Enhanced A-CAM carrier already had a history of tribal engagement, in the 5G Fund Phase I auction any applicant may bid on support to serve eligible Tribal areas. Given the potential challenges that incorporating a Tribal consent requirement might raise in the 5G Fund long-form application process, should the Commission consider following the same Tribal engagement approach as the Commission adopted in the Enhanced A-CAM Report and Order ? Are the provisions included in the Enhanced A-CAM and/or the BEAD programs good analogues for the 5G Fund, given the differences between fixed service and mobile service? Are there other alternatives that the Commission should consider that would result in more equitable and informed outcomes in connection with using 5G Fund support to fund proposed projects to provide advanced, 5G mobile broadband service using facilities that would be located on Tribal lands that would benefit Tribal communities and serve the public interest? Should the Commission use existing high-cost universal service Tribal engagement requirements to develop the criteria necessary to evidence Tribal consent in order to provide more consistency and predictability for both Tribal governments and service providers during the 5G Fund long-form application authorization process?

8. If the Commission adopts a Tribal consent requirement during the 5G Fund long-form application process, how could it structure a requirement for a 5G Fund Phase I auction winning bidder to demonstrate during the long-form application process, and prior to being authorized to receive support, that it has obtained the relevant Tribal government's consent? Given Tribal sovereignty, how should the Commission address circumstances in which a Tribal government neither declines nor provides consent? How might the Commission use existing Tribal engagement requirements to assess the winning bidder's efforts to obtain Tribal consent? What are the costs and burdens of such requirements to providers? How might they be expected to influence auction participation or bidding for support in Tribal lands? As the Commission considers how to frame a requirement for Tribal consent, it also seeks comment on whether it should include parameters similar to the those that the Commission includes for a winning bidder that is applying for a Tribal Land Bidding Credit (TLBC) to demonstrate its compliance with any Tribal consent requirement the Commission may adopt.

9. For instance, using the TLBC requirements as a guide, the Commission could include a requirement that within 180 calendar days after the filing deadline for a 5G Fund long-form application, an applicant seeking 5G Fund support to provide service on Tribal lands must amend its application to submit a certification from the Tribal government(s) that it has granted any required Tribal consent. See47 CFR 1.2110(f)(3)(ii)(A). In particular, the Commission could require that the certification of Tribal consent include: the signature of an official of the Tribal Government and their title; a statement that the Tribal government has not and will not enter into an exclusive contract with the applicant to preclude entry by other carriers and will not unreasonably discriminate among wireless carriers seeking to provide service on the eligible Tribal land; and a statement that the Tribal government will, as applicable, permit the applicant to locate and deploy facilities on the Tribal land consistent with the 5G Fund public interest obligations and performance requirements. The Commission's existing 5G Fund long-form application rules already require an applicant to certify that it will comply with all 5G Fund program requirements, including its public interest obligations and performance requirements, in the areas for which it is a winning bidder, including any such areas that are on Tribal lands. See47 CFR 54.1014(b)(2)(vii). Would using the TLBC certification model, together with this existing long-form application certification required of an applicant seeking to be authorized for 5G Fund support, adequately reflect the contours of Tribal government consent in this context? Under this model, once the certifications from the applicant and the consent of the Tribal government(s) being served are received and reviewed by the Commission and determined to be consistent with the 5G Fund rules, 5G Fund support may be authorized. Should the Commission consider revising the TLBC certification parameters for the purposes of the 5G Fund? Should the Commission include any additional provisions to demonstrate Tribal consent if it adopts such a requirement? Should the Commission require fewer or alternative provisions? Should a process such as the TLBC certification process be adopted, the Commission seeks comment on how it might be able to incorporate flexibility in such a process.

10. In the event that the Commission adopts a Tribal consent requirement for the 5G Fund Phase I auction long-form application process, how can it ensure that consent is valid throughout the term of support? Should a winning bidder's failure to obtain Tribal consent be considered an auction default under the Commission's existing rules? Should there be additional or alternative compliance or enforcement mechanisms?

11. Finally, if the Commission adopts a Tribal consent requirement for the 5G Fund, how can it assist in dispute resolution in the event that a Tribal government reconsiders its consent? Would the Commission need to adopt a specific Tribal consent dispute resolution process? Commenters should address any other issues the Commission should consider in adopting rules related to a Tribal consent requirement for a 5G Fund Phase I auction long form applicant to demonstrate that it has obtained the consent of the relevant Tribal government(s) for any necessary access to deploy network facilities using its 5G Fund support on Tribal lands within the area(s) of its winning bid(s).

12. Are there any reasons why the Commission should decline to adopt such a requirement? Should the Commission consider requiring something less than Tribal consent ( e.g., a different type of engagement than the current requirement in § 54.313(a)(5) of the Commission's rules, 54 CFR 313(a)(5))?

Procedural Matters

13. Regulatory Flexibility Act. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), the Commission has prepared this Supplemental Initial Regulatory Flexibility Analysis (Supplemental IRFA) of the possible significant economic impact on a substantial number of small entities by the policies and rules proposed in the Second FNPRM to supplement the Commission's Regulatory Flexibility Analyses completed in the 5G Fund NPRM,85 FR 31616 (May 26, 2020), 5G Fund Report and Order, 5G Fund FNPRM, and 5G Fund Second Report and Order and Order on Reconsideration. The Commission requests written public comment on this Supplemental IRFA. Comments must be identified as responses to the Supplemental IRFA and must be filed by the deadlines for comments on the ( print page 76019) Second FNPRM. The Commission will send a copy of the Second FNPRM, including this Supplemental IRFA, to the Chief Counsel for Advocacy of the Small Business Administration (SBA).

14. The Commission seeks comment in the Second FNPRM on whether to require a winning bidder in the 5G Fund Phase I auction to demonstrate during the long-form application process, and prior to being authorized to receive support, that it has obtained the consent of the relevant Tribal government(s) for any necessary access to deploy network facilities using its 5G Fund support on Tribal lands within the area(s) of its winning bid(s). The Commission seeks comment on whether including a Tribal consent requirement would advance the goals of the 5G Fund and would be administratively efficient for all parties and the Commission. The Commission tentatively concludes that adopting a Tribal consent requirement in its 5G Fund rules is consistent with its long-standing recognition that engagement between Tribal governments and communications providers, particularly early engagement, is an important element to promote the successful deployment and provision of service on Tribal lands. In seeking comment on this issue, the Commission asks commenters to provide input on how it can best assess an applicant's eligibility to be authorized to receive 5G Fund support for the purpose of deploying network facilities that would enable 5G mobile broadband service located on Tribal lands, while incorporating Tribal government consent into the Commission's approval process.

15. The proposed action is authorized pursuant to sections 4(i), 214, 254, 303(r), and 403 of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 214, 254, 303(r), and 403, and §§ 1.1 and 1.421 of the Commission's rules, 47 CFR 1.1 and 1.421.

16. The RFA directs agencies to provide a description of, and, where feasible, an estimate of the number of small entities that may be affected by the proposed rules, if adopted. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small-business concern” under the Small Business Act. A “small-business concern” is one which: (1) is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the SBA.

17. Regulatory Flexibility Analyses were incorporated into the 5G Fund NPRM, 5G Fund Report and Order, 5G Fund FNPRM, and 5G Fund Second Report and Order and Order on Reconsideration. In those analyses, the Commission described in detail the small entities that might be significantly affected. In this Supplemental IRFA, the Commission hereby adopts by reference the descriptions and estimates of the number of small entities from the previous Regulatory Flexibility Analyses in the 5G Fund NPRM, 5G Fund Report and Order, 5G Fund NPRM, 5G Fund Report and Order, 5G Fund FNPRM, and 5G Fund Second Report and Order and Order on Reconsideration.

18. In the 5G Fund Report and Order, the Commission adopted requirements for winning bidders to submit a post-auction long-form application in which they must submit ownership, agreement, and spectrum access information, as well as information about their qualifications, funding, and the networks they intend to use to meet their 5G Fund public interest obligations and performance requirements. In the Second FNPRM, the Commission seeks comment on whether to add to the existing long-form application requirements a requirement that a winning bidder in the 5G Fund Phase I auction demonstrate during the long-form application process that it has obtained the consent of the relevant Tribal government(s) for any necessary access to deploy network facilities using its 5G Fund support on Tribal lands within the area(s) of its winning bid(s). If the Commission ultimately adopts a rule that would amend its existing rules to require that 5G Fund Phase I auction winning bidders make this demonstration during the long-form application process, it would impact the reporting, recordkeeping, and other compliance requirements for small business and other carriers that apply for 5G Fund support to serve Tribal lands within the area(s) of their winning bid(s).

19. In assessing the cost of compliance for small entities, record does not include a detailed cost-benefit analysis that would allow the Commission to quantify such costs, including whether small entities will be required to hire professionals, and therefore cannot currently quantify the cost of compliance resulting from an adopted requirement that winning bidders demonstrate during the long-form application process that they have obtained the consent of the relevant Tribal government(s) for any necessary access to deploy network facilities using its 5G Fund support on Tribal lands within the area(s) of their winning bid(s). The Commission anticipates, however, that the comments the Commission receives will discuss the compliance costs or burdens resulting from any potential changes to the long-form application rules, and may help the Commission identify and evaluate other relevant compliance matters for small entities associated with this possible requirement, should changes be adopted in this proceeding.

20. The RFA requires an agency to describe any significant alternatives that could minimize impacts to small entities that it has considered in reaching its proposed approach, which may include the following four alternatives (among others): “(1) the establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for such small entities; (3) the use of performance rather than design standards; and (4) an exemption from coverage of the rule, or any part thereof, for such small entities.”

21. The Commission has taken steps to minimize any economic impact from a potential requirement that a winning bidder in the 5G Fund Phase I auction demonstrate during the long-form application process that it has obtained the consent of the relevant Tribal government(s) for any necessary access to deploy network facilities using its 5G Fund support on Tribal lands within the area(s) of its winning bid(s) on small entities. For example, given the potential challenges that incorporating a Tribal consent requirement might raise in the 5G Fund long-form application process, the Commission seeks comment in the Second FNPRM on whether it should consider following the same Tribal engagement approach used by the Commission in the Enhanced A-CAM program, rather than adopting a Tribal consent requirement. The Commission also asks in the Second FNPRM whether there are other alternatives to a Tribal consent requirement we should consider that would result in more equitable and informed outcomes in connection with using 5G Fund support to fund proposed projects to provide advanced, 5G mobile broadband service using facilities that would be located on Tribal lands that would benefit Tribal communities and serve the public interest.

22. The Commission likewise seeks comment in the Second FNPRM on how it could structure a potential requirement for a 5G Fund Phase I ( print page 76020) auction winning bidder to demonstrate during the long-form application process that it has obtained the relevant Tribal government's consent and, for example, whether we should include parameters similar to the those that the Commission includes for a spectrum auction winning bidder that is applying for a Tribal land bidding credit (TLBC) for a 5G Fund winning bidder to demonstrate its compliance with any Tribal consent demonstration requirement the Commission may adopt. The Commission also seeks comment on whether, if it were to include parameters similar to the those that the Commission includes for a spectrum auction winning bidder that is applying for a Tribal land bidding credit in any such 5G Fund Tribal consent requirement it may adopt, whether it should include all of the TLBC certification parameters for the purposes of the 5G Fund or, alternatively, whether it should adopt additional or fewer provisions than required for spectrum auction winning bidders seeking a TLBC. Further, the Commission seeks comment on how it might be able to incorporate flexibility if we were to adopt a process such as the TLBC certification process in connection with any Tribal consent demonstration requirement it may adopt. Finally, the Commission seeks comment on whether it should consider requiring something less than Tribal consent of winning bidders ( e.g., a different type of engagement than the current requirement in § 54.313(a)(5)).

23. The Commission expects to more fully consider the economic impact and alternatives for small entities following the review of comments and costs and benefits analyses filed in response to the Second FNPRM. The Commission's evaluation of this information will shape the final alternatives it considers, the final conclusions it reaches, and any final actions it ultimately takes in this proceeding to minimize any significant economic impact that may occur on small entities.

24. There are no federal rules that duplicate, overlap, or conflict with the rules proposed herein.

25. Ex Parte Presentations—Permit-But-Disclose. The proceeding this document initiates shall be treated as a “permit-but-disclose” proceeding in accordance with the Commission's ex parte rules. Persons making ex parte presentations must file a copy of any written presentation or a memorandum summarizing any oral presentation within two business days after the presentation (unless a different deadline applicable to the Sunshine period applies). Persons making oral ex parte presentations are reminded that memoranda summarizing the presentation must: (1) list all persons attending or otherwise participating in the meeting at which the ex parte presentation was made; and (2) summarize all data presented and arguments made during the presentation. If the presentation consisted in whole or in part of the presentation of data or arguments already reflected in the presenter's written comments, memoranda or other filings in the proceeding, the presenter may provide citations to such data or arguments in his or her prior comments, memoranda, or other filings (specifying the relevant page and/or paragraph numbers where such data or arguments can be found) in lieu of summarizing them in the memorandum. Documents shown or given to Commission staff during ex parte meetings are deemed to be written ex parte presentations and must be filed consistent with § 1.1206(b) of the Commission's rules. In proceedings governed by § 1.49(f) of the Commission's rules or for which the Commission has made available a method of electronic filing, written ex parte presentations and memoranda summarizing oral ex parte presentations, and all attachments thereto, must be filed through the electronic comment filing system available for that proceeding, and must be filed in their native format ( e.g.,.doc, .xml, .ppt, searchable .pdf). Participants in this proceeding should familiarize themselves with the Commission's ex parte rules.

Ordering Clauses

26. It is ordered that, pursuant to the authority contained in sections 4(i), 214, 254, 303(r), and 403 of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 214, 254, 303(r), 403, and §§ 1.1 and 1.421 of the Commission's rules, 47 CFR 1.1, 1.421, this Second FNPRM is adopted.

27. It is further ordered that the Commission's Office of the Secretary, shall send a copy of this Second FNPRM, including the Supplemental Initial Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration.

Federal Communications Commission.

Marlene Dortch,

Secretary.