FCC Isn't Expected to Change Course on AWS-3 Tribal Window
Despite pressure from tribal and public interest groups, the FCC appears unlikely to change rules for the AWS-3 auction to allow a tribal window, industry officials and observers said Friday. With Olivia Trusty, a second Republican, joining the commission, Chairman Brendan Carr probably has the votes to approve auction rules regardless of opposition from Democratic Commissioner Anna Gomez, officials said. The agency is scheduled to vote on the order Thursday.
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The primary reason that the FCC isn't likely to address the tribal window is what's emphasized in the draft order, “which is that Congress gave them special auction authority to raise as much revenue as possible, as soon as possible, to offset the cost of rip-and-replace reimbursements for operators replacing Chinese networking infrastructure, a requirement also mandated by statute but grossly underfunded,” said an industry lawyer monitoring the proceeding. “The perception of a loss of potential revenue is a good excuse to go along with the mobile industry in opposing any complication in this particular auction.”
New Street’s Blair Levin also said he'd be surprised if Carr reversed course.
Public Knowledge, the National Congress of American Indians (see 2507140042) and the Coalition of Large Tribes (see 2507080042) are seeking a window similar to the one in the 2.5 GHz auction. Rules for the auction were devised under a Republican-controlled FCC during the first Trump administration.
The FY 2025 National Defense Authorization Act authorized the auction, the FCC’s first for full-power licensed spectrum since 2022. Part of the proceeds will fully fund the agency's Secure and Trusted Communications Networks Reimbursement Program.
Oliver Semans, executive director of the Coalition of Large Tribes, said in an email that getting the FCC to make a change won’t be easy. “We are trying to stop a moving train, and the administration is trying to put money in the coffers as soon as possible, and I believe they think ... opening up the tribal window may slow this down from happening,” he said. “We need to explain that a tribal window is not going to slow down the auction, and they can still place funding in the coffers.”
The group hopes that by “educating the White House, Congress and the FCC, we might have a chance,” Semans said. The order would also limit tribal input by eliminating National Historic Preservation Act and National Environmental Policy Act reviews, he said, which are required under federal law.
The commission is “unlikely to change course," predicted Public Knowledge Senior Vice President Harold Feld. "Congress set a specific revenue target for rip-and-replace, and ... this is an inventory auction, and therefore the license areas are not as easy to align with tribal lands,” he noted. “The easiest thing in such an unusual situation is to say, ‘Let's not rock the boat, let's just run a standard auction.’” But Feld said he was encouraged that the draft treats the auction as a “special case” and hasn’t closed the door on tribal windows in future auctions. The window shouldn’t be a partisan issue, he added.
“Tribal advocates will press their case regardless of the outcome," said Michael Calabrese, director of the Wireless Future Program at New America. "A broader principle is at stake, which is that our government has treaties with tribal nations giving them control over natural resources on their lands, something the FCC has long resisted recognizing when it comes to spectrum rights.”
The Competitive Carriers Association, meanwhile, asked for other changes to the auction rules affecting small carriers. The FCC should “adopt inflation-indexed definitions of small and very small businesses,” the group said last week in docket 25-70. “Specifically, the respective revenue thresholds should be determined at the time the public notice is issued announcing each auction, from a benchmark of $55 million in July 2015 dollars for small businesses and $20 million in July 2015 dollars for very small businesses, adjusted according to the Consumer Price Index.”
The FCC should also change the proposed credit percentages in the draft order “to account for inflation and better address competitive market dynamics,” the association said. “After years of high inflation, with six in ten small business owners citing it as a serious challenge, the Commission must provide these businesses with the tools they need to compete and grow.”
CTIA supported the FCC, saying the draft order doesn't require a tribal window. The order "advances the objectives of Congress and the Commission to focus on making our networks more secure and making more spectrum available,” the group said in a filing. “The Commission should reject calls to stray from these findings, and move forward with adopting the Draft Order.”