United States: Opportunities For Indian Tribes To Bridge The Digital Divide

There is no question the issues facing rural communities nationwide are magnified on most Indian reservations. Infrastructure and access to basic utilities lead the list of long-standing issues. Indian tribes, perhaps more than any other community, have been historically disadvantaged by the lack of investment available to address energy, water and transportation needs—the foundation for a community's quality of life as well as its prospects for economic success. Now, broadband access has become another foundational issue—critical to the well-being of native people because of its importance in the areas of education, healthcare, public safety and general commerce. Once again, though, Indian Country has fallen substantially behind the rest of the nation in gaining access to a critical service that is providing substantial benefits to the rest of the nation.

In 2016, over 35% of the population in Indian Country lacked access to the minimum level of advanced telecommunication services (defined as 25 megabits per second (Mbps) upload and 3 Mbps download) as compared to just 2% of their urban neighbors.1 On the positive side, this represents an improvement over 2014 when 41% of those in Indian Country lacked such access.2 Over the past several years, increasing attention has been paid to the digital divide that exists between urban and rural areas. And even as there is an ongoing effort to understand the magnitude of that divide, plans and actions are being undertaken to expand access and improve the situation. Recent congressional action, coupled with initiatives underway at the Federal Communications Commission (FCC), are providing opportunities to expand broadband access and bring its benefits to regions greatly in need. This paper highlights several recent initiatives of which tribal clients should be aware. These initiatives may provide significant opportunities to assist tribal leaders in addressing the need for broadband access and further economic, educational and quality-of-life goals for tribal communities.

Policy and Program Initiatives in 2018 Omnibus Appropriations Bill

The 2018 Omnibus Appropriations Bill enacted in late March contained several provisions to assess, coordinate and support opportunities to expand broadband access, particularly in underserved areas such as Indian Country. Significantly, Congress included the Tribal Broadband Deployment Act within the massive spending bill, requiring the FCC to (1) evaluate the extent of broadband coverage in Indian Country and report back to Congress by April 2019, and (2) initiate and complete a rulemaking proceeding by the end of 2020 that addresses the underserved areas identified in the 2019 report.3 The Bureau of Indian Affairs is also directed to report back to Congress this month (July) on a scalable plan to increase bandwidth in schools and overall efforts to coordinate with other agencies on accomplishing a technology buildout that expands broadband availability on Indian reservations and villages. Perhaps most significant on a short-term basis, Congress expanded existing funding efforts by including $600 million in funding for the Department of Agriculture's Rural Utility Service for a pilot to establish a new broadband loan and grant program. The primary purpose of the pilot is to assist in closing the digital divide by focusing on rural areas without sufficient access to broadband.4 Clearly, expanding broadband access in Indian Country and similar regions across the United States will be a sustained and focused effort over the next couple of years.

FCC Rulemaking on "Transforming the 2.5 GHz Band"

In addition to the federal programs providing direct financial support and incentives to increase broadband access in underserved areas, the FCC is looking at other opportunities to accomplish that goal. One such effort is a Notice of Proposed Rulemaking (NPRM) proceeding formally initiated on June 7, 2018, to make use of a significant portion of valuable wireless spectrum that is currently unused because it has been reserved for educational purposes as part of the Educational Broadband Service (EBS). The 2.5 GHz band (2496–2690 MHz), which was set aside as part of the EBS, "is prime spectrum for next generation mobile operations, including 5G uses."5 To put this into context, the 700 MHz to 3 GHz spectrum is in high demand due to its utility in providing mobile data and voice services. Most of this spectrum has already been allocated, and given the short supply and increasing demand, unallocated band of this spectrum is in high demand in many areas.6

Recognizing the increasing need, demand and inefficiencies involved in unused spectrum, the FCC has initiated a rulemaking to permit more flexible use of the 2.5 GHz band so that full use of this EBS spectrum can help provide advanced mobile broadband services, particularly in rural areas where much of the spectrum lies fallow. Specifically, the FCC's proposal on which it is seeking comment is to (1) improve the geographic definition of current licenses and provide additional flexibility in how those licenses are used7; (2) create an opportunity for local priority entities, including existing licensees, Indian tribes and other educational entities to apply for new licenses (outside of a competitive auction process) in the unassigned EBS spectrum; and (3) open up through an auction, any remaining unused EBS spectrum for new licenses and commercial uses.

This is a complicated rulemaking that is currently on a very fast track. With respect to the issue of whether to provide an opportunity for tribes to obtain licenses as priority entities, there are at least seven specific questions posed within the NPRM on whether and how to include tribes. Initial comments are due on July 9, 2018, with reply comments due on August 6, 2018. Given the competition for unused spectrum, there is likely to be significant interest in the rulemaking. For that reason, it is important for tribes seeking to expand broadband access throughout tribal communities to weigh in and encourage the FCC to maintain its approach that would assist tribes in developing opportunities to bridge the digital divide. Acquiring a license for an unused and valuable portion of the wireless spectrum would lay the groundwork for addressing broadband needs within Indian Country, particularly for educational purposes. In addition, depending on the flexibility accorded to the use of new licenses, any such licenses may provide a valuable economic asset for the long-term benefit of tribal communities.


1. Remarks of FCC Commissioner Mignon L. Clyburn, Broadband Connectivity in Tribal and Rural Communities, Washington, DC (Apr. 12, 2018).

2. The Least Connected People in America, Politico (Feb. 17, 2018).

3. Consolidated Appropriations Act, P.L. 115-141, Div. P, Sec. 508.

4. P.L. 115-141, Div. A, Sec. 779.

5. 83 Fed. Reg. 26397 (June 7, 2018).

6. In 2015, over two-thirds of Americans had a smartphone, almost doubling the amount in 2011. Total mobile traffic in the U.S. in 2015 grew 56%. Mobile data usage is projected to reach 3.6 exabytes per month in 2019, seven times more traffic than in 2014. American Action Forum, Everything You Need to Know About Spectrum: A Primer (June 9, 2016).

7. Current licensees are limited to (1) accredited educational institutions; (2) governmental organizations engaged in education; and (3) nonprofit organizations with educational purposes. Incumbent EBS licenses cover only about one-half of the U.S. in any given channel and most of the rural west remains unassigned. 83 Fed. Reg. 26397.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions