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Transcript of NPM Brown Paper - TLPC 6-5-09 (Clean)
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A PAPER ON
SPECTRUM ACCESS IN INDIAN COUNTRY
BY NATIVE PUBLIC MEDIA
IN PARTNERSHIP WITH THE
Samuelson-Glushko Technology Law & Policy Clinic
2009
JULIE PENNER
BHAVIN PAREKH
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FOREWORD
Since December 2004, Native Public Media has explored, researched and commented on the
topics of telecommunications policy as it affects Native Americans. NPM’s involvement
highlights the federal government’s trust responsibility to federally recognized Tribes, provides
new insights on technologically complex and politically sensitive issues, and illuminates
understanding about the impact of telecommunications policies upon Native Americans.
In Spring 2009, Native Public Media entered into a partnership with Colorado Law School’s
Samuelson-Glushko Technology Law and Policy Clinic. This relationship combines Indian
Law expertise with technology policy analysis. The result is Native Public Media’s first Paper
on Spectrum Access in Indian Country. In the words of its student authors, Julie Penner and
Bhavin Parekh, this project is the first step toward raising awareness of spectrum issues in Indian
Country and -- perhaps just as important -- stimulating additional discussion regarding other
spectrum policies in Indian Country. While there are a host of spectrum issues the students
could have studied, Penner and Parekh narrowed their investigation to three areas: (1) spectrum
needs in Indian Country; (2) a proposed exemption concerning spectrum utilization of the 3650
MHz band; and (3) relaxed power limits in unlicensed spectrum for certain rural areas of Indian
Country.
We are deeply grateful for the guidance, support, expertise and counsel of the Native
Public Media Policy Advisors who gave their time generously throughout this project. They are:
• Geoffrey Blackwell, Chickasaw Nations Industries
• John Crigler, Garvey Shubert and Barer
• Sascha Meinrath, New America Foundation
• Carol Pierson, National Federation of Community Broadcasters
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Finally, this Paper is only the beginning of a wider discussion on spectrum issues in Indian
Country. The Paper’s proposals and ideas would benefit greatly from the comments and
feedback of Native Americans (ranging from those who have relatively good Internet access to
those who do not), Tribal governments seeking ways to deploy broadband on tribal lands so that
their members can benefit from the technology, and others who care about advancing
communications in Indian Country. More broadly, further analysis is needed concerning factors
that hinder spectrum-based broadband deployment and adoption in Indian Country, such as
funding, computer and Internet training, and access to computers. Accordingly, we encourage
readers to engage us with comments and suggestions.
Loris Ann Taylor Brad [email protected] [email protected] Executive Director Associate Clinical Professor Native Public Media Colorado Law School
Samuelson-GlushkoTechnology Law & Policy Clinic
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EXECUTIVE SUMMARY
Indian Country is being left behind in the transformation to a digitally accessible society.
This Paper focuses upon spectrum policy issues as part of a larger discussion concerning how
tribal communities can get improved broadband connectivity. To be sure, rural tribal areas
would benefit tremendously from access to distance learning, tele-health, and tele-commuting
opportunities as well as tools for culture and language preservation. High-speed access is also
increasingly crucial for tribes in order to apply for federal funding to facilitate basic services. A
central question for policy-makers, however, is how to achieve and promote broadband access
and penetration for Native Americans.
As the FCC has explained in its Statement of Policy on Establishing a Government-to-
Government Relationship with Indian Tribes (excerpted directly below this Executive
Summary), the United States’ trust relationship with Tribes creates a special fiduciary obligation
to support and assist Tribal economic development and self-sufficiency. Thoughtful
communications policy from the Federal Communications Commission is an important aspect of
discharging this obligation. As the FCC focuses on how to promote broadband in Indian
Country, this Paper proceeds in three parts with a focus on spectrum issues.
First , communities in Indian Country have a unique opportunity to utilize wireless
transmission as a means to provide robust broadband services to their vastly underserved tribal
lands. Tribally owned and operated service providers like the Navajo’s Internet of the Hogan
and the Tribal Digital Village offer important lessons for other tribal communities interested in
proving broadband services to their communities.
Second, until the wireless industry develops unrestricted contention-based protocols for Wi-
Max, the FCC should allow case-by-case exemptions for use of the entire 50 MHz in the 3650-
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3700 band with restricted protocol devices in rural areas like tribal lands where the additional
spectrum would have high value.
And third , increasing power limits in unlicensed bands can increase the range of wireless
access thereby decreasing the cost of providing Internet services to tribal communities. The FCC
should extend power limits for increased transmitter power for devices operating in already
existing unlicensed bands like 900 MHz, 2.4 GHz, and 5 GHz band in rural tribal communities.
Higher power limits should 1) require registration to a public database, 2) require the higher
power limit user to resolve interference with lower power limit users, and 3) employ some type
of contention based protocol to minimize interference.
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6. Seek to identify and establish procedures and mechanisms to educate Commission staff aboutTribal governments and Tribal cultures, sovereignty rights, Indian law, and Tribalcommunications needs.
7. Work cooperatively with other Federal departments and agencies, Tribal, state and localgovernments to further the goals of this policy and to address communications problems,
such as low penetration rates and poor quality services on reservations, and other problems of mutual concern.8. Welcome submissions from Tribal governments and other concerned parties as to other
actions the Commission might take to further the goals and principles presented herein.9. Incorporate these Indian policy goals into its ongoing and long-term planning and
management activities, including its policy proposals, management accountability systemand ongoing policy development processes.
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TABLE OF CONTENTS
I. OVERVIEW……………………………………………………………………….....................3II. SPECTRUM NEEDS IN INDIAN COUNTRY………………………………………………...5
A. Tribal Communities Have Unique Needs for Broadband Access………………........5
B. Prioritizing Spectrum Access for Tribes……………………………………....……..6C. Wireless Best Practices in Tribal Communities……………………………....……...71. Willingness to Innovate…………………………………………………………...82. Benefits of Tribal Ownership………………………………………………..........9
III. PROPOSED RESTRICTED DEVICE EXEMPTIONS IN THE 3650-3700 MHZ BAND…..11A. The Non-Exclusive License and the 3650-3700 MHz Band……………………......11B. History of the 3650 Band…………………………………………………………...12
1. Figure 1. Map of Protection Zones for FSS Services…………………………...142. Figure 2. Map of Indian Reservations in the Continental US…………………..15
C. Current Rules for Operation in the 3650 MHz Band……………………………….181. Figure 3. The 3650 MHz Band at a Glance…………………………...………....18
D. Economic and Efficiency Considerations…………………………………………..19E. Proposed Changes to the 3650 Band Order…………………………………………21F. Potential for Delayed Development of Unrestricted Contention-Based Protocol…..21
IV. PROPOSED CHANGES TO WIRELESS POWER LIMITS IN UNLICENSEDSPECTRUM……………………………………………………………………………...……22A. History of Power Regulations in Unlicensed Spectrum………………………...…..22B. Why Unlicensed Spectrum Use Makes Sense in Indian Country………………......24
1. Figure 4. Performance Metrics for Selected Wireless Networking Standards......25C. Proposed Changes to Part 15 Rules for Unlicensed Spectrum Use………………...26D. Consideration for Other Licensed and Unlicensed Users………………………......29
V. FURTHER RESEARCH………………………………………………………………...……30A. Connecting Tribal Communities to Fiber Backhaul…………………………..........30B. Spectrum Inventory for Possible Future Development…………………………......31C. Licensed Spectrum Access through Secondary Markets…………………………...32
VI. CONCLUSION………………………………………………………………………..............33VII. APPENDIX…………………………………………...…………………………………....….35
A. Tribal Digital Village Overview………………………………………………....…35B. Tribal Digital Village Cluster Topology……………………………………………35C. Tribal Digital Village Success………………………………………………….......36D. Representation of the 3650 Band…………………………………………………...37E. Amount of Available Unlicensed and Licensed Spectrum under 3GHz……….......37
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I. OVERVIEW
This paper explores the spectrum policies and technologies that could be used to create
greater broadband connectivity for tribal communities. In particular, rural tribal communities
face additional challenges in connecting to the Internet. Ultimately, the paper seeks to suggest
worthy and attainable policy reforms that will help more tribal communities cross the digital
divide.
This paper is limited in scope to wireless issues related to Indian Country. Tribal
communities are exceedingly different. The FCC stated in its docket on extending wireless
services to tribal lands, “[T]ribal lands may vary significantly with regard to population density,
terrain, and other such buildout factors which can affect the feasibility of building out facilities
on tribal lands and account for the lack of service.” 1 No one solution will meet the needs for all.
Some communities are fortunate to already have broadband access by virtue of location,
population, resources, or some other factor, but many communities are still exceedingly
underserved if served at all. Rural tribal communities are especially challenged to get access to
the Internet, and while this paper is intended to address tribal communities generally, portions
will address rural tribal communities specifically.
Communications policy in Indian Country is a challenge that implicates a diverse array of
business, cultural, economic, and regulatory issues. Against this backdrop, this paper focuses on
spectrum policy. While the capacity of wireless broadband is more limited than that of many
wireline alternatives, notably fiber, it has the potential to reach many users at a much lower cost.
Additionally, wireless technology is still evolving. The wireless technologies of tomorrow could
1 Extending Wireless Telecommunications Services to Tribal Lands, WTDocket No. 99-266, Third Report and Order, 19 FCC Rcd. 17652 (2004)(hereafter “TLBC Report & Order ”) at ¶ 8.
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provide significantly more capacity. However, wireline, satellite and other broadband
technologies are a critical part of the consideration of how to provide broadband to tribal
communities. In particular, the design of any broadband network should consider the lowest-
cost solution in each unique circumstance because the trade-offs between cost, feasibility, and
bandwidth will vary greatly between communities and even between individuals within
communities.
Broadband is a hot topic amongst regulators and consumers across the country. While urban
areas are by and large saturated with broadband access, rural communities are lagging behind.
The federal government is increasingly proactive in taking steps to help rural communities close
the gap.2 The passage of the American Recovery and Reinvestment Act of 2009 devotes $7.2
billion dollars for broadband projects and programs. The broadband stimulus package will be
administered by the Rural Utility Service (RUS) and the National Telecommunication and
Information Administration (NTIA).3 More than half of the funds, $4.7 billion will be used to
establish the Broadband Technology Opportunities Program (BTOP) to be awarded to broadband
projects in unserved and underserved areas.4 The RUS has an additional $2.5 billion dollars to
distribute as grants, loans, and loan guarantees on projects focused on serving rural areas.5
This paper proceeds in three parts. The first part outlines the unique need for spectrum in
Indian Country and details some best practices for spectrum use. The second part outlines a
policy change in the 3650-3700 MHz band to increase access to spectrum for tribal communities
2 This paper does not seek to answer the question of how broadband infrastructure projectscan or should be funded. The variety of programs, grants, and loans available are numerous andevolving and outside of the scope of this paper.3 Stephanie Cordon, CNET NEWS, Stimulus Bill Includes $7.2 Billion for Broadband , Feb. 19,2009, available at : http://news.cnet.com/8301-13578_3-10165726-38.html.4 Broadband Technology Opportunities Program Website, available at:http://www.ntia.doc.gov/broadbandgrants/.5 Stephanie Cordon, supra note 3.
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in rural areas. The third part discusses proposed increases to power limits in unlicensed
spectrum. The paper concludes with a discussion of the further research needed on spectrum in
Indian Country.
II. SPECTRUM NEEDS IN INDIAN COUNTRY
A. Tribal Communities Have Unique Needs for Broadband Access
Tribal communities, especially those in rural areas, have critical needs for access to
broadband. Tele-commuting, tele-health, and distance learning are all evolving to meet the
needs of rural communities. Rural communities in Indian Country are no exception. The Navajo
Nation is one example of how broadband connectivity can be used by rural tribal communities.
Navajo President Joe Shirley, Jr. said in 2006, ““Everywhere across our lands people are using
this technology to take distance education classes, e-commerce, communicate with family and
friends….Many of my people are getting bachelor degrees, even masters degrees, at home.”6
Beyond their typically rural nature, tribal communities have unique connectivity needs. For
example, tribal communities can benefit from cultural preservation tools Internet access holds.
One tribal-owned ISP in Southern California called Tribal Digital Village states that a goal of the
project is “the preservation of the tribal community and culture, particularly native languages
utilizing technology.”7 The President of the Navajo Nation also found Internet services an
essential tool for cultural preservation, “The Navajo Nation has demonstrated to the world that a
people who value culture, language, and tradition can use satellite and wireless technology to
6 Press Release, The Navajo Nation, Navajo President Joe Shirley, Jr., receives tribal leadershiptechnology award at 20th RES 2006 (Feb. 12, 2006) available athttp://www.navajo.org/images/pdf%20releases/George%20Hardeen/feb06/Navajo%20President%20receives%20ICT%20award%20at%20RES%202006%20%20for%20Feb%2013.pdf.(hereafter “Shirley Press Release”)7 FCC Website, Rural WISP Showcase, http://www.fcc.gov/osp/rural-wisp/rural-wisp-orgs.html(last visited May 5, 2009).
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help maintain their way of life.”8 Additionally, the authors of a Benton study in 1999
commented, “Community and cultural development is perhaps the development
area most commonly considered for tribal communications….Noncommercial
radio and television stations have been part of the tribal landscape for years,
and have as their main purpose the provision of culturally appropriate
services to Indian communities.”9
In addition to cultural preservation, communications within tribal governments and with the
federal government are critical. The Navajo tribe, for example, uses internet connectivity to
communicate between its 110 chapters.10
With regard to communications with the federal
government, a large percentage of tribes apply for and rely on federal grants to fund various
social services within their communities. These grants are often critical to the operations of
basic programs. The federal government’s shift to electronic filing leaves tribal communities
without access to broadband at a disadvantage to apply for critical funding.
B. Prioritizing Spectrum Access for Tribes
In its investigation of extending wireless services to tribal lands, the FCC stated that,
“[T]here is a substantial need for specific incentives targeted to the deployment of services on
tribal lands. By virtually any measure, communities on tribal lands have historically had less
access to telecommunications services than any other segment of the population.”11 Past
attempts to increase broadband access, including the use of tribal lands bidding credits, failed to
8 Shirley Press Release, supra note 6.9 James Casey et al., BENTON FOUNDATION, Native Networking: Telecommunications and Information Technology in Indian Country, 1999, at 15, available at http://www.benton.org/publibrary/native/bentonne.pdf.10 See Kathy Helms, Navajo president attends World Summit in Africa,GALLUPINDEPENDENT.COM, Nov. 16, 2005,http://www.gallupindependent.com/2005/nov/111605wsmt.html (last visitedMay. 5, 2009).11 TLBC Report & Order, supra note 1 at Appendix C part A.
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bring meaningful connectivity mostly due to the high cost of build-outs to rural communities. At
the recent Department of Commerce meetings held to discuss the implementation of the
broadband stimulus package, Diana Bob, staff attorney for the National Congress of American
Indians said, “[T]ribal lands have historically been left out of critical infrastructure build-outs….
[Broadband] is a great thing for most of the country but for Indian Country there is a major lack
of analog access as well.”12 Programs designed to encourage providers to reach tribal
communities are limited by the reality that service providers have economic incentives to
provide the least costly service, often synonymous with the lowest quality service, to meet the
requirements of the incentive program. Serving the sparsely populated and remote regions of
many tribal communities will never be attractive business opportunities for private providers.13
The situation is significantly different for those tribes located near urban areas or that are more
densely populated, or both.
While the FCC tried to advance services offered in Indian Country through the Tribal Lands
Bidding Credit (TLBC) program, the results have been disappointing. Despite the bidding credit,
few tribes bid. In a 2004 Report and Order, the FCC found that, “[T]he record, though limited,
suggests that underutilization of the tribal lands bidding credit program stems from technical
obstacles, economic factors, difficulties obtaining certifications, and other problems, rather than
from overly-restrictive buildout requirements.”14 In some instances, providers did only what was
12 United States Department of Commerce BTOP Public Meeting Transcripts, Session 2, March23, 2009, available at http://www.ntia.doc.gov/broadbandgrants/meetings.html.13 See Federal Communications Commission, Telephone Subscribership onAmerican Indian Reservations and Off-Reservation Trust Lands (May 5,2003), available at http://www.fcc.gov/Bureaus/Common_Carrier/Reports/FCC-State_Link/IAD/subsai03.pdf (hereafter “Telephone Subscribership on Reservations Study”). See also TLBC Report & Order supra note 1 at ¶ 16. “[W]ell over half of tribes continue to have penetration rates below our national average [for telecommunications services].”14 TLBC Report & Order , supra note 1 at ¶ 8.
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necessary to satisfy the bidding credit requirement. Regardless of the effectiveness of this
singular incentive program, service providers will continue to be constrained by the market
reality that investments in rural areas have longer payback periods and lower rates of return.
C. Wireless Best Practices in Tribal Communities
As daunting as the challenges to providing broadband access in rural tribal communities may
seem, there are examples of success.15 One such project is Tribal Digital Village16 (TDV), a
tribal-owned cooperative in Southern California providing Internet services via a wireless
Internet backbone to eighteen tribes in the area.17 TDV serves more than 7,600 Native
Americans living in isolated areas and scattered rural communities.
18
The area served by TDV
spans 150 miles and stretches from Riverside County to the California-Mexico border.19 The
project is funded by private companies like Hewlett-Packard as well as federal grants.20
Willingness to Innovate
One unique aspect of the Tribal Digital Village that played a role in its success is the
organization’s ability and willingness to innovate. According to Matt Rantanen, TDV uses field
tests to maximize the transmission distances for the equipment it buys. While manufacturers use
laboratory testing to determine how far wireless signals will reach, TDV sometimes finds
equipment is capable of sending and receiving transmissions over distances greater than what the
manufacturer’s stated capacity. On the other hand, TDV also sometimes finds that equipment
has less capacity than the manufacturer’s stated specifications. TDV’s willingness to optimize
15 See Appendices A & C.16 See Tribal Digital Village Website, available at http://www.sctdv.net, (last visited May 06,2009).17 See Appendix A.18 FCC Website, Rural WISP Showcase, supra note 7.19 Id .20 Hewlett-Packard Development Company Press Release, SDTDV Accomplishments, Oct.2003, available at http://www.hp.com/e-inclusion/en/project/sdtdv_accomplishments.pdf. (lastvisited May 6, 2009).
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the reach of the network with available equipment is an interesting field test for the device
manufacturers. Sharing information about devices in the field is to some extent the foundation of
a relationship between TDV and the companies that create the equipment TDV needs, creating
opportunities to maximize mutual benefits. External relationships in general have been very
beneficial to the TDV project. The project involves collaboration with Hewlett-Packard as well
as local university experts who helped design the network and provide occasional technical
expertise.
The need to work well with all eighteen tribes involved in TDV was another key to success.
Before the project began, each tribe signed a letter of understanding regarding tower location.
When TDV needs to place a tower, it suggests three possible locations and works with the tribe
to come up with the best mutually beneficial solution.
Benefits of Tribal Ownership
Unaffiliated service providers have a poor track record of providing telecommunications
services in remote areas where market incentives are minimal and costs are high.21 Providers
were slow to bring telephone service to rural tribal communities,22 a reality that lead to the
creation of the Universal Service Fund to help subsidize telephone service to rural areas .23 The
21 Therese Bissell, U. ILL. J.L., TECH. & POL’Y, The Digital Divide Dilemma: Preserving Native American Culture While Increasing Access to Information Technology on Reservations, 2004 at129. “Native Americans living on reservations disproportionately lack access to both basic andadvanced technologies because poor infrastructure makes the cost of obtaining fundamentaltelephone, cable, and computer service very high.” See also, FCC, Statement of Policy onEstablishing a Government-to-Government Relationship with Indian Tribes,(June 23, 2000), available at http://www.fcc.gov/Bureaus/OGC/Orders/2000/fcc00207.doc. “[T]he
Commission has recognized that certain communities, particularly Indian reservations and Triballands, remain underserved, with some areas having no service at all.”22 Supra note 13, Telephone Subscribership on Reservations Study at 3. “Statistics from the 2000Decennial Census estimated that 67.9% of all American Indian households living on AmericanIndian Reservations and Off-Reservation Trust Lands: Federal had telephone service.”23 See David Wilson, Weaving the Navajo.Net: Advanced Telecommunications Services, Cultural Adaptation, and the Navajo Nation’s “Internet to the Hogan” Technology Plan, J. ON TELECOMM.
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same will be true for providing broadband services to rural areas. One way to confront the
tendency for service providers to under-serve rural communities is to encourage tribal service
providers like the Tribal Digital Village. There are a lot of reasons, many of them outlined
above, why the TDV project works, and one of them is tribal ownership.24 Tribal Digital Village
has social incentives to serve its own communities in contrast to other service providers
incentives to provide high quality service that are limited to regulatory and economic
considerations. Another example of tribal-owned and operated telecommunications services is
the Navajo Nation’s Technology Plan.25 The Navajo Nation is providing its own
telecommunications service in contrast to previous service provided by OnSat, which did not
meet the service needs of the Navajo communities.26
Finally, Internet service providers owned or operated by a tribe or by a member of a tribe
have the opportunity to hire and train additional members of the tribal community to work in IT
and communications services. For example, many of the individuals working with Tribal Digital
Village have benefited from the hands-on training necessary to operate their network, and DTV
has built an expertise internally to serve its own communities. That kind of employment and job
training opportunity is particularly notable in an area where nearly 30 percent of the tribal
& HIGH TECH., (forthcoming 2009) at Part V(A)(ii).24 Opponents could argue that it doesn’t make sense for inexperienced entities to be in the
business of providing broadband services. Established service providers have specializedknowledge and economies of scale. However, if the only services available are inadequate, itmakes more sense for communities to build their own services to meet their unique needs.25 See Navajo Nation Department of Information Technology Website, Strategic InformationTechnology Plan Version 5.0, available at http://www.dit.navajo.org/#.26 David Wilson, supra note 23 at note 41 “OnSat Network Communications has been providedsatellite internet to the Navajo chapter houses. See Gordon et al., supra note 19, at 431. A recentaudit, however, suggests that OnSat has inappropriately billed the Navajos over 650 thousanddollars. See John Christian Hopkins, Bates: ‘Gross negligence’ in OnSat dealings,GALLUPINDEPENDENT.COM, June 21, 2007,http://www.gallupindependent.com/2007/june/062107jch_onsatdealings.html (last visited Nov.22, 2008).”
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community's population lives below the poverty line, and 50 percent are unemployed. 27
Given the general need for additional spectrum access in Indian Country, the following two
sections discuss specific spectrum policy changes that could help meet the Internet access needs
of tribal communities.
III. PROPOSED RESTRICTED DEVICE EXCEPTIONS IN THE 3650-3700 MHZ BAND
This section of the paper seeks to examine in depth a specific band of spectrum, the 3650MHz
band, and how it might be used by tribal communities. Spectrum at 3650MHz is purposed for
rural use, and is attractive because devices have already been developed to operate in the band.
However, current FCC rules only allow readily available devices for half of the 50 MHz between
3650 and 3700 MHz. An exception for rural communities to use lower cost devices for the entire
50MHz is a way to provide additional spectrum to tribes with spectrum access needs.
A. The Non-Exclusive License and the 3650-3700 MHz Band
The 3650MHz band is attractive spectrum for tribal communities to use. The FCC intends
that spectrum at 3650 will be used especially in rural areas due to its unique history of incumbent
users. Notably, the 3650 MHz band has a rather unusual licensing structure. As opposed to a
pure licensed or unlicensed regime, the 3650 band operates under a non-exclusive licensing
structure, a hybrid of licensed and unlicensed operations. Like users of unlicensed spectrum,
users of the 3650 band may not exclude other broadcasters in the band. However, to use the
spectrum, users must register their spectrum use and seek to coordinate with other users to
minimize harmful interference. The non-exclusive license is analogous to the party lines once
used to collectively serve a number of users on a single telephone line. Each user is aware of the
other users on the line, and seeks to avoid causing the others interference by first picking up the
telephone and listening for other users before placing a call. The rules of the 3650 MHz band
27 FCC Website, Rural WISP Showcase, supra note 7.
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operate similarly by requiring that devices sense or listen for other spectrum users before they
broadcast or talk. This listen-before-talk, or listen-before-transmit or simply “LBT” protocol28 is
also referred to as a “contention-based protocol.”
Under the FCC's service rules for the non-exclusive licenses, operators are allowed to use the
band with higher power limits (up to 24 Watts EIRP), but all equipment operating in the band
must incorporate a “contention-based protocol” to ensure that 3650 MHz licensees cooperate and
“make every effort” to avoid harmful interference.29 Lastly, because the 3650 band is technically
licensed spectrum, there is some indication that a license could be used as collateral for a loan to
build out communications services. This development may prove highly relevant to tribal
communities seeking funding for broadband projects, although the number of data points on the
efficacy of this financing strategy is minimal at best.
B. History of the 3650 Band
Initially, the 3650 MHz band was allocated exclusively for federal government radiolocation
services use, but in 1984, the FCC changed its rules to allow the 3600-3700 MHz band to be
used for non-government satellite services on a secondary basis.30 The FCC limited the non-
28 Jerry Brito defines LBT etiquette as a rule “ programmed into a transmitting device, which
would require it to listen in on a frequency before it transmits and then transmit only if it foundthat it would not cause interference to other devices.” The Spectrum Commons in Theory and Practice, STAN. TECH. L. R EV. at 9 (2007).29 Wireless Operations in the 3650-3700 MHz Band, ET Docket No. 04-151, Report & Order, 20FCC Rcd 6502 (2005) (hereafter “3650 MHz Order ”) at § 90.1319 Policies governing the use of the 3650-3700 MHz band part (c). “All applicants and licensees shall cooperate in the selectionand use of frequencies in the 3650-3700 MHz band in order to minimize the potential for interference and make the most effective use of the authorized facilities. A database identifyingthe locations of registered stations will be available at <http://wireless.fcc.gov/uls>. Licenseesshould examine this database before seeking station authorization, and make every effort toensure that their fixed and base stations operate at a location, and with technical parameters, thatwill minimize the potential to cause and receive interference. Licensees of stations suffering or causing harmful interference are expected to cooperate and resolve this problem by mutuallysatisfactory arrangements.”30 Unlicensed Operation in the 3650-3700 MHz Band, ET Docket No. 04-151,Notice of Proposed Rule Making, 19 FCC Rcd 7545 (2004) (hereafter “2004
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governmental use to “international inter-continental [space-to-Earth] systems” effectively
restricting the satellite receiving stations to locations along the coast.31 In 1995, pursuant to a
1993 directive by Congress to identify 200 MHz of government spectrum to be transferred to
public use, the National Telecommunications and Information Agency slated the 3650-3700
MHz band for a change of status to a “mixed-use” band.32 This change gave the FCC the
authority to allocate this band for private users. In 1998, the FCC issued a Notice of Proposed
Rule-Making and Order allocating the band for non-government fixed service on a primary
basis.33 The FCC issued a second NPRM in 2000 specifying rules for fixed and mobile wireless
in this band and also declared that it would “grandfather” three existing government
radiolocation sites.34 The protection zones for grandfathered FSS services in these frequencies
are 1) 150km radius around FSS stations, 2) 80km radius around Federal government
radiolocation, 3) 8km from the US border (facing opposite the border) and 4) 56km from US
borders (facing the border).35 The Figure 2 indicates the location of these protected zones.
Figure 1. Map of Protection Zones for FSS Services
NPRM”) at 7547 citing Table of Frequency Allocations, 47 C.F.R. § 2.106, footnote US110.31 Id. See also Jerry Brito supra note 28 citing Thomas Hazlett, Spectrum Tragedies, 22 YALE J.ON REG. 242 (2005) at note 120.32 2004 NPRM, supra note 30 at 7547-48 citing the Spectrum Reallocation Final
Report, Response to Title VI - Omnibus Budget Reconciliation Act of 1993, U.S. Department of Commerce, NTIA Special Publication 95-32 (Feb. 1995).33 2004 NPRM, supra note 30 at 7548-49 citing Amendment of the Commission's
Rules with Regard to the 3650-3700 MHz Government Transfer Band, ET Docket No. 98-237, Notice of Proposed Rule Making and Order, 14 FCC Rcd 1295 (1998).34 See Amendment of the Commission's Rules With Regard to the 3650-3700 MHz GovernmentTransfer Band; The 4.9 GHz Band Transferred from Federal Government Use, First Report andOrder (hereafter “3650 Allocation Order ”) and Second Notice of Proposed Rule Making, ETDocket No. 98-237, WT Docket No. 00-32, 15 FCC Rcd 20,488 (2000). 35 Id .
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In 2004, the FCC started reconsidering its spectrum allocation methods and concluded that
more spectrum needed to be allocated to the shared use or “commons” model.37 The
Commission released the Unlicensed 3650 MHz Notice and proposed to allow the operation of
unlicensed devices in the 3650 MHz band.
38
The commission's aim was to ensure that service
rules for this band fostered the introduction of affordable broadband service across America,
especially in rural areas that did not have access to a broadband service.39 To this end, in its final
order in 2005, the FCC proposed far higher power limits in this band than allowed for part 15
devices.40 The FCC also required the use of “contention based protocols” to ensure interference
between devices was minimized,41 and required all services operating in this band needed to be
registered with the FCC and all service providers were required to “make every effort” not to
37 See generally 2004 NPRM, supra note 30.38 Id.39 Id . at 7546.40 3650 MHz Order , supra note 29 at ¶ 50.41 Id. at ¶ 56-58.
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interfere with each other .42
The FCC's decision to open up the spectrum for non-exclusive use and other aspects of the
service rules included in the order received opposition from several parties. Eight parties
including the WiMAX Forum, the Wireless Communications Association, the Satellite Industry
Association, Motorola, and others asked the FCC to reconsider its decision to adopt a non-
exclusive” licensing scheme for the 3650 band of spectrum.43 Petitions were filed seeking
reconsideration of various aspects of the 3650 MHz Order and about 160 comments were made
by petitioners.44 Petitioners raised concern including the unclear definition of a “contention-
based protocol”, out-of-band interference due to higher power limitations, and insufficient
interference protection due to the non-exclusive licensing. Several suggestions were made by the
petitioners to address these concerns including protections against interference from later
entrants for licensees who have already built facilities, application deadlines to ensure build-out,
time-division access to the spectrum between different service providers, geographic or
frequency based division of spectrum into licensed and unlicensed parts, and others.
In 2007, the FCC issued a Memorandum Opinion & Order to address petitions for
reconsideration filed in response to its Report and Order on wireless operations in 3650-3700
MHz band.45 The FCC was not persuaded by suggestions that exclusive licensing would enable
42 3650 MHz Order , supra note 29.43 See Wireless Operations in the 3650-3700 MHz Band, ET Docket No. 04-151,Memorandum Opinion & Order, 20 FCC Rcd 10421 (2007) at footnote 1 (hereafter
“2007 Opinion and Order ”) citing the 3650 MHz Order . “ The parties petitioning forreconsideration were: BRN Phoenix; the Enterprise Wireless Alliance (EWA);Intel Corporation, Redline Communications and Alvarion (jointly); Motorola;Redline Communications; the Satellite Industry Association (SIA); theWireless Communications Association (WCA); and the Wi-Max Forum.”44 2007 Opinion and Order, supra note 43 at Appendix B, Timely Filed Oppositions, Commentsand Replies.45 See 2007 Opinion and Order, supra note 43.
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the most efficient use of the spectrum.46 It also rejected proposals to alter power limits or out-of-
band emissions limits.47 The FCC denied requests to reconsider the non-exclusive license
regime, and a number of other proposed changes stating that its proposed scheme “struck an
appropriate balance, providing a regime with low entry costs and minimum regulatory delay,
while still ensuring orderly operation48...” and thus “would encourage rapid deployment of
broadband technologies and advance the goal of bringing broadband services to all Americans,
including consumers living in less densely populated rural and suburban areas”.49
The FCC believed contention-based protocol provisions would be enough to avoid co-
frequency interference within the band. However, several petitioners noted the lack of existing
devices incorporating contention-based protocols. Some parties found that FCC's rules did not
clearly define “contention based protocols”. There were concerns that devices and services
based on existing wireless protocols such as Wi-fi and Wi-Max would be disqualified from use
in this band if the “contention based protocol” requirement extended to detection and protection
of interference from other, dissimilar contention technologies. In considering these concerns, the
FCC introduced definitions for what it termed restricted and unrestricted contention based
protocol devices. The order categorized devices operating in the band as restricted or
unrestricted protocol devices based on their ability to prevent interference.50 While the FCC
preferred operations based on unrestricted protocols in the band since this would mean better
protection against interference, the lack of existing technology prompted the agency to allow
restricted protocols on a limited basis. The FCC tried to balance the two concerns by allowing
46 See Id. at ¶ 14-15.47 See Id. at ¶ 57 & 54.48 See Id. at ¶ 6.49 See Id. at ¶13.50 See 47 CFR section 90.7, Definitions, or the 2007 Opinion and Order, supra note 43 atAppendix A.
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unrestricted protocol device to operate over the entire 50 MHz while restricted protocol devices
were limited to the lower 25 MHz of the band.51
C. Current Rules for Operation in the 3650 MHz Band
The rules governing operation in the 3650 MHz band can be found at 47 CFR Part 90. The
most recent opinion and order highlights the definition of unrestricted and restricted contention-
based protocols52 and the non-exclusive nature of the band,53 but the power limits and the
required registration are also significant components of the band.54 Spectrum users operating in
the 3650 MHz band have a non-exclusive license to operate approved devices, and must be
registered with the FCC.
55
Power limits are segmented at 25W and 1W for fixed and mobile use
respectively, and devices must use either a restricted or an unrestricted contention-based
protocol.56 The current rules for operations in the 3650 are summarized in Figure 1 below.
Figure 3. The 3650 MHz Band at a Glance
• Spectrum Between 3650-3700 MHz
• Non-Exclusive Hybrid License
• Requires Registration and Filing Fee
• Product Certification Required• Technology Agnostic
• Requires Contention-Based Protocols (Restricted and Unrestricted)
• 25W (44dBm) power limit for fixed operations
• 1W (30dBm) power limit for mobile operations
A further discussion of restricted versus unrestricted contention-based protocol will hopefully
add some clarity. The FCC defines a contention-based protocol as “A protocol that allows
51 See 2007 Opinion and Order, supra note 43 at ¶ 1.52 See 47 CFR section 90.7, Definitions, or the 2007 Opinion and Order, supra note 43 atAppendix A.53 See 47 CFR section 90.1319, Policies governing the use of the 3650-3700 MHz band, or the2007 Opinion and Order, supra note 43 at Appendix A.54 See 2007 Opinion and Order, supra note 43.55 Id.56 Id.
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multiple users to share the same spectrum by defining the events that must occur when two or
more transmitters attempt to simultaneously access the same channel and establishing rules by
which a transmitter provides reasonable opportunities for other transmitters to operate.”57 The
FCC defines contention-based protocols as either unrestricted in which case the protocol “can
avoid co-frequency interference with devices using all other types of contention-based
protocols”58 or the protocol defaults to a restricted classification if it fails that definition as an
unrestricted contention-based protocol.59 Basically, the distinction is based on whether device
protocols can prevent interference only with other devices incorporating the same protocol
(restricted) or have the capability to hear a competing signal and avoid interference, regardless of
the format of interference technology associated with the other signals (unrestricted). For
example, Wi-Max is a restricted protocol because while it has the capability to co-ordinate
operations with other Wi-Max systems and avoid interference with them, it does not have the
ability to coordinate and avoid causing interference with other technologies such as Wi-fi. The
current operating rules in the 3650 band require that devices operating in the 25 MHz between
3650-3675 must have a restricted contention-based protocol while devices with unrestricted
contention based protocols can operate throughout the 3650-3700 MHz band.60
D. Economic and Efficiency Considerations
While the FCC’s allowance for multiple contention-based protocols is worthwhile in terms of
maximizing innovation, the hard reality is that one device meets the standard for devices using
an unrestricted contention-based protocol while restricted protocol devices that could be used
throughout the 3650 band are readily available. Today there are several manufacturers like
57 47 CFR section 90.7, Definitions, or the 2007 Opinion and Order, supra note 43 at AppendixA.58 Id.59 See Id.60 See 2007 Opinion and Order, supra note 43 at ¶ 1.
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Alvarion, Airspan, and Redmax that have a complete range of Wi-Max products for 3650Mhz
spectrum.61 However, very few of the Wi-Max devices are currently available equipped with
restricted contention based protocols. For example, Alvarion's BreezeMAX products operate
only between 3650-3675MHz, the upper half of the 50MHz spectrum, even though the devices
are hardware-ready to operate in the entire 3650-3700MH range62. One manufacturer does
provide Wi-Max devices certified by FCC for operation over the entire 50 MHz using a non-
standard proprietary interference detection mechanism certified by the FCC,63 but the IEEE
802.16 standards working body is yet to decide on a common standard for an appropriate
unrestricted contention-based protocol.
64
A common protocol standard would make these
devices more widely available and cheaper. The standard that Alvarion developed is unlikely to
be adopted by other device manufacturers if that technology is expensive or difficult to license
into their products. It’s more likely that device manufacturers will wait for a standard to be
developed.
E. Proposed Changes to the 3650 MHz Band Order
61 See Alvarion Website, BreezeMax 3650,http://www.alvarion.com/products/breezemax/components/breezemax_3650/, (last visited May6, 2009). See also, Redline Communications Website, 3.65GHz RedMAX WiMAX Solutions,http://www.redlinecommunications.com/products/RedMAX3.65GHz.html, (last visited May 6,2009).62 Airspan Website, Airspan Obtains FCC Certification for Products in 3650 MHz Band,http://www.airspan.com/products_wimax_us3650.aspx, (last visited May 6, 2009).63 Airspan's 3.65GHz U.S. WiMax products also include a “Detect and Protect” contention protocol designed to operate in accordance with the FCC ruling enable the use of both therestricted and unrestricted spectrum blocks as an unrestricted contention based protocol. It isunclear from the literature of other device manufacturers whether not they are approved tooperate as unrestricted protocol devices.64 See Paul Piggin, WiMAX/Wi-Fi Coexistence in the 3.65GHz Band - Standardization and Simulation, Next Wave Wireless, available at http://ursi-france.institut-telecom.fr/pages/pages_ursi/URSIGA08/papers/C01p1.pdf, The IEEE is working towards astandardized Unrestricted contention based protocol for 802.16. The License-Exempt Task Group LETG is developing the amendment P802.16h to include a standardized contention based protocol within 802.16 protocol standards such that it complies with FCC's Unrestricted CBPstandards.
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Until the wireless industry develops an unrestricted contention-based protocol, the FCC
should consider exemptions to allow use of the entire 50 MHz in the 3650-3700 band with
restricted protocol devices. Exemptions could be applied for on a case-by-case basis to be used
especially in circumstances such as rural tribal communities where the additional spectrum
would have high value. The exemption would be least suitable in high population density areas
where market incentives should operate more strongly to create unrestricted protocol devices.
The FCC is likely to be concerned about reliance on the use of restricted protocol devices. A
possible mitigation for this concern might be to include language in the exemption that
essentially terminates the exemption when unrestricted contention-based protocols are
standardized and devices are widely available. Because the exemption would sunset after a
period of years, the FCC could effectively cap the use of restricted devices in the upper 25 MHz
of the 3650 band at a time when unrestricted protocol devices have sufficiently developed. This
proposal strikes a balance between maximizing spectrum, particularly in rural areas where the
band was specifically intended for use, and keeping costs low while still offering incentives for
wireless devices to build unrestricted protocol devices and preserving the flexibility and
innovation incentives the FCC designed. Lastly, more work is needed to identify precise
changes in language to the rules in Part 90. In particular, defining at what point unrestricted
contention-based protocol devices become “widely available” could be difficult to define.
F. Potential for Delayed Development of Unrestricted Contention-Based Protocol
Another concern likely to be raised by the FCC is that allowing exemptions from unrestricted
protocols will delay the development of the new sensing technologies the FCC would like to see
develop. Whether or not granting limited exceptions for restricted devices will really change the
technological advancements of protocol-sensing technology is arguable. It seems highly unlikely
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that device manufacturers would have incentives to develop new technology solely to serve
sparsely populated, rural communities, regardless of how much spectrum is available. Simply
put, rural communities are not attractive markets for device manufacturers, they are simply too
small. The economically rational way to allow exemptions under limited circumstances while
still offering incentives to device manufacturers is simply to restrict exemptions to small markets
in rural areas where market incentives are likely to be inconsequential.
IV. PROPOSED CHANGES TO WIRELESS POWER LIMITS IN UNLICENSED
SPECTRUM
This section suggests policy changes in unlicensed spectrum that could help increase
broadband access for tribal communities. Increasing power limits in unlicensed bands can
increase the range of wireless access thereby decreasing the cost of providing Internet services to
tribal communities. While spectrum operators in the same and neighboring bands might be
concerned about increasing power limits, risk of harmful interference can be mitigated through
registration, required interference resolution, and contention-based protocols.
A. History of Power Regulations in Unlicensed Spectrum
Since 1934, the FCC has regulated radio spectrum by granting individual operators exclusive
licenses to broadcast in an assigned frequency band, at a particular power level, at a specified
location.65 This exclusive license mechanism ensured minimal risk of harmful interference
between different services. The FCC also has a long history (first regulated in 1938) of
permitting unlicensed devices to be sold and operated under compliance with its part 15 rules.66
The part 15 rules set forth conditions to ensure that the emissions or field strength levels
65 Kenneth Carter, The Information Economy Project at George Mason University School of LawConference on the Genesis of Unlicensed Wireless Policy, Unlicensed to Kill: a Brief History of the FCC Part 15 Rules, April 4, 2008, at 3, available at :http://iep.gmu.edu/UnlicensedWireless.php.66 Id . at 3-4.
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specified service rules for that band. Again, the FCC service rules for these unlicensed
frequencies limit the maximum power and emissions to minimize interference between the users
of this spectrum. The FCC's intention is to ensure that unlicensed use does not end up being a
victim of its own success resulting in a “tragedy of the commons” whereby there are so many
users of the spectrum that the resulting interference makes the spectrum unusable. However, the
distance electromagnetic radiations travel has a direct correlation with the power radiated. Thus,
lower power limitations result in a highly restricted range for the transmissions on these
unlicensed bands.
B. Why Unlicensed Spectrum Use Makes Sense in Indian County
Spectrum in general is much less used in rural areas. For tribal communities in rural areas,
unlicensed spectrum can be particularly available. The advantage of using unlicensed spectrum
in rural communities is the combination of a small number of users (and therefore interference)
combined with a lower entry cost. The cost of licensing spectrum varies, but as it currently
stands, it is prohibitive to all but a few tribal communities. As an example, the Tribal Digital
Village started using unlicensed spectrum. The limitations it encountered were not caused by
congestion, but by network needs which were too great for the limited amount of unlicensed
spectrum available. Their own use was interfering with their network. The solution in the case
of TDV was to eventually get access to licensed spectrum in addition to unlicensed use. The fact
that TDV didn’t experience significant problems in gaining access to the unlicensed spectrum is
largely due to the isolated nature of the network. Other similarly situated tribes have the
potential to use unlicensed spectrum to provide wireless access in the same way with minimal
risk of harmful interference.
The table below shows a comparative analysis of the various technologies currently being
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employed in the unlicensed bands (2.4GHz and 5.8GHz). The ranges included are for indoor
spaces, but even the 802.11b standard with a 250 feet range in enclosed space is limited to 800-
1200 feet in open space. For outdoor spaces the range varies based on a multitude of factors
including data rate (bandwidth) desired, line of sight, obstructions, antenna type, antenna cable
length, and the receiving antenna. The range for outdoor spaces can be much farther and in the
most optimal scenario even extend up to 25 miles for some devices. 72 However, as the distance
from the base station increases the received power decreases substantially. Decreased power
means reduced data rate, as the maximum data rate for any particular technology is based on the
Carrier to Interference ratio (C/I) and decreased signal power at the receiver means lower C/I
ratio for constant interference. This severely limits deployment of these services in rural regions
because additional access points are needed to extend the range.
Figure 4. Performance Metrics for Selected Wireless Networking Standards
72 Cisco Systems Website, Cisco Aironet Wireless Bridges FAQ, last updated Jan. 21, 2008,available at :http://www.cisco.com/en/US/tech/tk722/tk809/technologies_q_and_a_item09186a008015502c.shtml#q15.
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C. Proposed Changes to the Part 15 Rules for Unlicensed Spectrum Use
The FCC has already suggested that changes to power limits could be effective for increasing
wireless services in tribal communities. In its 1999 NPRM on extending wireless services to
tribal lands, the FCC wrote that the rules in place were designed to promote efficient spectrum
usage and reduce harmful interference with other users.73 The notice also said: “Although these
restrictions are important, for the numerous tribal areas that are located in remote or sparsely
populated areas, increasing these limits may increase the viability of providing basic
telecommunications services to individuals on those lands by expanding the reach of existing
systems and by reducing the number of transmitting facilities required to provide service in a
certain area.”74 At the time, the FCC did not consider changes to unlicensed spectrum because it
was very limited. Since then, others have looked at increasing power limits in unlicensed
spectrum at 2.4GHz and 5GHz. In 2006, the UK Office of Communication or “Ofcom”,
produced a report on the very subject.75 The report found that, “The broad technical conclusions
from the research project, opinions from industry interviews and economic results from
modeling indicate potential benefits if: A power increase to 10 Watts at 2.4GHz and to between
four and 25 Watts at 5.xGHz is allowed.”76 The report also suggests a scheme to limit higher
power limits in the 2.4GHz and 5.xGHz bands under the following criteria:
• Registration at a publicly-accessible database of any devices operating at the higher
power limits to include details on location, power, and contact information, and,
•
Acceptance of responsibility for resolving any interference with lower power 73 Extending Wireless Telecommunications Services to Tribal Lands, Notice of Proposed RuleMaking, WT Docket No. 99-266, 14 FCC Rcd. 13679 (1999) at ¶ 17.74 Id. 75 Ofcom Office of Communications, Higher Power Limits for Licence Exempt DevicesUnderstanding the Scope for a Power Increase at 2.4 and 5 GHz, July 2006, (hereafter “OfcomReport”) available at http://www.ofcom.org.uk/consult/condocs/powerlimits/statement/.76 Id. at 2.
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devices.77
Amongst the advantages of such a regime, the report hypothesized a low probability that a user
would deploy equipment at a higher power limit in an area that would likely cause interference
given the responsibility for resolving interference issues.78 Finally, the report concluded that
"higher power at 2.4 GHz could improve their business case"79 for rural users finding that the
"number of subscribers increases with higher power, calculated consumer surplus also increases
with power."80
Back in the US, the FCC in its report on TV white spaces allowed for low power devices to
operate in the TV White Space bands.
81
These white space devices will have special sensing
capabilities and have the ability to change their transmission to communicate effectively with
other users by actively monitoring the transmissions in the band.82 The FCC is confident that
these capabilities will be enough to ensure a low risk of interference with other unlicensed
services and thus allowed unlicensed services within the TV white spaces band.83 Also in the
White Spaces Report, the FCC expressed the need for a separate notice of inquiry regarding the
suitability of higher powered unlicensed operation in the TV white spaces in rural areas.84
In another FCC docket on cognitive radios, the FCC examined the potential for the use of
sensing technologies in combination with higher power limits in rural areas. The FCC stated,
“In this Notice we proposed to allow unlicensed devices to employ cognitive radio technologies
77 Id. at 24-25.78 Id. at 25.79 Id. at 5.80 Id. at 19.81 See Unlicensed Operations in the TV Broadcast Bands, Second Report and Order andMemorandum Opinion and Order, ET Docket No. 04-186, 46 Communications Reg. (P&F) 940(2008) (hereafter “White Spaces Order ”).82 Id. at ¶ 1.83 Id. at ¶ 24-31.84 Id. at ¶ 106.
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to operate at higher power in rural and other areas with limited spectrum use. While we are not
adopting any changes to allow higher power operation by unlicensed devices in this Report and
Order, we continue to believe that cognitive radio technologies hold great promise to allow such
higher power operation without interference to other spectrum users.85
We submit that based on the White Spaces Order and the Cognitive Radio Order in
conjunction with the findings of the Ofcom Report, the FCC should extend power limits for
increased transmitter power for devices operating in already existing unlicensed bands like 900
MHz, 2.4 GHz, and 5 GHz band in rural tribal communities.86 Furthermore, higher power limits
such as the 10 Watts at 2.4GHz and between 4 and 25 Watts at 5.xGHz suggested by the Ofcom
Report should 1) require registration to a public database, 2) require the higher power limit user
to resolve interference with lower power limit users, and 3) employ some type of contention
based protocol in under to minimize interference. The FCC proceedings evidence that devices
with sensing capabilities are successfully able to avoid interference with other operations in the
bands in which they operate. Additionally, the highly remote location of many of the tribal
communities and the lack of other telecommunications infrastructure in the region means very
little risk of interference with other spectrum users. The additional power would help overcome
the severe range limitations of Wi-Fi and other devices operating in these spectrum bands.
Additional support for this policy change could also come from the FCC’s policy statement
on its relationship with tribes.87 The policy statement is supported by language in the
85 Facilitating Opportunities for Flexible, Efficient, and Reliable Spectrum Use EmployingCognitive Radio Technologies, Report and Order, ET Docket No. 03-108, 20 FCC Rcd. 5486(2005) at ¶ 22.86 More work is needed to identify precisely how the language in the Part 15 Rules should bechanged to effect this policy change.87 Statement of Policy on Establishing a Government-to-Government Relationship with IndianTribes, 16 FCC Rcd 4078 (2000). In particular, sections 7 and 8 of the policy statement are pertinent. “7. The Commission will work cooperatively with…. Tribal, state and localgovernments to further the goals of this policy and to address communications problems, such as
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Telecommunications Act of 1996 where Congress expressed that “consumers in all regions of
the Nation, including low-income consumers and those in rural, insular, and high cost areas,
should have access to telecommunications and information services....”88
D. Consideration for Other Licensed and Unlicensed Users
The threat to other licensed and unlicensed users is minimized with the use of contention-
based protocols. The FCC is betting heavily on the communication industry’s ability to develop
leading technologies to take full advantage of unlicensed spectrum, most notably the white
spaces, and licensed spectrum like 3650. To the extent the FCC can create additional incentives
for device manufacturers to develop new contention-based protocols by expanding the market for
such technologies, it should. Furthermore, raising power limits in effect increases the utility of
the otherwise finite resource that is spectrum. While contention-based technology development
will take time and be costly, it is arguably a reasonable means to facilitate greater spectrum use,
especially given the safeguards discussed and the high need in unserved and underserved areas.
V. FURTHER RESEARCH
While investigating the spectrum policy suggested already described, a number of other
equally important and potentially viable policy changes were uncovered. A through
investigation of the following issues is needed: 1) wireless backhaul or other means to connect
tribal communities to fiber backhaul, 2) a spectrum inventory including the potential for
repurposing spectrum on tribal lands and other spectrum licensing opportunities, and 3) use of
the secondary markets in and license disaggregation to provide additional spectrum license
opportunities..
low penetration rates and poor quality services on reservations, and other problems of mutualconcern. 8. The Commission will welcome submissions from Tribal governments and other concerned parties as to other actions the Commission might take to further the goals and principles presented herein.”88 47 U.S.C. § 254(b)(3).
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A. Connecting Tribal Communities to Fiber Backhaul
Spectrum access is only a piece of the broadband access puzzle. Meaningful broadband
connectivity requires middle mile and backhaul capacity. The question remains what is the best
way to provide the necessary infrastructure to rural tribal communities. Both laying fiber and
using wireless backhaul are two ways to connect networked fiber to rural communities. Each has
advantages and disadvantages. For example, fiber has much greater capacity but is much more
costly and involves more significant rights-of-way issues. Wireless backhaul, on the other hand,
sacrifices capacity for a lower overhead and ease of installation.
Wireless backhaul in general is an interesting area for further investigation. The Tribal
Digital Village is a striking example of how it can be deployed successfully. TDV’s wireless
backhaul uses towers on average every nine miles with the longest single-hop of over 26 miles.89
Additionally, in rural areas where the ultimate number of subscribers is low, even with 100%
uptake, technologies that offer limited bandwidth but are more cost effective are more realistic.
Creating access to network fiber is also an open question. Network providers have thousands
of miles of fiber optic cable running through or near tribal lands. Approximately every sixty
miles, the signal running through the fiber is repeated. Accessing fiber backhaul via these
repeater, or “ILA,” sites seems promising. If the cost of connecting the fiber network to a middle
mile technology that would run to a tribal community is low, the network providers should have
incentives to provide backhaul capacity even to small communities, thereby increasing the
number of people over which the cost of the network is spread. If, however, the cost to connect
is high, some additional incentive might be necessary, perhaps at the federal level.
B. Spectrum Inventory for Possible Development
Another equally interesting area for exploration is to examine in more detail what potential
89 Matt Rantanen, Tribal Digital Village, phone interview, March 17, 2009.
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spectrum could be opened up for additional use in rural areas particularly for tribal communities.
While unlicensed and hybrid licensing regimes are viable options for spectrum use, there is
relatively little spectrum available for such uses with frequencies of less than 3 GHz.90
Investigating potential spectrum use in licensed bands should also be a priority. In the 3650
MHz band proceeding, the FCC and other federal agencies showed a willingness to maximize
under-used spectrum for rural use, especially under circumstances where incumbent users are
minimal or primarily concentrated in urban areas. One example is the docket currently open at
the FCC on Educational Broadband Service.91
In a Notice of Proposed Rule Making on Extending Wireless Services to Tribal Lands, the
FCC contemplated the possibility of examining current spectrum use.92 The FCC was opposed to
the allocation of spectrum for tribal use alone, citing a need to balance competing needs and
spectrum demands.93 However, it stated an openness to revisiting the issue of spectrum
allocation “if it becomes necessary.”94 The current state of broadband penetration on tribal lands
should be sufficient to raise the issue again, especially given the lack of success with the tribal
lands bidding credit program. Rather than purposing spectrum solely for tribal use, finding and
repurposing spectrum allocated for uses that are not allowed to operate on tribal lands would be
more effective. Of some concern, however, is the FCC statement that “allocating frequencies to
provide new wireless services would not necessarily be effective in promoting the provision of
90 See Appendix B Licensed vs. Unlicensed Spectrum Available Under 3 GHz.91 See FCC Modifies Rules for 2496-2690 MHz Broadband Radio Service (BRS)/ EducationalBroadband Service (EBS) Spectrum Band to Facilitate Wireless Broadband Access WT Docket No. 03-66, 2006 WL 941984.92 Extending Wireless Telecommunications Services to Tribal Lands, Report and Order andFurther Notice of Proposed Rule Making, WT Docket No. 99-266, 15 FCC Rcd. 11794 (2000) at¶ 55-57.93 Id. at ¶ 56.94 Id. at ¶ 57.
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cellular service to tribal lands and that more allocations do not guarantee more service.”95 While
that statement might be true under the TLBC program, allocating additional spectrum for use by
tribal-owned providers might have a very different result.
C. Licensed Spectrum Access through Secondary Markets
While the focus in this analysis is on the efficient use of unlicensed and “licensed-lite”
spectrum, tribal communities ultimately need additional access to licensed spectrum to ensure
both sufficient bandwidth and legal protection against harmful interference. Tribal lands are
often set up well geographically for either partitioning or dissaggregation of spectrum in existing
licenses. Prioritizing service for unserved and underserved areas in could bridge the gap
between tribal communities who are interested in licensed spectrum and license holders.
Additional support for disaggregating licenses that extend into tribal lands could come from the
unique relationship tribal governments have with the federal government. More research is
necessary to formulate a policy that would combine secondary markets and tribal sovereignty to
allow tribal communities access spectrum over tribal lands.96
VI. CONCLUSION
A telecom expert said it succinctly; there are many paths to the top of the mountain, but only
one mountaintop. The same is true for providing broadband connectivity to tribal communities.
A variety of technologies including wireline, wireless, and even satellite will be necessary to
tailor appropriate broadband solutions for individual communities. Similarly, wireless
technology is evolving rapidly, meaning the policies that make sense today may be obsolete in
the near future. Regular evaluating spectrum policy as it relates to Indian Country is necessary
to maximize the likelihood that tribal communities move to or stay at the forefront of next
95 Id .96 See David Wilson, supra note 23 for a through discussion on the interplay betweentelecommunications, tribal sovereignty, federal trust, and state jurisdiction.
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generation technologies and their accompanying applications.
Lastly, much more needs to be done to create awareness within tribal communities about the
potential for broadband connectivity to improve health, education, and employment outcomes.
FCC programs like the Indian Telecommunications Initiative (“ITI”) have focused primarily on
creating awareness about Enhanced Lifeline and Link-Up programs that subsidize telephone
service.97 Tribal communities need additional tools to develop infrastructure plans for their
communities, find funding to build the infrastructure when needed, provide equipment like
computers when necessary, and empower members of their communities to use broadband
connectivity by offering classes and computer training.
97 See David Wilson, supra note 23 at Part V.
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C. Tribal Digital Village Success
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