Outreach Is Good, but FCC Must Act on Tribal Siting Issues, Wireless Industry Says
Wireless industry officials welcomed FCC Chairman Ajit Pai’s outreach to the tribes on siting issues Tuesday. But industry officials also said they fear that without FCC action little progress will be made in curbing what they see as roadblocks to building small cells and other infrastructure on tribal lands. Pai didn’t release a statement about the meeting in Flagstaff, Arizona, but tweeted about it Tuesday, complete with photos from the closed-door meeting. “Excellent exchanges with tribal leaders, from Nez Perce to Pueblo,” Pai tweeted. “Thanks to Navajo Nation Pres. @RussellBegaye for hosting consultation!”
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Wireless carrier lawyers said they're encouraged by the FCC outreach to the tribes, but the record shows that, while the tribal review process has good intentions, it has led to long delays and rising costs. The FCC is going to have to act to streamline the process, the officials said. A carrier executive said his company wanted to build out its facilities in tribal areas, but it has consistently run into roadblocks.
A lawyer who represents infrastructure companies said tribal issues are difficult because the tribes have broad control over siting on tribal land. Tribal issues are “the trickiest" of the siting issues before the FCC, the lawyer said, noting most tribes try to work with industry on siting wireless facilities on non-tribal lands.
“I heard a far more positive dialog on the Section 106 issues than I've heard in prior tribal consultations on this issue,” said James Dunstan of the Mobius Legal Group, who represents tribal interests and was at the meeting. “It was important for the chairman to come out into Indian country and hear the concerns of tribes and some of their first-hand stories of the desecration of tribal burial grounds.” Section 106 of the National Historic Preservation Act of 1966 (NHPA) requires federal agencies to take into account the effects of their undertakings on historic properties.
It's also important that the tribal leaders got to hear from the FCC about 5G technologies and the much-smaller footprint involved with deployment, Dunstan told us. “There still exists significant mistrust of carriers that goes back generations based on all the towers built on tribal lands without permission,” he said. Can Pai “bridge that gap and find a compromise solution? I don't know, but he was certainly fully engaged yesterday and appears willing to find solutions to these issues.”
Various tribal groups didn’t comment. A spokesman for the Advisory Council on Historic Preservation said Pai was right to do more outreach. The group is committed to working with the FCC, the tribes, states and others “to develop solutions that support the rollout of these new technologies, while giving due consideration to historic properties,” the spokesman said. “We are optimistic that acceptable solutions will be found.”
“We need smart policies to ensure 5G infrastructure reaches every community across the nation, including tribal lands,” said Robert McDowell of Mobile Future. “Getting the tribal consultation process right is a critical piece of that effort.” The focus on outreach is appropriate, a CTIA spokesman said. "Modernizing the process would help deliver faster wireless broadband deployment across the country while still safeguarding areas of importance to tribal nations.”
“Although established with good intentions, the current process has had the unintended consequence that Tribes, which serve as ‘consulting parties’ with respect to projects to be located on non-Tribal lands, can actually serve as de facto ‘gatekeepers’ that determine when and if projects move forward,” said CTIA and the Wireless Infrastructure Association in a joint filing when the FCC sought comment in July. “This provides leverage for a growing number of Tribes to press for inappropriate fees and expanded areas of interest.”
The groups said the amounts tribes charge for reviewing applications range from $300 to $500 per site and can cost more than $1,000. “The Commission’s own research ‘suggests that the average cost per Tribal Nation charging fees increased by 30 percent and the average fee for all collocations increased by almost 50 percent between 2015 and August 2016,’” CTIA and WIA said in the filing in docket 17-79. WIA declined to comment on the Pai meeting with the tribes.