[Senate Hearing 107-1024]
[From the U.S. Government Publishing Office]
S. Hrg. 107-1024
TRIBAL TELECOMMUNICATIONS ISSUES
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JOINT HEARING
before the
COMMITTEE ON COMMERCE,
SCIENCE, AND TRANSPORTATION
UNITED STATES SENATE
and the
COMMITTEE ON INDIAN AFFAIRS
ONE HUNDRED SEVENTH CONGRESS
SECOND SESSION
__________
MAY 14, 2002
__________
Printed for the use of the Committee on Commerce, Science, and
Transportation
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SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
ONE HUNDRED SEVENTH CONGRESS
SECOND SESSION
ERNEST F. HOLLINGS, South Carolina, Chairman
DANIEL K. INOUYE, Hawaii JOHN McCAIN, Arizona
JOHN D. ROCKEFELLER IV, West TED STEVENS, Alaska
Virginia CONRAD BURNS, Montana
JOHN F. KERRY, Massachusetts TRENT LOTT, Mississippi
JOHN B. BREAUX, Louisiana KAY BAILEY HUTCHISON, Texas
BYRON L. DORGAN, North Dakota OLYMPIA J. SNOWE, Maine
RON WYDEN, Oregon SAM BROWNBACK, Kansas
MAX CLELAND, Georgia GORDON SMITH, Oregon
BARBARA BOXER, California PETER G. FITZGERALD, Illinois
JOHN EDWARDS, North Carolina JOHN ENSIGN, Nevada
JEAN CARNAHAN, Missouri GEORGE ALLEN, Virginia
BILL NELSON, Florida
Kevin D. Kayes, Democratic Staff Director
Moses Boyd, Democratic Chief Counsel
Jeanne Bumpus, Republican Staff Director and General Counsel
COMMITTEE ON INDIAN AFFAIRS
DANIEL K. INOUYE, Hawaii, Chairman
KENT CONRAD, North Dakota BEN NIGHTHORSE CAMPBELL, Colorado
HARRY REID, Nevada FRANK MURKOWSKI, Alaska
DANIEL K. AKAKA, Hawaii JOHN McCAIN, Arizona
PAUL WELLSTONE, Minnesota PETE V. DOMENICI, New Mexico
BYRON L. DORGAN, North Dakota CRAIG THOMAS, Wyoming
TIM JOHNSON, South Dakota ORRIN G. HATCH, Utah
MARIA CANTWELL, Washington JAMES M. INHOFE, Oklahoma
Patricia M. Zell, Majority Staff Director/Chief Counsel
Paul Moorehead, Minority Staff Director/Chief Counsel
C O N T E N T S
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Page
Hearing held on May 14, 2002..................................... 1
Statement of Senator Boxer....................................... 4
Statement of Senator Burns....................................... 3
Statement of Senator Campbell.................................... 1
Statement of Senator Cleland..................................... 19
Prepared statement........................................... 19
Statement of Senator Inouye...................................... 6
Prepared statement........................................... 6
Statement of Senator McCain...................................... 2
Prepared statement........................................... 2
Statement of Senator Thomas...................................... 5
Witnesses
Day, William, Chairman, Culture and Heritage Committee, United
South and Eastern Tribes....................................... 39
Prepared statement........................................... 41
Edelman, Marcia Warren, President, S.M.E. LLC and Former Senior
Policy Advisor to the Secretary of Commerce for Native American
Affairs........................................................ 20
Prepared statement........................................... 24
Masten, Sue, Chairperson, Yurok Tribe............................ 12
Prepared statement........................................... 16
Snowden, K. Dane, Chief, Consumer & Governmental Affairs Bureau,
Federal Communications Commission.............................. 7
Prepared statement........................................... 9
Stanton, John, Chairman/CEO, Western Wireless Corporation........ 31
Prepared statement........................................... 34
Strand, Michael, Executive Vice President & General Counsel,
Montana Independent Telecommunications Systems................. 27
Prepared statement........................................... 29
Appendix
Brown, John, Tribal Historic Preservation Officer, Narragansett
Indian Tribe, letter dated May 10, 2002, to Hon. Daniel Inouye. 84
Hopkins, M. Teresa, Vice-President, IndigeTEC, Inc., prepared
statement...................................................... 83
Johnson, Hon. Tim, U.S. Senator from South Dakota, prepared
statement...................................................... 83
Watkins, Richard, General Manager, Cellular One, prepared
statement...................................................... 86
TRIBAL TELECOMMUNICATIONS ISSUES
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WEDNESDAY, MAY 14, 2002
U.S Senate, Committee on Commerce, Science, and
Transportation, Meeting Jointly With the
Committee on Indian Affairs,
Washington, DC.
The Committees met, pursuant to notice, at 10:06 a.m. in
room SR-253, Russell Senate Office Building, Hon. Daniel K.
Inouye, Chairman of the Senate Committee on Indian Affairs,
presiding.
OPENING STATEMENT OF HON. BEN NIGHTHORSE CAMPBELL,
U.S. SENATOR FROM COLORADO
Senator Campbell [presiding]. This joint Committee session
will start without Senator Inouye. He is running a little bit
late and asked me to go ahead and start the Committee hearing.
We thank him for scheduling today's hearing on
telecommunications in Indian Country. Since the arrival of the
Internet over 20 years ago, every American surely recognizes
its potential to improve our economy and our standard of
living.
In general, availability of telecommunications information
technology in Indian communities is not the rarity it was 10
years ago. In fact, it is sizeable and growing. A number of
Tribes are already involved in telecommunications. Tribal
involvement ranges from connecting Indian schools to the
Internet, to Tribes regulating and operating telecommunications
services on Indian reservations themselves. We still have a
long way to go, however. Only 39 percent of Indian households
have telephones, compared to 94 percent of non-Native
households.
Law enforcement officers on reservations are often at a
disadvantage because of poor communications equipment, in some
cases, in fact, costing their lives. Most Indian kids are not
being connected to the world via the Internet, as other
American kids are, and health care to rural areas like remote
areas of Alaska are made more difficult and, in fact,
businesses are simply walking away because of the lack of
physical infrastructure on Native lands.
In Native and non-Native communities, telecommunications is
the backbone to development. The weak economic base in much of
Indian America, especially in the Plains Tribes of the Upper
Midwest, make it difficult to support infrastructure
investment. For many private communications firms, it is simply
not profitable to provide services to the vast expanse of
Native American lands. In turn, the lack of physical
infrastructure makes it difficult for these same Native
communities to undertake and attract successful economic
initiatives, so Tribes in many cases are in a Catch-22
situation.
But there is reason for hope. Tribes, tribal organizations
and the business sector are all focusing on the issue, and
looking to broaden technology options for Tribes and helping
them to develop a physical telecommunications infrastructure.
While we are still years away from getting all of Indian
America online, I know this hearing will do a great deal in
informing us how we achieve that end.
With that, I would call on Senator McCain.
STATEMENT OF HON JOHN McCAIN,
U.S. SENATOR FROM ARIZONA
Senator McCain. Thank you, Vice Chairman Campbell, and I
want to thank Senator Inouye for holding this hearing with the
Commerce Committee as well. It is a very important topic, and
we all know how important telephone and telecommunications is,
not only to the world, but to the United States of America, and
unfortunately many Native American communities across the
United States have been left behind.
According to 1990 U.S. Census data, only 47 percent of
tribal households had telephone service. In the 1990 Census, I
am sorry to say, Mr. Chairman, that 4 of the 10 lowest
telephone penetration rates were for reservations in the State
of Arizona, San Carlos, Navajo, Gila River, then Mississippi,
and then Fort Apache. It is not a pleasant statistic for me to
contemplate.
In 1997, Senator Inouye and I worked together to include an
amendment in the 1996 Telecommunications Act to prevent a
further degradation of service to tribal communities. That
amendment ensured that tribal telephone companies would
continue to receive universal service support for the provision
of local telephone service.
I think we all know that wireless is the answer to our
problems in the Indian Country, particularly in a reservation
the size of the Navajo Reservation, but I think it is also very
clear that we are not doing enough. I look forward to hearing
from the witnesses today as to how we can address this very
serious problem in our society, and particularly on Indian
reservations, and I thank you, Mr. Chairman.
[The prepared statement of Senator McCain follows:]
Prepared Statement of Hon John McCain,
U.S. Senator from Arizona
Thank you, Mr. Chairman, for holding today's joint hearing on this
very important topic. In particular, I am pleased the Committee is
joined by the Members of the Indian Affairs Committee in addressing
this critical issue.
The advent of the telephone was one of the greatest technological
marvels in American history. Years ago, having a telephone was a
luxury. Today, having basic telephone service is a necessity that most
of us take for granted. It is critical in order to communicate with
family, friends, business contacts, and more importantly, for use in
times of emergency. The explosion of wireless services and the rollout
of new and advanced telecommunications services are changing the world
as we know it and giving Americans access to information in a way we
never imagined.
Unfortunately, many Native American communities across the United
States have been left behind during the information age and do not have
access to advanced telecommunications services, or even basic phone
service. According to 1990 U.S. Census data, which is the most recent
data available on telephone penetration on tribal lands, only 47
percent of tribal households had telephone service. In Arizona, these
statistics are even more staggering. For example, the 1990 Census found
the telephone penetration rate on the Gila River Indian Community to be
22 percent. According to the Navajo Nation, they have a penetration
rate of 24 percent.
These are sad--and frankly unacceptable-- statistics, especially at
a time when the world is in the midst of a telecommunications
revolution. As the information age progresses, no segment of the
American community should be left behind.
In 1997, Chairman Inouye and I worked together to include an
amendment in the 1996 Telecommunications Act to prevent a further
degradation of service to tribal communities. That amendment ensured
that tribal telephone companies would continue to receive universal
service support for the provision of local telephone service, which is
something that the Telecom Act had not ensured.
Even with universal service support, however, wireline telephone
service is not likely to become the mainstay of tribal
telecommunications. Instead, wireless technologies represent the
future, just as they do in many developing countries throughout the
world. This is good, because wireless technologies are technically more
versatile than many wireline telephone systems and cheaper and quicker
to construct.
In 1998, I placed a very special phone call to Naomi Chiago, an
elder of the Salt River Pima-Maricopa Indian Community. This was an
important phone call because until that time, Ms. Chiago never had the
opportunity to receive a phone call at her home. However, the
deployment of a fixed wireless system allowed her to have basic phone
service. I hope that phone calls like these become more of a reality
for our nation's Native American communities.
Again, I thank the Chairman for holding this important hearing and
look forward to hearing from today's witnesses.
Senator Campbell. Thank you, Senator McCain. In order of
arrival for opening statements we will go to Senator Burns.
STATEMENT OF HON. CONRAD BURNS,
U.S. SENATOR FROM MONTANA
Senator Burns. Thank you, Senator Campbell, and I
appreciate Senator Inouye calling this hearing, especially a
joint hearing. I will submit my statement, but I just want to
paraphrase some things. You know, we do a good job in
identifying the problem reading statistics and all of those
things, but we do not do a very good job in following through
on what Senator McCain and Senator Inouye did in the 1996
Telecommunications Act.
I have 7 reservations in my State. We have moved along as
well as could be expected in wiring our interactive systems
from our universities, at the University of Montana and Montana
State University into the colleges, into the 2-year colleges on
our reservations, but the stats do not lie that we have not
done a lot about residential or other communication challenges
that we find on the reservation.
And Senator McCain is exactly right, wireless is going to
play a big role in this, because in my country, and especially
in Indian country, we have got a lot of dirt between light
bulbs, and I have used that old phrase so many times I am going
to wear it out, but people are starting to understand it now.
I think what we have to do today, and with this hearing,
and what will surface, I think, is to identify the parameters
in which we have to work, and also the challenges within those
parameters. We have to peel back multiple layers of the onion
to get down and make policy that will work in Indian Country.
Some of the layers I believe need discussion, and they should
include, how do we provide basic service to reservations when
incomes are averaging less than $10,000 a year? It is an
economic fact, and we have to deal with that one way or
another, or those conditions, because that prevents us from
deploying a lot of services, advanced services, broadband
services, wireless broadband, and all of those, and I think it
is time we look at it.
How do we approach language barriers and the lack of
interest in phone service? How do we overcome those cultural
obstacles that get in our way from deploying good
communications services, and how do we collect timely data on
reservation penetration and deployment? How do we do those
things?
So we certainly have a lot of challenges ahead of us. It is
important that we recall and refer back to the mandates of the
work that Senator McCain and Senator Inouye and a lot of us
that participated in the 1996 Act, where we clearly stated, and
I quote, ``All consumers in all regions of the Nation,
including low-income consumers in those rural insular and high-
cost areas, should have access to telecommunications and
information services.''
Now, we passed this 6 years ago, and right now our
infrastructure is just not in a position where it is ready to
build out, and it is paramount that the Tribes become more
involved in the process, and we have their constant involvement
and of course their consultation.
A final note, Mr. Chairman. It is a pleasure to have Mike
Strand here on the panel today. Mike is executive president and
general counsel to the Montana Independent Telecommunications
System, and that is a system that we and the State should be
very proud of, and we do not talk, Mike, enough about it, but
what the independents and the coops have done is to basically
wire our State without going past customers.
We had a big build-out of fiber, as you know, nationwide,
but they built right past our customers. Well, this
organization that Mike is involved with is doing a tremendous
job in bringing those broadband services to Tribes and rural
areas across Montana, and I think he could probably share with
us today some of the challenges that they had, but also can
give us an idea on how we could change our policy to make some
things happen, and I appreciate him being here today, and I
thank the Chairman.
[The prepared statement of Senator Burns follows:]*
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* The information referred to was not available at the time this
hearing went to press.
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Senator Campbell. Senator Boxer.
STATEMENT OF HON. BARBARA BOXER,
U.S. SENATOR FROM CALIFORNIA
Senator Boxer. Thank you so much, Mr. Chairman, and I want
to welcome everybody here, thank the leaders of both sides of
the aisle, both Committees.
I really think this is an issue that, as we learn about it,
we can work across the aisle on. I mean, we have talked about
the digital divide. Well, here it is. I mean, it is right here,
and it is something we can do something about together, so I
simply want to take about 2 minutes of time to welcome Sue
Masten in particular, chair of the Yurok Tribe of Northern
California. I am very proud of her. The Yurok Tribe is the
largest Tribe in my State, and the Yurok Reservation is located
in a rural, remote area of Northern California. I have had the
pleasure of working with Sue on a number of issues, and she is
a terrific person, and there is no problem too large for her,
so we just need to work with her to resolve this, and with all
our people who are in this situation.
The telephone was invented more than a century ago and, as
Senator McCain said, only 47 percent of our Native Americans on
reservations have a telephone. I think it speaks poorly of us
that we have not paid attention to this problem. We are
essentially leaving some of our Indian reservations stranded in
the 19th Century, Mr. Chairman, and I do want to work with all
of you to change that.
You know what is amazing is, the Yuroks are 360 miles from
Silicon Valley. When you think about that, 360 miles from
Silicon Valley, and yet they are on the wrong end of the
digital divide. As Sue will point out, 180 households and two
public schools are without basic telephone service. In the most
basic of terms, it means that if a grandfather in one of those
homes has a heart attack, he has no phone with which to call an
ambulance. If a wife goes into labor, she cannot contact her
husband for assistance, and in terms of economic development,
businesses are difficult to attract because of the lack of
phone service. That is obvious. Without phone service you
cannot reach customers, you cannot sell things you make. It is
just a terrible situation, so the artisans cannot sell their
wares outside the reservation, or if they do, it is very
cumbersome.
It keeps the kids from being able to access all of the
educational tools we all know about. Only 9 percent of
individuals living in Native American communities nationwide
have personal computers. Only 8 percent have access to the net.
We have to do better.
So Mr. Chairman, I am pulled to another Committee hearing,
but that does not in any way show a lack of interest. I very
much want to work with you. We have worked together on a lot of
things, so please include me, because I know you and Senator
Inouye and Senator McCain have been leaders on this, and I hope
you will call on me to do everything I can to change this dire
situation. Thank you.
Senator Campbell. Thank you. I think most of our witnesses
recognize the conflicts all of us have.
Senator Thomas.
STATEMENT OF HON. CRAIG THOMAS,
U.S. SENATOR FROM WYOMING
Senator Thomas. Thank you, Mr. Chairman. I will file my
statement, but I want to just say that coming from a State like
Wyoming, why, rural as we are, I understand some of the
difficulties that go on there, and certainly we all want to
provide these kinds of services on the reservations. But I
think we ought to talk a little more about what some of the
basic reasons that it is not, and get down to the real cost. We
can talk about, we want it there. Everybody does that, but we
need to talk about fractionalized land, for example, where you
cannot get rights of ways. We need to talk about some of the
other real causes of the slowness in getting there, and I hope
the witnesses will do that, and we will do that, and really get
down to the roots of it.
Thank you, sir.
[The prepared statement of Senator Thomas follows:]*
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* The information referred to was not available at the time this
hearing went to press.
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Senator Campbell. Thank you, and Senator Inouye is with us
now for the testimony from the witnesses. Senator.
STATEMENT OF HON. DANIEL K. INOUYE,
U.S. SENATOR FROM HAWAII
Chairman Inouye. I am embarrassed to be late, but we are in
the first cycle of the Appropriations Committee, and we have a
few problems.
[Laughter.]
Chairman Inouye. So if I may, I would like to place my
statement in the record. It is a good statement. I just want to
point out that communications are very important, and in Indian
country, for example, in Navajo land, I think the latest study
would indicate that less than 30 percent of the households have
access to telephones, and less than 10 percent of the
households have access to Internet. With that, I do not think
we can maintain our Government-to-Government relationship in a
proper fashion for the 21st Century. So with that, I thank you
all, and may we proceed with our first witness, the chief of
Consumer and Governmental Affairs Bureau of the FCC, Mr.
Snowden.
[The prepared statement of Senator Inouye follows:]
Prepared Statement of Hon. Daniel K. Inouye,
U.S. Senator from Hawaii
Good morning. Today's joint hearing, convened by both the Senate
Commerce and the Indian Affairs committees, focuses on tribal
telecommunications issues. As such, it gives us the opportunity not
only to examine the obstacles facing Native communities in obtaining
basic telephone and Internet services, but also to chart the important
progress being made by many tribes over the past few years. In
addition, we appreciate the participation of Mr. Snowden, so that we
might be informed of the FCC's recent efforts to fulfill its trust
responsibility to federally-recognized Indian tribes and to promote the
expanded availability of telephone service on tribal lands.
In today's world, access to telephone service is essential.
Telephones permit parents to communicate with their children. They
enable people without jobs to contact prospective employers. They allow
individuals with health problems to seek emergency medical assistance.
And finally, they help businesses serve and stay in touch with their
customers. Similarly, while new by comparison, the Internet is fast
becoming a necessary part of modern day life--not only for
communication, but also for access to educational, medical, political,
and financial information.
Unfortunately, for too many Native Americans living on tribal
lands, these essential services are not yet part of everyday life.
Often, a variety of factors contribute to the lack of telephone and
Internet service on tribal lands, including: low population density,
geographical remoteness, low income, and high unemployment.
In 1999, a Commerce department survey studying the technology
infrastructure of Native communities found that only 39 percent of
households in rural Native communities had basic telephone service, and
that only 8 percent of rural households in Native communities had
access to the Internet. These grim statistics not only fall well below
the national average, but also provide a window to the many obstacles
facing tribal leaders in encouraging economic development on
reservation lands.
In July of 1999, the Administration took a number of steps to raise
awareness of these challenges, including President Clinton's historic
visit to the Pine Ridge Indian Reservation in South Dakota--the first
visit to a tribal reservation by a sitting President since President
Franklin Roosevelt.
Following this historic visit, the FCC initiated a number of
proceedings to reaffirm its commitment in helping federal tribes to
meet their communications needs. In June of 2000, the FCC released a
Policy Statement acknowledging the sovereignty of federally-recognized
Indian tribes and reaffirming its commitment to promoting government-
to-government relationships between the FCC and tribes.
Since then, the FCC has initiated other programs designed to expand
the availability of telephone service, including an expansion of
Universal Service programs for low-income residents living on tribal
lands and the creation of wireless bidding credits for new licensees
willing to serve Native communities.
Today, we look forward to the testimony of our witnesses to
determine if these programs are working, whether we are collecting data
sufficient to chart our progress, and what more can and should be done
to extend the reach of telephone and Internet service in these areas.
As such, we look forward to constructive criticism and new ideas as to
how the federal government and the FCC might better encourage the
spread of telecommunications services on tribal lands and might better
meet its responsibilities to tribal governments.
One item of particular concern is the current process by which
competitive telephone carriers apply for eligible telecommunications
carrier'' or ``ETC'' designations that are a prerequisite for the
receipt of certain universal service subsidies. Under the current
process, carriers seeking an ETC designation for service provided on
tribal lands may apply to the FCC only in cases where the carrier would
not be subject to state jurisdiction. Unfortunately, this deference can
lead to undue delay as such carriers may face the burden of
establishing the proper forum for their application before there is any
consideration on the merits of its request. Given the Federal
government's trust relationship with federally-recognized Indian
tribes, I believe that we have an obligation to review these and any
procedures that might slow the roll-out of telecommunications services
to underserved tribal communities.
Accordingly, I look forward to the testimony of the witnesses and
to the questions and comments of my colleagues here today. Let me now
yield, to my colleague the ranking member of the Commerce committee and
former Chairman of the Indian Affairs committee, Senator McCain.
STATEMENT OF K. DANE SNOWDEN, CHIEF,
CONSUMER & GOVERNMENTAL AFFAIRS BUREAU, FEDERAL COMMUNICATIONS
COMMISSION
Mr. Snowden. Good morning, Mr. Chairman and Members of the
Committee. My name is Dane Snowden. I am the chief of the
Consumer & Governmental Affairs Bureau at the Federal
Communications Commission. I appreciate this opportunity to
appear before you today to discuss tribal telecommunications
issues.
On March 25, 2002, the FCC formally completed its
reorganization and formed the Consumer & Governmental Affairs
Bureau. The bureau serves as the agency's primary liaison with
other Federal agencies and Tribal, State, and local
governments. It implements the commission's consumer-related
policy, it responds to consumer inquiries and resolves informal
complaints, and finally, it engages in outreach and education
initiatives intended to inform consumers about important
telecommunications issues and initiatives.
As Senator Burns just stated, Congress articulated a
national goal 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. Two years ago this June, the FCC took
steps consistent with this goal to address historically lower
than average telephone penetration rates on tribal lands. The
commission concluded two comprehensive rulemakings that
resulted in measures to promote telecommunications
subscribership and infrastructure deployment within American
Indian and Alaskan Native tribal communities.
In the first of these orders, the commission amended its
universal service rules to provide additional targeted support
under the universal service low income programs. These Lifeline
and Link Up programs help consumers pay for monthly service and
installation, and create financial incentives for carriers to
serve and deploy facilities in areas that may have previously
been regarded as high risk and unprofitable.
The commission's amendments included up to $25 per month in
additional Federal Lifeline assistance on tribal lands. The
enhanced Lifeline support program brings basic monthly rates on
tribal lands down to $1 per month in most cases, while the Link
Up program helps defray up to $100 of service initiation costs
on tribal lands.
In adopting these enhanced low income programs for
residents of tribal lands, the commission also recognized that
many consumers in rural and low income communities did not know
about the Lifeline and Link Up programs, so the commission
required telecommunications carriers that participate in the
programs to publicize the availability to Lifeline and Link Up.
In June 2000, the commission also adopted a policy
statement in response to the request of Indian leaders for a
statement of policy reaffirming its recognition of tribal
sovereignty and the special trust relationship existing between
the Federal Government and federally recognized Tribes. Among
other things, the FCC committed to endeavor to work with Indian
Tribes on a Government to Government basis consistent with
principles of tribal self-governance to ensure that Indian
Tribes have adequate access to communications services.
Although the commission's efforts are less than 2 years
old, these actions appear to have accomplished a number of key
goals. For example, more consumers have been made aware of the
enhanced Lifeline and Link-Up programs and, as a result, more
people are getting affordable telephone service on tribal
lands. Since first implemented in the last quarter of 2000,
enhanced Lifeline subscribership has increased by approximately
177 percent nationwide.
Increased access to basic telecom services can mean greater
prosperity, both economic and otherwise, for all. Conversely,
the absence of basic telephone service within the home places
its occupants at a disadvantage with respect to seeking
employment and contacting emergency personnel, for example. The
commission believes that with greater awareness of the tools
and resources available to increase telecommunications access,
tribal nations will be better able to help connect their
members to much-needed telecommunications services both as
consumers and, for some, as providers of those services.
The commission is committed to bringing this knowledge to
Indian Country through a variety of means. Currently, the
commission provides information to tribal communities about
enhanced Lifeline and Link Up and other matters related to
telecommunications services through meetings with tribal
representatives, its Web site, and its toll-free consumer
centers.
In addition, this June the commission is launching a
national outreach program called Get Connected, Afford a Phone,
which seeks to inform consumers on nontribal and tribal lands
about the availability of the Lifeline and Link-Up programs. As
part of this initiative, we will contact each of the more than
550 federally recognized Tribes and various Tribal
Associations. We will also coordinate with those Federal
agencies providing services on tribal lands, and provide
information and guidance on how to take advantage of these
programs. In addition, the bureau will continue to endeavor to
work closely with your respective Committees in these efforts.
The FCC remains committed to advancing the goals of
improving the quality of life in Native American communities
through improved telecommunications access. Rather than a
single annual outreach event, the commission will focus on a
series of interactive workshops among Tribes, Federal
Government agencies, and the communications industry. Our new
approach will be called the Indian Telecommunications
Initiative, or ITI, and it will acknowledge that different
Tribes are in different stages of economic development and face
different impediments to telecommunications deployment.
The goal of ITI is to encourage partnerships among Tribes,
Federal agencies and industry to improve telecommunications
access in Indian communities, and to do so in a manner that may
permit the commission to target those communities where the
need is most pronounced.
Finally, with the formation of the Consumer & Governmental
Affairs Bureau, the commission will formalize meetings between
Tribes and commission staff to provide a forum and a single
point of entry for individual tribes to explore the various
tools and resources available to them. Ultimately, our goal is
to engage more direct input from Indian Country to decide how
to move forward in bringing telecommunications access to Native
American communities.
Working collaboratively with other Federal agencies, rather
than in isolation, the commission believes it can be more
effective in improving the overall quality of life for
residents of Indian Country through telecommunications
development. By casting a broad net and seeking input, coupled
with a targeted approach, the commission increases the chances
of finding workable solutions that can be adapted to meet the
telecommunications needs of Native American communities.
I thank you, and I look forward to any questions.
[The prepared statement of Mr. Snowden follows:]
Prepared Statement of K. Dane Snowden, Chief, Consumer & Governmental
Affairs Bureau, Federal Communications Commission
I. Introduction
Good morning, Mr. Chairman and Members of the Committees. My name
is K. Dane Snowden, and I am the Chief of the Consumer & Governmental
Affairs Bureau at the Federal Communications Commission. I appreciate
this opportunity to appear before you today to discuss tribal
telecommunications issues.
On March 25, 2002, the FCC formally completed its reorganization.
As part of that reorganization, the Consumer & Governmental Affairs
Bureau was formed. The Bureau serves as the agency's primary liaison
with other Federal agencies and tribal, state and local governments. It
implements the Commission's consumer-related policy through rulemakings
that address issues such as slamming and cramming. It responds to
consumer inquiries and resolves informal complaints. And finally, it
engages in outreach and education initiatives intended to inform
consumers about important telecommunications issues and initiatives.
As part of its intergovernmental affairs functions, the Bureau has
primary responsibility within the agency for establishing and
developing relationships with Federally-recognized American Indian
tribes. The Bureau works closely with the Commission's other bureaus
and offices to address telecommunications issues of concern to the
tribes.
II. Background
The Telecommunications Act of 1996 codified the Commission's
historical commitment to promote universal service to ensure that all
Americans have access to affordable, quality telecommunications
services. Congress articulated a national goal 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.'' Those living in American
Indian and Alaskan Native tribal communities are included.
Two years ago this June, the FCC took steps consistent with this
goal to address historically lower-than-average telephone penetration
rates on tribal lands. The Commission concluded two comprehensive
rulemakings that resulted in measures to promote telecommunications
subscribership and infrastructure deployment within American Indian and
Alaskan Native tribal communities. In the first of these Orders, the
Commission amended its universal service rules to provide additional,
targeted support under the universal service low-income programs, the
so-called Lifeline and Link-Up programs, to help consumers pay for
monthly service and installation and create financial incentives for
carriers eligible to receive universal service support to serve and
deploy facilities in areas that may previously been regarded as high-
risk and unprofitable.
Lifeline allows eligible consumers to save money on their basic
monthly telephone service fee. The Commission's amendments included up
to $25.00 per month in additional Federal Lifeline Assistance on tribal
lands. This Enhanced Lifeline support brings basic monthly rates on
tribal lands down to $1 per month in most cases. In comparison, for
consumers living on non-tribal lands, the discount is up to $8.50 per
month, depending on the state of residence. Link-Up offsets initial
connection charges and line extension costs associated with the
initiation of service. Link-Up helps defray up to $100 of such costs on
tribal lands, and up to $30 on non-tribal lands. For more information
about these programs see http://www.fcc.gov/cgb/consumerfacts/
lowincome.html.
In addition to implementing these amendments, the Commission
broadened the consumer qualification criteria for low-income consumers
on tribal lands to include income-dependent eligibility criteria
employed in means-tested programs in which Native Americans may be more
likely to participate. These include Bureau of Indian Affairs general
assistance, Tribally Administered Temporary Assistance for Needy
Families (or TTANF), Head Start or the National School Lunch Program.
In adopting these ``Enhanced'' low-income programs for residents of
tribal lands, the Commission also recognized that many consumers in
rural and low-income communities did not know about the Lifeline and
Link-Up programs. So, the Commission required telecommunications
carriers that participate in the programs to publicize the availability
of Lifeline and Link-Up to reach those likely to qualify for them.
Finally, in this Order, the Commission established a framework
designed to streamline the process for eligibility designation of
carriers providing service on tribal lands. With such designation,
carriers are eligible to receive universal service support. Under this
framework, a carrier seeking an eligibility designation for the
provision of service on tribal lands may petition the Commission for
such designation.
In a companion Order, the Commission established bidding credits
for use by winning bidders in spectrum auctions who pledge to deploy
facilities and provide service within three years to Federally-
recognized tribal areas that have a telephone penetration rate at or
below 70 percent. A winning bidder may receive a $300,000 credit for up
to the first 200 square miles of qualifying tribal lands within its
license area.
Finally, in June 2000, the Commission adopted a Policy Statement in
response to the requests of Indian leaders for a statement of policy
reaffirming its recognition of tribal sovereignty and the special trust
relationship existing between the Federal government and Federally-
recognized tribes. In this statement of policy, the FCC committed to,
among other things, endeavor to work with Indian tribes on a
government-to-government basis consistent with principles of tribal
self-governance to ensure, through its regulations and policy
initiatives and consistent with the Communications Act, that Indian
tribes have adequate access to communications services.
These steps represented the culmination of an examination of the
issues involved in providing access to telephone service for Native
Americans living on reservations. This examination included, in part,
meetings here in Washington involving Commission staff, representatives
from other Federal agencies, and Indian tribal leaders, as well as
field hearings in Albuquerque, New Mexico and Chandler, Arizona.
Today, the telephone penetration rate for tribal lands remains well
below the nationwide rate of 95 percent. Although there is promising
news for some tribes, looking more closely, we observe that certain
tribes enjoy penetration rates approaching the national average; for
others, the penetration rate continues to remain far below. For
example, Mescalero Apache Telecom, a tribally-owned carrier which
serves the Mescalero Apache Reservation in New Mexico recently
celebrated its first anniversary and announced that it has more than
doubled subscribership on the reservation from 650 to 1,449 customers.
In contrast, last month I met with representatives of the Yurok Tribe
of Eureka, California, who told me that basic phone service is not
widely available to its members.
Although the Commission's efforts are less than two years old,
these actions appear to have accomplished a number of key goals. For
example, more people have been made aware of the Enhanced Lifeline and
Link-Up programs, and, as a result, more people are getting affordable
telephone service on tribal lands. Since first implemented in the last
quarter of 2000, Enhanced Lifeline subscribership has increased by
approximately 177 percent nationwide.
Because more consumers can afford service as a result of these
programs, tribal communities have become more inviting to existing
telecommunications carriers and, in some cases, even new carriers or
providers. For example, Western Wireless and Smith Bagley, two wireless
providers, have commenced serving Federally-recognized reservations in
South Dakota, Arizona and New Mexico.
III. Targeted Indian Country Outreach
Increased access to basic telecommunications services can mean
greater prosperity--both economic and otherwise--for all. Conversely,
the absence of basic telephone service within the home places its
occupants at a disadvantage with respect to seeking employment and
contacting police, fire departments, and medical providers in an
emergency, for example. Basic telecommunications services may also
provide access to more advanced services. Voice telephone is currently
the most common means of household access to the Internet, and the same
copper loop used to provide ordinary voice telephone may be used for
broadband services.
The Commission believes that with greater awareness of the tools
and resources available to help increase telecommunications access,
tribal nations will be better able to help connect their members to
much-needed telecommunications services, both as consumers and, for
some, as providers of those services. The Commission is committed to
bringing this knowledge to Indian Country through a variety of means.
Currently, the Commission provides information about Enhanced
Lifeline and Link-Up and other matters related to telecommunications
services on tribal lands on its Internet site. http://www.fcc.gov/
indians. Additionally, consumers may call the Commission's Consumer
Center toll-free at 888-CALL-FCC and talk with an FCC customer
representative to learn more about these matters.
In June 2002, the Commission is launching a national outreach
program called, ``Get Connected: Afford-A-Phone,'' which seeks to
inform those otherwise eligible of the availability of the Lifeline and
LinkUp programs. As part of this initiative, the Consumer &
Governmental Affairs Bureau will contact each of the more than 550
Federally-recognized tribes. In addition, the Bureau has identified to
date 25 tribal associations that will also be contacted. The Consumer &
Governmental Affairs Bureau will also coordinate with those Federal
agencies providing services on tribal lands and provide individuals
easy-to-understand information and guidance on how to take advantage of
these programs. Finally, the Bureau will continue to endeavor to work
closely with your respective committees in these efforts.
One of the Commission's key outreach efforts in Indian Country is
hosting educational conferences on increasing access to
telecommunications services.
One of these conferences is the Indian Telecom Training Initiative
(ITTI). The FCC postponed ITTI 2001 in the wake of the September 11,
2001 terrorist attacks and rescheduled it for September 2002. However,
because of decreased advance registrations and acknowledgement of the
first anniversary of the tragedy of September 11, the Commission
decided, in consultation with our conference co-sponsor, the National
Exchange Carrier Association (NECA), to cancel ITTI 2002.
The FCC remains committed to advancing the goal of improving the
quality of life in Native American communities through improved
telecommunications access.
The Commission will shift its focus from a single annual event to a
series of interactive workshops among tribes, Federal government
agencies and the communications industry to address telecommunications
issues facing Indian Country. Our new approach will be called the
Indian Telecommunications Initiative (ITI). It acknowledges that
different tribes are in different stages of economic development,
particularly where telecommunications access is concerned, and
recognizes that different tribes face different impediments to
telecommunications deployment.
The goal of ITI is to encourage partnerships among tribes, Federal
agencies, and industry to improve telecommunications access in Indian
communities and to do so in a manner that may permit the Commission to
target those communities where the need is most pronounced.
Finally, in addition to these targeted Commission initiatives, from
time to time, tribal representatives meet with FCC staff to obtain
information about our various telecommunications programs. With the
formation of the Consumer & Governmental Affairs Bureau, the Commission
will formalize these meetings between tribes and Commission staff to
provide a forum for individual tribes to explore the various tools and
resources available to them consistent with the government-to-
government relationship acknowledged in the Commission's Policy
Statement.
IV. Conclusion
Given the Commission's continuing commitment to increasing
telecommunications access in Indian Country, we want to engage in
dialogue with tribes, industry, and other Federal agencies as well as
the states to decide how best to achieve our mutual goal.
Then, working with tribes and other interested parties, the
Commission can further develop an outreach plan to address those needs
on a more targeted level. Ultimately, our goal is to engage more direct
input from Indian Country to decide how to move forward in bringing
telecommunications access to Native American communities.
The Commission proposes to seek the input of other Federal
agencies, especially those that are charged with issues like education,
health care, housing and employment to draw on their expertise, as
access to basic telecommunications services is key to each of these
areas.
The Commission further proposes to seek the input of the
telecommunications industry, so that the potential of all technologies:
wireless, wireline, cable and satellite can be explored.
Working collaboratively with other Federal agencies, rather than in
isolation, the Commission believes it can be more effective in
improving the overall quality of life for residents of Indian Country
through telecommunications development.
By casting a broad net in seeking input, coupled with a targeted
approach, the Commission increases the chances of finding workable
solutions that can be adapted to meet the telecommunications needs of
Native American communities.
I look forward to answering any questions you have.
Chairman Inouye. Thank you very much, Mr. Snowden, and now
may I call upon the chairperson of the Yurok Tribe of
California, Ms. Masten.
STATEMENT OF SUE MASTEN, CHAIRPERSON, YUROK TRIBE
Ms. Masten. Good morning, Chairman Inouye, Vice Chairman
Ben Nighthorse Campbell, and Committee members. It is a
privilege and honor for me to be able to participate in a
subject so dear to my heart as access to telephones and the
Internet. I have the distinct honor of serving as the
chairperson of the Yurok Tribe, which, as you heard from
Senator Boxer, is the largest Tribe in California. We have
4,500 plus members.
We are located on the beautiful wild and scenic Klamath
River in two of the northernmost counties in California, on the
coast, Del Norte and Humboldt. We are in the heart of the
redwoods. It truly is God's country, and when the Creator came
to Yurok country he promised that the Yurok people would not
want for anything, and before the early 19th Century we were
self-sufficient and affluent.
However, that is not the case today. We had aboriginal
territory that spanned over 400,000 acres. Currently our
reservation at least is located within our homelands, and is
approximately 55,000 acres. Unfortunately, because we had a
wealth of redwood trees and in those days they said you could
walk across the backs of the salmon, we were hit hard with
those things that hit Indian Country. You sell your land, oh,
you have timber, your land went too. All those things that
occurred everywhere else happened to us because we were wealthy
in resources, so today, of a 55,000-acre reservation, only
3,000 acres are held in trust for the Yurok Tribe. So I do want
to talk a little bit about the rural area, because we are in a
river gorge one mile either side of the Klamath River,
extremely rural; our communities upriver are at least 2 hours
from any emergency services, and two-thirds of the reservation
is without power or telephones. We have approximately, as the
Senator indicated, 180 homes that are Upper Reservation, two
elementary schools, a Head Start facility, a governmental
facility, and several small businesses located on the Upper
Reservation, all without telephone services.
We have been a Tribe that has always been federally
recognized. However, we were not organized until 1993, when we
adopted our constitution and elected our Government as we see
it today. However, we have been extremely concerned about being
able to provide telephone services to our community, and have
been actively engaged in looking for ways to bring electricity
and telephones to our Upper Reservation.
I think it is a shame that today, in this land of
prosperity, and also in this land of opportunity, that there
would be communities that would be without basic telephone
services and without electricity. It is not okay that our
children are growing up and will be disadvantaged, will not
have the same opportunities, but will have the same
expectations in the educational system and in the employment
field that they know how to use the Internet, and that they
know how to use computers. It is not surprising that they are
not being able to be successful or competitive in the job
market or in the educational system. Nor can we expect that our
businesses will be competitive in the marketplace without
having access to telephones or to the Internet to market their
products. And without basic roads, telephone and electricity,
it is difficult and impossible to attract businesses to the
reservation, so it should not come as a surprise that we have
an unemployment rate that is at 70 percent-plus, or that our
poverty rate is at 90 percent-plus, and it is not likely that
is going to improve without having those basic infrastructures
in place.
I think you heard from the Senator when she talked about,
we take for granted in our daily lives that we can call 911 if
our mother or our father had a heart attack, or if a child was
being born, or if someone falls or someone is drowning in the
river. We take advantage of the fact that someone will be there
within minutes. On our Upper Reservation, someone is not there
for 2\1/2\ hours. If you are fortunate enough to get to a
telephone to reach someone to come, you are 2 hours away from
the telephone, and although some residents have radio
telephones, they do not work if there is any fog in the area or
any clouds, so if you get to a telephone it is unlikely that
the radio phone will work to be able to provide that assistance
to you. Emergency services being 2 hours away, it is likely
that life-threatening situations will result in the loss of
life, and that is not okay in this day and time, in our
opinion.
I think it is also important to recognize that if we are
going to be effective in trying in our own process in trying to
bring telephones to the reservation, we have searched
everywhere. Because we do not have economic development
dollars, we cannot take advantage of the low interest rate
loans, because how are we going to pay those loans back? If we
cannot leverage the million dollars that we have by accessing
other things that help us to bring telephones and electricity,
we are not going to be able to overcome those barriers.
We are located in an area that is not franchised by a
carrier, so although there are telephone services all around
us, within 11 miles of us, the area that we are located in is
not a franchised area by a carrier, and although our people
have petitioned electric companies and telephone companies
throughout the last 50 years, it has been to no avail because
it is not cost-effective for these companies to do business.
They are not going to recover their investment, and so we have
been without telephone services or electricity.
I think that we have tried to make efforts. We have brought
public safety to the area. We took advantage of the COPS grant,
and although our offices have brought more coverage to the
reservation, if the residents cannot call them in an emergency
situation, using 911 or any other mode, then they are
compromised for being able to provide those additional
services. And although we currently are building two fire
stations for the Upper Reservation through a HEAD grant, the
residents will not be able to contact the volunteer firemen, so
the best of what we can do is not to save a home, but to keep
the fire from spreading to other areas or other homes, which is
unfortunate.
We were able to in the initial stages contact the PUC in
California to ask them for some assistance or recommendations
for what we could do to try to bring telephone service to the
reservation, and they suggested we contact the local carriers
in the area. Well, at the time they told us they were not
interested, but we learned of a possible sale that was
occurring, and so we intervened in that sale to the PUC and
asked for, because of public safety reasons, for them to
intervene and to call for some provisions for bringing service
to the reservation. And we were successful because of those
public safety risk issues in convincing the PUC to provide
additional provisions within that intervention that required
them to bring telephone services to the Upper Reservation
community at Weitchpec, which is at the most upper region in
the territory, and to the two elementary schools in that
region.
However, due to the economic situation the sale fell
through. The current carrier, Verizon, is in confidential
discussions with us, and we are hopeful that they will still
want to meet some of those requirements that were conditions on
the sale, and we are trying to remain optimistic that will
happen.
I am running through here, because I am just talking to you
about our situation, to be sure that I cover everything that I
want to with you.
Under medical services, we are fortunate enough to have a
medical clinic in our Weitchpec Office. However, in order for
them to provide the service, and for their staff to be there
and to man that facility, they require that a doctor be
present, unless you can access a doctor by telephone. We do not
have telephones, and so unfortunately the clinic is only able
to operate when the doctor can be present, which is only twice
a month, as opposed to every day of the week, so our people are
left without that service, and the nearest hospital is 2 hours
away in the Hoopa Valley.
And as I mentioned, with economic development, with the
additional burden of not having the basic infrastructure, it
only allows for us to have very limited activities that occur
on the reservation, and that is not going to provide for
economic stability to those communities, and unless we do
something to encourage that basic infrastructure development,
it is not likely that the unemployment rate or the poverty
level will improve for the Yurok Tribe.
Under housing, we do have a wonderful housing authority,
wanting to encourage tribal members to move back to the
reservation. It is difficult to build homes if you do not have
electricity, roads, and power lines to be able to encourage
people to want to live in the Upper Reservation Area. It is a
hard way of life to live. To not be able to go to the
refrigerator to get something cold, or not to be able to wash
your clothes, or to be able to call someone is a hard way to
live in today's time. Or to expect that your children are going
to do their homework by a lantern is difficult to conceive in
this day and time.
I would like to just end by talking a little bit about what
are the kinds of things that you can do to change the
situation, and as you can see, we are caught, and most Tribes
are caught in a Catch-22 situation. We do not have the money to
develop the basic infrastructure, and these are not going to
change unless that occurs.
We ask that you look at ways to provide for capital, that
you look at ways to provide for additional incentives, tax
credits, so that people will want to partner up with the Tribes
to bring this much-needed service to the reservations. We ask
that with the Lifeline project, that you encourage the local
carriers to partner up with the Tribes to get the word out. We
are trying to reach those who need it the most, and yet they
are not aware that it is available to them, so I ask that you
encourage them to do that.
Ask that the FCC put some teeth into the recommendations to
provide service to reservations so that there is additional
incentive there. We would ask that you look at ways to provide
technical assistance. We were at a disadvantage for negotiating
with the carrier, as well as for looking at what technology
would best meet our needs, and so I ask that you look at ways
to provide for technical assistance to Tribes as they look at
how they bring telecommunications or access to the Internet to
the reservation.
I would like to also ask that you update and improve the
data that is available on telecommunications and access to the
Internet in Indian Country, and that you have someone who is
responsible to oversee that, and someone who is in charge of
disseminating information to Congress, the agencies, and the
Tribes. And in conclusion, I would just like to say no matter
what label you put on it, there still exists a major gap
between the technology haves and the have-nots in this Nation
for much of Indian country and, in particular, the Yurok Tribe,
where the gap does not refer to the difference between having a
T-1 line or a dialup modem, but it refers to having a dial tone
in your home.
As you may recall, I was recently the president of NCAI,
and as such I took it upon myself to develop a policy
initiative in the Committee to take a look at the digital
divide, which resulted in the publication of ``Connected Indian
Country: A Tribally Driven Telecommunications Policy.'' I ask
that you consider the tribal-driven recommendations in that,
and to seriously give weight to that.
In conclusion, no one today in America should be without
telephones, electricity, and I trust that you will not allow
for Indian Country to continue to be left out in this
technology world.
Thank you.
[The prepared statement of Ms. Masten follows:]
Prepared Statement of Sue Masten, Chairperson, Yurok Tribe
Mr. Chairman, members of both committees, I am Susan Masten,
Chairwoman of the Yurok Tribe. I am grateful for the opportunity to
testify today of this matter of great significance to our tribe--the
lack of telecommunications services on a significant part of our
Homelands.
BACKGROUND. The Yurok Tribe, with about 4,300 members, is the
largest federally recognized Tribe in California. The Yurok Reservation
spans Humboldt and Del Norte Counties and is one of the most rural and
isolated areas in Northern California. The Reservation contains
approximately 55,000 acres, of which only 3,000 are owned in tribal
trust status. The reservation is one mile on each side of the Klamath
River from its confluence with the Trinity River, and stretching
approximately 50 miles northwest to the Pacific Ocean. The Klamath
River is federally designated as a wild and scenic river. Sadly it also
has been recently designated as seriously environmentally threatened.
Most of the Reservation is a river gorge.
The current Yurok Reservation is small portion of our aboriginal
territories, which once included significant portions of the Hoopa
Valley, the Redwood National Park and the adjacent National Forests.
The Yuroks are a fishing and timber people whose abundant resources had
made us quite self-sufficient until the late-nineteenth century.
Although we have long been a federally recognized tribe, the Yurok
Tribe was not formally organized until 1993 when under inherent tribal
sovereignty we adopted a Constitution, that has been recognized by the
Department of the Interior, and began the council form of government
that I represent today. Also today, we reside on a Reservation, that
thankfully is within the places we have been since time immemorial, it
is, however, a place without basic infra-structure--roads, bridges,
electricity, and telephones.
Due to lack of roads, the Yurok Reservation is divided into
separate communities--the Upper and Lower Reservations, named for the
flow of the Klamath River. The Lower Reservation is located along busy
coastal highway, U.S. 101, where most basic infrastructure services are
available. However, the Upper Reservation, the larger land area which
contains two public schools, approximately 200 homes, a health clinic
and two community centers, lacks basic telephone service, power, safe
roads and adequate police and fire protection.
Consequently, the Yurok People in the Upper Reservation live in
very bad conditions; conditions fairly unique in modern day America.
Even though the high-tech Mecca of the San Francisco Bay Area is just
250 miles south of our Reservation, Yurok children attending the our
public schools and our Head Start Center in the Upper Reservation do
not have regular telephone service, let alone access to the Internet,
and like President Lincoln in the early 19th century they must study by
lantern light. It is not surprising that Yurok children often fall
seriously behind their peers in educational opportunities.
There is almost no economic opportunity on the Upper Reservation.
The unemployment rate in the Upper Reservation exceeds 70 percent and
the poverty level is over 90 percent. Although it our homeland, due to
the conditions that I have briefly described, Yurok people are often
forced to leave the Reservation to seek employment elsewhere.
EXISTING TELEPHONE SERVICE. The Upper Yurok Reservation is not
within the franchise territory of any telephone company and has no
traditional telephone service. In addition, the topography of the
Reservation (as noted previously, a river gorge), combined with its
distance from existing cell towers, limits the availability of cellular
telephone service within the Upper Reservation to only a handful of
locations. Radio-telephone service, which consists of two-way radios
that are trunked to the publicly switched telephone network, is
available to subscribers. However, radio telephone service is not
private (radio signals can be picked up by any other subscriber to the
service as well as any police scanner), so the schools, clinic, and
Tribal Office cannot use this system to conduct private or confidential
business. Perhaps, more importantly, radio-telephones are significantly
affected by weather and do not work when it is foggy or cloudy--
conditions that occur on a regular basis in this area and therefore are
unreliable. Other than radio-telephone and extremely limited cellular
telephone service, there is no other means of modern communication for
residents of the Upper Reservation.
In an effort to help and protect its Members, the Yurok Tribe has
worked to establish telephone service in the upper Reservation
communities. In 1995, our Planning and Community Development staff
members contacted the California Public Utilities Commission (``PUC'')
to explore options for the provision of telephone service on the Upper
Yurok Reservation. The PUC recommended that the Yurok Tribe contact
providers of such service in the area. Accordingly, we contacted both
local providers, GTE and Contel, concerning telephone service to the
upper Reservation. Both telephone companies stated that it was not
economic for them to extend service to the Upper Reservation. These
telephone providers did however provide service to similar small
communities in the surrounding areas. Since that time, GTE has combined
with Contel and is now known as Verizon.
Verizon continues to provide telephone service to Indian and non-
Indian communities that surround the Upper Reservation but not to the
upper Reservation. Verizon provides telephone service to the
communities of Hoopa and Willow Creek just south of the Yurok
Reservation, the community of Klamath on the Yurok Reservation to the
northwest, and the community of Orleans to the north. The Yurok
Reservation is surrounded by isolated and rural communities with
identical geography and similar population densities, although not
necessarily all Indian. The Yurok Tribe continues to encourage Verizon
to establish telephone service to the Upper Reservation Indian
communities of Weitchpec, Ke'pel, Sregon, Pecwan, and Wautec.
In fall of 2000, the Yurok Tribe intervened in an application
before the California Public Utilities Commission (CPUC) that sought
the approval of a sale of Verizon service areas to Citizens
Communications. This sale included all of the Verizon service areas
around the Upper Yurok Reservation. The Yurok Tribe stated in its
intervention petition that it was in the public benefit to make
extension of basic telephone service to the Upper Reservation a
condition of this Verizon sale. The Tribe successfully convinced the
CPUC that the serious health and safety risks and economic disparities
associated with lack of telephone service to the Upper Reservation
would continue unmitigated without action by the CPUC. The CPUC
included numerous conditions requiring the extension of service to the
Upper Reservation in its Decision approving the sale. However, due to
other factors, including recent economic uncertainties and the slowdown
in the telecommunications industry, the sale was not consummated.
At this time, the Yurok Tribe and Verizon are engaged in good faith
and confidential discussions, which we hope, will result in at least
some of the telephone service issues being resolved.
EFFECTS OF NO TELEPHONE SERVICE. Even though most of the areas
surrounding the Yurok Reservation have basic telephone service,
residents of the upper Reservation have no telephone service and no
access to the Internet. Unlike all other locations surrounding the
Yurok Reservation, children attending schools on the Yurok Reservation
are denied access to the Internet as an information source and learning
tool. As a result, all other children in the area, except the children
enrolled in public schools on the upper Yurok Reservation, have the
opportunity to develop the crucial Internet skills that will be
expected of them by future employers. The Upper Reservation children do
not have computers in their homes to assist in homework assignments or
to help them do research on the Internet. This lack places them well
behind other youth in many areas, including in college admission and
seeking higher education. In addition, residents of the upper
Reservation have no access to distance learning opportunities.
Specifically,
Approximately 180 households, a General Store, several small
businesses, and three churches on the Yurok Reservation have no
basic telephone service;
Two public schools with approximately 90 students are
without basic phone service or access to the Internet;
One Head Start Center, supporting approximately 30 children
and their families, is completely without phone and Internet
service;
Two Community Centers are without telephone service and,
therefore, have no communications link with other Tribal
offices and cannot provide badly needed Internet based
community resources.
Public Safety. The Yurok Tribe formed a Public Safety Department in
2001. The direct delivery of public safety services by a Tribal
department is a tremendous advancement for the Tribe. However, upper
Reservation residents still do not have the ability to contact the
police directly in the event of an emergency. The lack of telephone
services compromises the ability of the Public Safety Department to
protect the Reservation.
Because of the distance between most of the upper Reservation
communities and emergency first-responders (the California Department
of Forestry and Fire Protection in Elk Camp near Orick and the Humboldt
County Sheriffs Substation in Hoopa), the lack of reliable telephone
service poses a significant health and safety risk to residents in the
event of an emergency. Initial contact with a 911 operator is a crucial
element of an emergency response. Pre-arrival 911 instructions could
provide guidance that could allow a family member or other by-stander
to stabilize an injured person in the two-hour plus period between the
accident and the time emergency services arrive at an accident in the
upper Yurok Reservation area. Because of the lack of a telephone
utility, upper Reservation residents are not able to contact 911. The
elderly and disabled residents do die as a result of delays in
accessing emergency medical treatment.
The Yurok Tribe has received a grant from HUD to construct two fire
stations in the Upper Reservation. In addition, the Tribe and the
residents of the Upper Reservation have combined to form the newest
fire department in the nation. However, even with the addition of the
new fire stations and a fledgling fire department, the lack of
telephone service prevents residents from reporting fires and other
emergencies. Without telephone service, the fire department is unable
to provide early intervention in the event of a house fire, and instead
must only work to prevent the fire from spreading to adjacent houses.
Medical. Because there is no reliable or secure telephone service
available to the Upper Reservation, the United Indian Health Services
(UIHS) Clinic, our local tribal consortium that contracts with I.H.S.
to deliver health services, located at the Weitchpec Community Center
is unable to operate as it was intended--as a functioning health clinic
staffed by medical professionals. UIHS requires that, if no doctor is
present onsite, staff must be within regular contact by telephone. But,
because there is no telephone service between the Clinic site and
Weitchpec and other UIHS facilities, the other staff cannot effectively
staff the Clinic unless a doctor is present. Therefore, UIHS cannot
effectively provide medical services at the Clinic. Instead, the Clinic
will only be operated approximately two days per month when a doctor
can be present until regular telephone service is available.
Economic Development. The unemployment rate on the Upper
Reservation is approximately 70 percent and the poverty rate exceeds 90
percent. Although many residents are gifted artisans they are unable to
effectively market their products because of the lack of telephone
service and access to the Internet. The Yurok Tribe is dedicated to
providing economic opportunities on the Yurok Reservation to encourage
Tribal members to return to and remain on the Reservation. ``Cottage
industry'' or home-based ``e-commerce'' businesses are not available to
residents of the upper Reservation. Further, Yurok Tribal members
living on the upper Reservation cannot take advantage of federal
procurement preferences available to American Indians because the
federal government requires businesses to have the ability to transact
business via electronic commerce.
In addition, the Yurok Tribe cannot attract businesses to locate in
the upper Reservation due to the lack of telephone service. Without
telephone service, only the most primitive economic activities are
viable in the upper Reservation. Although these are important
activities to the Yurok Tribe, they will not result in the economic
development necessary to improve conditions on the Yurok Reservation.
Housing Development. Developing new housing within the Upper
Reservation is a priority for the Yurok Tribe and the Yurok Indian
Housing Authority. Without basic telephone service, power, and adequate
roads, and few if any nearby economic opportunities, it is difficult to
justify constructing such housing. Further, without new housing
construction and any promise to develop the basic building blocks of
Upper Reservation communities, it will be impossible to encourage
Tribal Members to return and difficult to retain those already there.
The trend threatens the future existence of these critical Upper
Reservation communities--communities that are closely linked to
traditional Yurok life-style and culture.
ISSUES AFFECTING THE EXTENSION OF TELEPHONE SERVICE. Telephone
service has not been extended to the Yurok Reservation because this
portion of the Reservation was never included within the franchised
area of a telephone company. In addition, it is very costly to build
the facilities required to provide service to this area. Providers
believe that there would be little financial return on the investment
to provide telephone service. To make matters worse, the roads on the
Upper Reservation are all single-lane and are without sufficient
rights-of-way to accommodate widening to a standard roadway cross-
section. The roads are so narrow, including a 21-mile one-lane State of
California Highway (State Route 169), that the roads may not be able to
safely handle the addition of a utility pole at the road's edge.
Further, there is no utility grade power available to operate the
switching facilities that will be required to support telephone service
at locations such as Jack Norton School, the Ke'pel Head Start Center,
and the Judson Brown Community Center.
To facilitate the construction of telephone lines to serve the
Upper Reservation communities several things should happen in tandem.
First, the Upper Reservation should be included within the service area
of a telephone company that has the means and motivation to provide
service. Federal and State universal or High-Cost should be available,
and perhaps increased, to make the provision of high quality telephone
service to the Upper Reservation feasible. Further, the federal
government should provide funding to support the extension of power
lines as well as the widening of existing roads to unserved upper
Reservation communities to ensure that reliable telephone service can
be made available safely. If roadway improvements are constructed
concurrently with telephone and power line installation, significant
cost savings can be realized. At a minimum, power and telephone lines
should be installed simultaneously, because the cost of installing
either one at a later date is significantly higher.
Thank you for this opportunity to testify.
Chairman Inouye. Thank you very much, Ms. Masten.
We have been advised that a vote is on right now, but
before I call upon the next witness, may I recognize Senator
Cleland.
STATEMENT OF HON. MAX CLELAND,
U.S. SENATOR FROM GEORGIA
Senator Cleland. Thank you very much, Mr. Chairman. Just
very quickly, with no objection I would like to enter my
complete statement in the record.
Chairman Inouye. Without objection.
Senator Cleland. Ms. Masten, you make a key point here on
overcoming the digital divide. I have some legislation in this
very Committee to facilitate that in terms of minority-
servicing institutions which would include tribal colleges and
universities. I was shocked when we had a young man from the
Navajo Nation in Arizona indicate that only 28 percent of
people on his reservation had telephones. That was quite
shocking to me, so I am very much in sympathy with the
panelists here, Mr. Chairman, and I am glad you are holding the
hearing.
Thank you very much, sir.
[The prepared statement of Senator Cleland follows:]
Prepared Statement of Hon. Max Cleland,
U.S. Senator from Georgia
I want to commend the Commerce and Indian Affairs Committees for
holding this important hearing today. Almost three months ago, the
Commerce Subcommittee on Science, Technology, and Space held a hearing
on the so-called ``Digital Divide'' at America's Minority-Serving
Institutions--our Tribal Colleges and Universities, Historically Black
Colleges and Universities, and Hispanic-Serving Institutions. At that
hearing we heard compelling testimony that a distinct disparity exists
in computer and Internet use among students in this country who are of
different racial, ethnic, and income backgrounds. The case was made, by
some, that American Indians are the ethnic group most likely to be
caught on the wrong side of the digital divide. In fact, Richard
Williams, director of the American Indian College Fund, has said, and I
quote: ``the digital divide in Indian Country is like a canyon.''
Testifying at that February hearing was Dr. Gerald Monette,
President of Turtle Mountain Community College in North Dakota and
Chairman of the Technology Committee at the American Indian Higher
Education Consortium. Dr. Monette shocked many of us in that hearing
room when he stated that less than 50 percent of homes on Indian
reservations have telephones. Less than fifty percent--less than half--
and this is compared to 95 percent of homes nationwide. Dr. Monette
gave us other compelling statistics at that hearing: Less than 10
percent of American Indian households have computers. No more than 8
percent of all American Indian homes have access to the Internet. Only
one tribal college currently has funding for high-band width
connectivity, but it is not in place yet.
The good news is that Dr. Monette also talked about efforts being
taken by the Native American community to turn this situation around.
He talked about the historic Circle of Prosperity conference called two
years ago, where for the first time ever local, national and
international stakeholders were called together to develop strategies
to bring modern technology to remote tribal colleges and reservations.
Dr. Monette told us about Bay Mills Community College, located in a
refurbished fish plant in Michigan's Upper Peninsula, which is using
technology and distance learning to deliver higher education to all 11
tribes in Michigan and to people in 17 other states, from Florida to
Alaska. He told us about a wireless technology pilot program at 4
tribal colleges which will eventually weave a high-speed broadband web
around all of the 32 tribal colleges and universities as well as the
reservations they serve.
So I'm looking forward to today's hearing. I want to hear about the
digital opportunities that exist to ensure that Native American
communities are fully included in this nation's prosperity. I also want
to hear the response of our panelists to S. 414, legislation which I
have introduced and which is cosponsored by 14 Senate colleagues, to
provide up to $250 million to help Tribal Colleges and Universities,
Historically Black Colleges and Universities, and Hispanic-Serving
Institutions bridge the digital divide. Funds provided under S. 414
could be used for such activities as campus wiring, equipment upgrade,
technology training, and hardware and software acquisition. Under my
bill, Minority-Serving Institutions could compete for funds regardless
of where they are on the ``technology spectrum.'' The language would
allow funding, regardless of whether the college is seeking basic
connectivity or upgrading an existing system to dramatically increase
its connectivity speed rate. Again, I commend the chairmen of these two
committees for calling today's hearing. I want to hear our panelists'
recommendations on how we can meet the challenge which Dr. Monette
posed to the Commerce Committee three months ago--the challenge of
``building a bridge of technological opportunity across our vast
nation.''
Chairman Inouye. Thank you very much.
I will recognize Ms. Warren Edelman. She represents S.M.E.,
president and former Senior Policy Advisor to the Secretary of
Commerce for Native American Affairs. Ms. Warren Edelman.
STATEMENT OF MARCIA WARREN EDELMAN, PRESIDENT, S.M.E. LLC AND
FORMER SENIOR POLICY ADVISOR TO THE SECRETARY OF COMMERCE FOR
NATIVE AMERICAN
AFFAIRS
Ms. Warren-Edelman. Good morning, Mr. Chairman and Members
of the Committee. Thank you very much for inviting me to
testify today on this very relevant and urgent issue.
Chairman Inouye. Ms. Warren----
Ms. Warren-Edelman. Yes.
Chairman Inouye. Could you bring your microphone closer?
Ms. Warren-Edelman. Thank you. Is that better?
Again, thank you for inviting me to testify this morning. I
am pleased to come before the Committee today to provide a
broad perspective on telecommunications access in Indian
Country. I come to this hearing with my background at the
Department of Commerce, where I did work on issues relating to
closing the digital divide in Indian Country, as well as the
coauthor of a report published by the Benton Foundation in 1999
entitled, Native Networking, Telecommunications and Information
Technology in Indian Country.
I would like to relate a little bit of my experience when I
first did that report. I started to do the research for that
for a telecommunications company I was employed by. They needed
a market assessment on telecommunications in Indian Country,
and I started out doing the research assuming that there would
be data, and that there would be plenty of information for me
to put together such a report. To my great surprise, there was
none.
The only report that was in existence at that time was the
Office of Technology Assessment Report from 1995, which
provided what little information we had on tribal communities
and their efforts to access basic telephone service, the
Internet, and other telecommunications services and products in
order to provide for cultural preservation, health, and
education needs.
Since that time, we have been fortunate to have not only
the Benton Foundation report but also two reports, both from
the Department of Commerce, released in 1999, one from the
National Telecommunications and Information Administration, and
also the other one from the Economic Development
Administration, which focused on this issue. However,
information since that time has not been forthcoming, has not
been updated nor accurate.
I believe that this particular situation in Indian country
again is urgent, it is severe, we have heard many personal
experiences related today, I have heard them over the past few
years. I think from what I have heard, and the little bit of
data that we have been able to gather, we can point to three
particular areas of need that can be addressed in either
current proposed legislation or Federal programs that are
already in existence, and some that may need our support.
I would say three issues, lack of current and accurate
information, which you have already heard quite a bit about
today, lack of ongoing coordination of resources is another
major need area, and the third one, lack of investment capital
and technical assistance. All three contribute to the
environment that we see today.
As I mentioned before, we did have three reports coming out
in 1999. Nothing new has come through, except for the report
that holds policy recommendations from NCAI, and I concur with
Chairwoman Masten to look at those results and really take into
consideration those recommendations, but in terms of baseline
data what we are looking for is more than just policy
recommendations. We are looking for baseline information that
measures not only telephone access, but also existing tower
locations.
I remember one conversation I had with a woman from the
Navajo Nation trying to find what existing towers existed on
their tribal lands, and there was no data that she could find
to that effect, and that was months and months of looking for
that, and that was unacceptable.
Secondly, the type of technology currently utilized or
might best be utilized, either wireless, versus satellite,
versus whatever technology is out there, that should be
examined closely. And Internet access, which is quite
important. Any new studies must also take into consideration
the differences in Indian Country, and I am talking about
large, land-based Tribes versus Tribes that are close to urban
locations that might have easier access to some of those
services.
We all talk about how each Tribe has very specific and
varying degrees of connectivity. That should be taken into
consideration with any studies that occur.
The results of such studies would not only provide, I
think, Federal agencies and also Congress with the data that is
needed to fully support any legislation or programs in place,
but also would provide Tribes with the means to justify
business cases, which would increase either investment from the
outside into these communities, or in their own ability to
create infrastructure to be able to get loans, to be able to
get the means in order to create the infrastructure that is so
badly needed.
The second point I was making, lack of ongoing coordination
of resources, I have to commend all the organizations, both
Native, Federal, private foundations, all of those that have
been involved over the past, I would say 7 to 10 years, in
really, looking at the digital divide if you want to call it
that, or the gap in technology access. But all these efforts
have been not well coordinated in terms of getting actual
connections between Tribes, the foundations, the businesses,
the Federal programs that can really come together to put
together comprehensive efforts that would meet this need.
Tribes cannot be expected to do this alone. The cost of
infrastructure, especially telecommunications infrastructure,
is high, and it is ongoing. This is not a field where it is
going to end within 2 years in terms of costs. These are
ongoing costs that Tribes need to consider.
I would support, and I would encourage the Committees to
consider supporting the creation, like Chairman Masten was
saying, of either an individual program or such organization,
and I would have to say probably outside the Federal sphere, to
coordinate these resources, information, also provide research,
any kind of analysis and coordination that is possible to help
Tribes and the businesses and the foundations and the programs
that are interested in helping them come together effectively.
The third area, lack of investment capital and technical
assistance, as I said before, telecommunications equipment,
products, and services are an expensive business. It requires
money. Tribes cannot do it all alone. From my experience at the
Department of Commerce, I could point you towards the direction
of some programs that were highly effective. The first one
would be the technology opportunities program. Since 1994, it
has funded over 18 tribal projects that are serving as models
within Indian Country.
In fiscal year 2001, the program provided $4.2 million to
tribal communities throughout the Nation, a record amount. I
would highly support this program as being effective and being
innovative in how it helps Tribes form partnerships on the
ground, is responsive to a grassroots-level planning process
that results in, I believe, long-term successes in Indian
Country.
Also within the National Telecommunications and Information
Administration is the public telecommunications facility
program, which funded the American Indian Higher Education
Consortium satellite-based distance learning network which
serves 31 tribal colleges today.
As part of the Department of Commerce over the past 3
years, I was very proud of this program. However, there is
still a need, even though the tribal colleges are connected
through the satellite distance learning network, again we are
talking about the last mile technology. For those people that
cannot get to the tribal colleges there is nothing in between
the tribal college and either home or community centers or
offices of some sort. And I am talking about another kind of
technology that can bridge that gap, that can bring the
educational benefits of those tribal colleges being linked
together to them. I would encourage the Committees to take a
look at that particular issue.
The Department of Agriculture's rural utility service has
provided loans to five tribal entities to create tribal
telephone companies, again a very important factor in closing
the gap in tribal communities, and the Economic Development
Corporation again under Department of Commerce has provided
much-needed funding for planning for these Tribes in order to
incorporate technology and telecommunications into the economic
development plans.
Again, as I have mentioned, a number of private foundations
have worked with Tribes in order to close this gap. I would
refer you to a Web site, www.digitaldivide.com, for more
information on these joint partnerships and programs. However,
the fact remains that Tribes need access to capital, really
need access to capital. Funding from Federal programs is very
much needed, but I would stay focused in the area not only in
building up infrastructure, but planning. Planning is
essential. There is not enough money for planning out there,
period. From planning and needs assessments, each Tribe can
then take a look at where capital should be funneled towards in
terms of technical assistance, development of last mile
telecommunications systems, equipment purchase and maintenance,
pilot programs and projects which are again essential in terms
of bringing new technologies out to Indian lands, and actually
seeing if they work, and also seed capital for
telecommunications and information technology business
development.
I would also encourage that the Federal Communications
Commission continue to maintain an active and ongoing
relationship with Tribes. I am encouraged to hear that the
Indian Telecom Training Initiative has not disappeared along
with the annual conference, which I do have to say, the first
one was quite successful and was the only conference to date
that I know that was able to bring together over 500
representatives from Indian Country to speak about this one
issue. I was happy to actually be part of that. It was a
fantastic conference.
I think FCC really does need to take a look at any existing
regulatory barriers and really focus on supporting in-house
their tribal liaison. Whoever that person may be really needs
to have the support of the FCC fully and be able to provide the
best information to the Tribes as they need it, and really keep
that level of responsiveness immediate and ongoing.
Lastly, I believe a vehicle must be created to encourage
outside investment in our tribal communities, either through
loan funds, investments, joint partnerships. One source of
capital is not enough, never enough to address this issue,
especially in the consideration of the importance of the long-
term nature of telecommunications access.
In conclusion, I would like to commend both Committees for
addressing this issue. We have been talking about it for many,
many years, both on the Federal side, Congressional side, and
Indian Country. I cannot emphasize enough that the talking
needs to stop, and action needs to happen now. We are falling
way behind. Economic development needs to happen for our
communities. It cannot happen without infrastructure, and
Tribes need to have all barriers removed toward achieving that
end, and all the support we can give in order to do that.
As a member of Santa Clara Pueblo in New Mexico, this hits
home for me, and as a person that has worked with fantastic
Tribes and very dedicated individuals in this issue, I can
really say that I believe in this issue and I would be happy to
help in any way possible.
Thank you, and I look forward to answering any questions
you may have.
Chairman Inouye. Thank you very much, Ms. Warren Edelman,
and Mr. Strand.
[The prepared statement of Ms. Warren Edelman follows:]
Prepared Statement of Marcia Warren Edelman, President, S.M.E. LLC and
Former Senior Policy Advisor to the Secretary of Commerce for Native
American Affairs
Good morning, Chairman Inouye, Chairman Hollings, Vice Chairman
Campbell, Vice Chairman McCain, Members of the Committee, tribal
representatives and leaders, and distinguished guests. Thank you for
the opportunity to present testimony today on this very important issue
in Indian Country.
My name is Marcia Warren Edelman and I am the President of S.M.E.
LLC, a consulting firm that provides strategic planning and business
development services in the areas of Native American policy, economic
development, and telecommunications and information technology. From
1999 to February of this year, I served as the Department of Commerce's
Senior Policy Advisor to the Secretary for Native American Affairs
where I had the opportunity to work on a number of issues and
initiatives, including the Department's focus on closing the Digital
Divide. I am also the co-author of ``Native Networking:
Telecommunications and Information Technology in Indian Country,'' a
policy report and resource manual published by the Benton Foundation in
1999.
I am pleased to come before the Committees today to provide a broad
perspective regarding the impact of the lack of telecommunications
access to tribal nations, as well as to discuss a number of solutions
that have been proposed to address this serious need.
As you have heard during the course of today's hearings, the lack
of telecommunications access in Indian Country is urgent and severe.
Based on the statistics and information related from tribal communities
across the nation, it is clear that the infrastructure needed to
support connectivity for every Indian individual in his or her home or
community continues to remain, for the most part, unavailable and
unaffordable. Three reasons can be cited as contributing factors to
this situation:
Lack of current and accurate information
Lack of ongoing coordination of resources
Lack of investment capital and technical assistance
Lack of current and accurate information
In 1999, three reports were published which examined the state of
connectivity in Indian Country. All three found that Native Americans
face an urgent situation where current infrastructure capabilities fall
far behind that of the United States, threatening the economic,
educational and cultural self-sufficiency of tribes and their
communities.
``Falling Through the Net: Defining the Digital Divide'' published
by the Commerce Department's National Telecommunications and
Information Administration (NTIA) found that:
For telephone penetration, rural Native American households
(76.4%) rank far below the national average (94.1%).
Rural Native American households' access to computers
(26.8%) is also lower than the national average (42.1%).
Overall, Native Americans are also behind in their access to
the Internet (18.9%), compared to the national average (26.2%).
The Economic Development Administration (EDA) supported these
findings in their report, ``Assessment of Technology Infrastructure in
Native Communities,'' with similar data and identified the dilemma
faced by many tribes in this area:
``Today, many Native communities find themselves in a vicious
circle. The weak economic base of these communities makes it
difficult to support infrastructure investment. And in turn,
the poor state of infrastructure undermines their ability to
undertake and attract successful economic development
initiatives.''
Finally, the Benton Foundation's report, ``Native Networking:
Telecommunications and Information Technology in Indian Country,''
provided not only an effective guide to the policies and resources
affecting tribes, but also presented the following challenge:
``Tribes must begin at home to define the needs and goals
important to their communities, and then reach out and forge
the relationships necessary to achieve those goals. As well,
federal agencies, foundations, businesses and policy makers
must include tribes and Indian people in their scope of
telecommunications and technology growth and opportunities.
Only then, when these two spheres meet and a new network of
relationships is created, will the mandate of the Information
Superhighway truly be fulfilled.''
Since 1999, the only new information that has been published on
telecommunications access and policy in Indian Country is the July 2001
report by the National Congress of American Indians (NCAI) entitled,
``Connecting Indian Country: Tribally-Driven Telecommunications
Policy.'' NCAI, under a grant from the AOL Foundation, created the NCAI
Digital Divide Task Force in 2000 with the purpose of providing a forum
for tribal leadership to address the top policy issues regarding
telecommunications policy in their communities and on a national level.
The report brings together the findings of the Task Force under four
priority areas: access; economic development, workforce training and
education; content; and sovereignty. I would like to refer the
Committees to review this report on www.indiantech.org or www.ncai.org,
and consider the action items and specific policy changes recommended
by the tribal leaders and representatives that served on the Task
Force.
However, as important as policy discussions may be, it is
imperative that current and accurate baseline data is obtained to fully
measure the current status of telecommunications access in Indian
Country. Currently, no new such data has been gathered or compiled,
even though the 2000 Census has been completed and the National
Telecommunications and Information Administration (NTIA) has published
two more reports in the Falling Through the Net series--both without
data on American Indians and Alaska Natives (due to inadequate sampling
size of existing data).
Accurate statistics are extremely important, not only to measure
the telephone penetration rates of our tribal communities, but also to
identify other indicators of telecommunications access such as existing
tower locations, the type of technology currently utilized (wireless
vs. landline), and Internet access. Any new studies must also take into
consideration the differences in Indian Country (large land-based
tribes vs. reservations near urban areas) and it must continue to track
this information consistently. The results of such a study would in
turn provide federal agencies, businesses and tribes with the support
needed to develop funding programs, strategic plans and viable business
cases.
I encourage the Committees to identify the means to perform
comprehensive and ongoing studies in order to update the 1999
information presented in the reports listed above.
Lack of ongoing coordination of resources
To this date, a number of Native organizations, federal agencies,
businesses and non-profit organizations have been actively involved in
addressing the issue of telecommunications access in Indian Country.
All of their efforts deserve recognition for the excellent work that
has been done to close the gap. Unfortunately, there has been no single
organization that has provided coordination between these groups and/or
served as a voice for advocacy, policy recommendations and resource
coordination.
I encourage the Committees to consider supporting the creation of a
national-level program or organization housed outside the federal
government focused on promoting equal access to, and the appropriate
use of, telecommunications and information technologies in Indian
Country through coordination, research, analysis, the dissemination of
information and federal policy advocacy.
Lack of investment capital and technical assistance
Telecommunications equipment, products and services are an
expensive business. For many tribes, it is simply a luxury they cannot
afford. In many cases, members of tribal communities cannot call
relatives away at school or work, cannot call 911 in an emergency,
cannot create a new business for lack of telecommunications
infrastructure, cannot access online information that the rest of the
nation takes for granted. ``E-government'' does not exist and cell
phone coverage stops at reservation borders. This situation is
unacceptable and tribes should not be expected to provide the funds to
address this situation alone.
Fortunately, there exist a number of federal programs that have
been able to work with tribes to begin addressing this issue:
The National Telecommunications and Information
Administration (NTIA): NTIA has helped to extend the benefits
of information and communications technology to American Indian
and Alaska Native communities through two grants programs, the
Technology Opportunities Program (TOP) and the Public
Telecommunications Facilities Program (PTFP). TOP provides
matching grants to non-profit entities, tribal, state and local
government, and since 1994 has funded over 18 tribal projects
that are serving as models within Indian Country. In FY 2001,
the program provided $4.2 million to tribal communities
throughout the nation, a record amount. PTFP has made a
significant contribution to the public broadcasting system in
Indian country by providing matching grants to over 40 tribal
communities throughout the United States for the planning,
construction, and replacement of outdated public radio and
television equipment. In addition, PTFP funded the
establishment of the American Indian Higher Education
Consortium (AIHEC) satellite-based distance-learning network,
which serves 31 tribal colleges.
The U.S. Department of Agriculture's Rural Utility Service
(RUS): RUS has made loans to five tribal entities to create
tribal telephone companies, including the Gila River Telephone
Company, Tohono O'Odham Utility Authority, Fort Mojave
Telecommunications, Cheyenne River Sioux Telephone Authority,
and San Carlos Apache Telecommunication Utility. Together,
these companies now provide service to approximately 8,000
Native American subscribers. In addition to loans, the RUS also
provides technical assistance and counseling in formulating
development plans.
The Economic Development Administration (EDA) has provided
much-needed funding to a number of tribes for planning and
economic development that focuses on and/or utilizes
telecommunications and information technology.
In addition, a number of private foundations are working in
partnership with tribes and businesses to create infrastructure, access
to hardware and software, and technical assistance for
telecommunications needs in Indian Country. I encourage the Committees
to access www.digitaldividenetwork.com for more information on these
projects.
However, the fact remains that tribes need access to capital in
order to significantly impact the current lack of infrastructure so
common in their communities today. Funding from federal programs is
imperative for all areas of telecommunications access, but most
especially for planning and needs assessments, as each situation of
each tribe is unique does not necessarily apply to all tribal
communities. Based on the accurate determination of needs and goals,
capital can then be applied to other priority areas such as:
technical assistance
development of ``last mile'' telecommunications
equipment purchase and maintenance
pilot programs/projects
seed capital for telecommunication and information
technology business development
In addition, it is essential for the Federal Communications
Commission (FCC) to maintain an active and ongoing relationship with
tribes to examine any existing regulatory barriers that may exist, as
well as identify programs and successful models to increase
telecommunications access in underserved communities.
Lastly, a vehicle must be created to encourage outside investment
in our tribal communities, either through loan funds, investments,
joint partnerships, etc. to work in conjunction with federal and
private funding. One source of capital is not enough to address this
issue, especially in consideration of the importance and long-term
nature of telecommunications access.
I encourage the Committees to support existing or proposed
legislation that facilitates increased access to capital for
telecommunications infrastructure development and maintenance, planning
and business development.
In conclusion, I would like to commend the Committees for holding
this joint hearing on tribal telecommunications issues and I look
forward to seeing the creation of legislation that will address this
issue, which is of great relevance and importance to tribal nations
throughout the country. Thank you for your invitation to testify, and I
welcome any questions you may have.
STATEMENT OF MICHAEL STRAND, EXECUTIVE VICE
PRESIDENT & GENERAL COUNSEL, MONTANA
INDEPENDENT TELECOMMUNICATIONS SYSTEMS
Mr. Strand. Thank you very much, Mr. Chairman. Good
morning.
I would like to thank the Committees for allowing me this
time to offer my observations with respect to the deployment of
basic and advanced telecommunications services to Native
Americans. I represent five small rural telephone companies
operating in Montana. They range in size from about 5,000 lines
to about 10,000 lines. Their service areas include four Indian
reservations, the Fort Peck, Fort Belknap, Rocky Boy, and Crow.
Our reservation areas are a challenge for us. Our most
current information is that the average per capita income on
the reservations we serve is approximately $8,000 per year.
Many residents, particularly the elderly, do not speak English;
many others have lived their entire lives without telephone
service, and are not interested in the service regardless of
price; and finally, there is an understandable mistrust of
programs and projects offered to them by non-Indians.
Like many small rural telephone companies around the
country, we acquired the bulk of our reservation exchanges from
the local Bell Operating Company in the last 10 years. To give
you an example of how that has worked, I will focus on the
experiences of one of our companies, Project Telephone Company.
I think a lot of the things that Project has done will be
instructive and valuable as other companies look at how to
increase penetration on their reservations. Project purchased
all but one of the telephone exchanges on the Crow Indian
Reservation from U.S. WEST in 1994. Telephone service to the
Crow at that time was abysmal. Subscribership was approximately
50 percent. The equipment and facilities were antiquated, and
customer service was practically nonexistent.
Upon purchasing U.S. WEST's assets in the area, Project
immediately invested $2 million in new digital switching
equipment, fiber optics and new copper plant. We implemented
new construction policies so that any home or business located
within 1 mile of one of our lines could get service with no
construction charges. Formerly, many Crow had been told they
would have to pay thousands of dollars to get telephone
service. We hired all Crow-speaking customer service
representatives and field technicians to do telephone hookups.
A tribal member was appointed to our board of directors. We
made dialup Internet access available to every customer, and we
made high-speed Internet access using DSL technology available
to two-thirds of the tribal members. We expanded the local
calling area so the reservation could call Montana's largest
city without incurring toll charges. This is important because
many tribal members lose their telephone service for nonpayment
of long distance charges.
Finally, we aggressively pushed the enhanced Lifeline and
Link-Up program to those who were eligible. Of the 1,423
residential lines in our service area on the Crow Reservation,
490, or 34 percent of the lines are currently involved in the
enhanced Lifeline program that makes local service available
for $1 per month. This is a critical program. As we have
traveled around the country talking to other Native American
groups, we found that many of them think that this program is
unique to Project Telephone Company. Clearly, telephone
companies across the country are not making their reservations
well enough aware that this program exists.
Well, not surprisingly, subscribership grew. In the 8 years
since we acquired the exchanges on this reservation, it has
increased from 50 percent to nearly 85 percent, and continues
to grow.
I mention Project's experience, because it underscores a
fact that I think is little known in Washington today. Many
reservation areas around the country have been sold to
companies like Project in the last 10 years. When the Bell
Companies owned these areas, their requirements for return on
investments simply provided them no incentive to provide
service to the reservations, but for companies like Project,
that only had 4,000 lines to begin with, reservation areas are
simply not that different from the rural areas they already
serve.
Before any significant changes in Federal policy occur with
respect to phone service and the reservations, I would like to
call upon Congress and the FCC to ensure that they are fully
aware of the accomplishments of companies like Project so that
their policies do not undermine those efforts. I think this
point dovetails nicely with the testimony you have already
heard that the current information out there is hopelessly out
of date. The 1990 Census information that Senator McCain
mentioned is out of date for all of the reservations with which
I am familiar.
I understand the central theme of this hearing is ETC
designation. I would like to make a couple of points in that
regard, and then I would be happy to answer questions at the
appropriate time.
Our companies operate one of the most successful cellular
operations in the State of Montana. It is called Sagebrush
Cellular, and we have tremendous coverage. We have taken a
saturation approach to tower siting so that we cover not just
the main highways but also the secondary roads, making it very
popular with farmers and ranchers in Montana.
While we love wireless technology for specific
applications, we are very skeptical as to its suitability as a
universal service offering in most cases. The wireless service
we have seen deployed in rural areas is not nearly as reliable
and robust as wire line service. Wireless service is subject to
congestion problems because of a lack of communications
channels built into most systems. It has very poor redundant
power supply in the event of an extended power outage. It is
subject to distortion, fade, or outright blocking, depending on
the frequency used. It has problems with weather conditions and
line of sight issues. With very few exceptions, it provides
incredibly slow and unreliable connections to the Internet, and
finally, very few wireless providers offer their customers a
choice of long distance service. In rural areas, where incomes
are low, folks need to be able to shop around for the best deal
on long distance.
That said, if there is no traditional wire line provider
that is willing to provide true universal service to a
reservation area, then by all means wireless should be used to
keep those folks connected to the national network.
The other point I would like to make is that current FCC
policy with regard to ETC designation needs to be fundamentally
reviewed. There are three very significant problems with it.
The first is that the FCC's policy is to give competitive ETC's
the exact same support per line as the incumbent ETC, based on
the incumbent's cost of providing service. This policy will
inevitably drive service quality in rural America to a lowest
common denominator, because the FCC does not require the
competitive ETC to match the incumbent in terms of service
quality.
The second point is that when the FCC decides to take up an
application for ETC designation itself, rather than leaving the
decision to the State commission, the FCC lacks the
investigative tools to make an informed decision. The
competitive ETC files an application with the FCC. Interested
parties file comments, and the application is either granted or
denied. There is no hearing. There is no discovery. There is no
opportunity for cross-examination.
ETC designation is an extremely important decision. The FCC
needs to make certain that the representations made in a
competitive ETC's application are true. If not, when a natural
disaster strikes and the phones do not work, someone is going
to get hurt.
The FCC is not the appropriate decisionmaker with respect
to ETC designations on reservations. Where the reservation has
a well established public utility commission of its own that
has experience regulating rates and service quality, it is in
the best position to determine what is best for the
reservation. Where the State public utility commission has
historically taken on that role, it is in the best position.
The FCC is simply too far away, and its investigative processes
are too limited to make such important decisions.
Thank you for this opportunity to express my views, and I
would be happy to answer questions.
[The prepared statement of Mr. Strand follows:]
Prepared Statement of Michael Strand, Executive Vice President &
General Counsel, Montana Independent Telecommunications Systems
Good Morning. I would like to thank the Committees for allowing me
this time to offer my observations with respect to the deployment of
basic and advanced telecommunications services to Native Americans.
I represent five small rural telephone companies operating in
Montana. They range in size from about 5,000 lines to about 10,000
lines. Their service areas include four Indian reservations: Fort Peck,
Fort Belknap, Rocky Boy and Crow. Our companies are quite progressive,
offering DSL services to nearly 60 towns with populations under 2,000.
Reservation areas are a challenge for us. Our most current
information is that the average per capita income on the reservations
we serve is approximately $8,000 per year. Many residents, particularly
the elderly, do not speak English. Many others have lived their entire
lives without telephone service and are not interested in the service
regardless of price. Finally, there is an understandable mistrust of
programs and projects offered by non-Indians.
We have rigorously reviewed our operating policies and procedures
to address these challenges. These efforts have been quite successful,
a point on which I will provide greater elaboration in just a moment.
While we are primarily wireline providers, we love the attributes
of wireless service for particular applications. Where a customer's
primary need is to make a mobile voice communication, there is no
better solution than cellular or PCS.
That said, we are far less enamored of wireless as a universal
service offering, particularly in rural areas. Our view of a universal
service offering is that it is the solid, reliable connection to the
national network for people in remote areas. It needs to work in bad
weather and when there is a power outage. It needs to work regardless
of the vagaries of terrain and line-of-sight. When calling outside
their local community, users need to be able to select an affordable
long distance provider, and they need to know that they can get a
reliable connection to the Internet at a reasonable speed. Generally
speaking, wireline service has these attributes and wireless service
does not. That is why we continue to believe that wireline service is
the best universal service offering in rural Montana.
This brings me to the problems inherent in the current FCC approach
to ETC designation.
The first problem is one of process. At the FCC, an application is
filed, interested parties can file comments, and the application is
either granted or denied. There is no hearing. There is no opportunity
for discovery. There is no opportunity for cross-examination.
Why is this a problem? As an example, we operate a cellular company
in northern Montana called Sagebrush Cellular. It has not applied for
ETC status.
Another cellular provider in the same area did apply to our state
public service commission for ETC designation. The provider claimed to
provide service to all locations in the area, which is roughly the size
of the state of West Virginia. It has three towers. Sagebrush Cellular
has 22 towers, using the same type of equipment and providing the same
service throughout the same area. Nonetheless, there are still almost 5
percent of the homes and businesses in the area that Sagebrush does not
reach. In our view, the applicant's coverage claims were highly
improbable at best.
However, had the application been processed by the FCC, there would
have been no opportunity to ask the provider's engineers what miracle
they had performed to reach more customers with three towers than we
could reach with 22. Fortunately for the area and for the federal
Universal Service Fund, the state public service commission's process
included such opportunities to delve beneath the surface of the
application, and the application was ultimately withdrawn.
Another problem is the FCC's current funding rules for universal
service. The FCC's definition of universal service is extremely basic.
The companies I represent provide service that exceeds the FCC's
definition by a wide margin. To do so, they incur costs. The FCC has
decided that a competitive ETC is to receive support based on the
incumbent's costs. So a competitive ETC's incentive is to spend just
enough on service to meet the FCC's definition and then receive support
based on the incumbents costs of providing service. Faced with that
situation, an incumbent has little choice but to reduce the quality of
its service so it can match the competitor's costs and, by extension,
its prices. This drives service quality in rural America to a lowest
common denominator. We find this deeply troubling.
The FCC has, in at least one case, decided to preempt state
commission jurisdiction with regard to ETC designation on Indian
reservations. The Supreme Court has made clear that state law is not to
be preempted unless specifically authorized by Congress or where state
regulation would interfere with tribes' rights to govern themselves.
Congress has not specifically granted the FCC authority over ETC
designation on reservations. Further, since the effect of FCC
preemption is to move the decision from the state commission to the
FCC, this is not a case where the tribe is allowed to govern itself in
this regard. The appropriate decision-maker is the state public service
commission that has regulated rates and service quality for decades.
On a final note, I would like to briefly describe a company called
Project Telephone Company. Project purchased all but one of the
telephone exchanges on the Crow Indian Reservation from U.S. WEST in
1994. Telephone service to the Crow at that time was abysmal.
Subscribership was approximately 50 percent. The equipment and
facilities were antiquated, and customer service was practically non-
existent.
Project immediately invested millions of dollars in new digital
switching equipment, fiber optics, and new copper plant. We implemented
new construction policies so that any home or business located within 1
mile of one our lines could get service with no construction charges.
Formerly, many Crow had been told they would have to pay thousands of
dollars to get service. We hired Crow-speaking customer service
representatives and field technicians to do hook-ups. A tribal member
was appointed to our Board of Directors. We made dial-up Internet
available to every customer and DSL available to nearly two-thirds of
the tribal members. We expanded the local calling area so the
reservation could call Montana's largest city without incurring toll
charges. Finally, we aggressively pushed the enhanced Lifeline and Link
Up programs to those that were eligible. Of the 1,423 residential lines
on the Crow Reservation, 490 (or 34 percent) of the lines are enrolled
in the enhanced Lifeline program that makes local service available for
$1 per month.
Not surprisingly, subscribership grew. In eight years, it has
increased from 50 percent to nearly 85 percent and continues to grow.
Under current FCC rules, if a competitor now decides to file for ETC
designation, that competitor will jeopardize the viability of Project's
service improvements on the Crow Reservation. Nonetheless, a competitor
that meets all of the legal requirements for designation has the right
to be designated. We simply believe that the decision-maker should be
the state commission that knows the difference between the service that
existed before and the service that exists today.
I have tremendous admiration and respect for people I have met at
the FCC. There is a lot of brain power over there and their intentions
are good. But they cannot fully appreciate the local circumstances in
communities 2,500 miles away, and their investigative processes are not
designed to allow them to do so.
Thank you again for giving me this opportunity to present my views.
I would be happy to respond to questions.
Senator Campbell. Thank you. We will now go to Mr. Stanton.
STATEMENT OF JOHN STANTON, CHAIRMAN/CEO,
WESTERN WIRELESS CORPORATION
Mr. Stanton. Thank you, Senator. My name is John Stanton. I
am the chairman and chief executive of actually three
businesses in the wireless industry, and I originally founded a
fourth business. I helped found McCaw Cellular Communications,
which is now owned by AT&T Wireless, in the early 1980's. I
started a business called Western Wireless, which services 1.1
million customers, almost entirely in the rural United States.
Our subsidiary, Western Wireless International, operates in 10
countries outside the United States, ranging from Haiti and
Ghana and Cote D'Ivoire to Ireland and Austria, and I founded
Voice Stream Wireless, and am still chairman of that company,
which was sold to Deutche Telekom last year.
The purpose of my testimony is to answer the question as to
why on certain indian reservations the tribal members suffer
with teledensity rates, or the rates of telecommunication
penetration, below those in many Third World countries. The
answer to the question as to how to improve service is clearly
wireless, as both Senator McCain and Senator Burns suggested,
but in many cases that is not available simply because the
system today is broken. The system is broken in the that there
are legal and regulatory barriers that bar competition from
entering and providing services on tribal land. I urge you
today to fix the system.
My detailed testimony goes through many of the specific
concerns that we have, but I would like to use two examples to
tell you what good can happen and what challenges we have
faced. In representing our Western Wireless business on a panel
chaired by Senator Daschle 2\1/2\ years ago, I had the
opportunity to discuss, or maybe more accurately debate with
the general manager of the telephone company servicing the Pine
Ridge Indian Reservation, the quality of telecommunications
service. In that hearing, the general manager of Golden West
indicated that only 25 percent of the population of the Pine
Ridge had telecommunications service because in his view, that
was all that wanted telecommunications service. He indicated
because the population was poor, because they spoke Native
languages, and/or because they were aged, that they did not
want telecommunications services. I frankly did not believe it
and did not agree with him.
The answer, we believed, was competition, and after an
extensive legal process that took us to the State supreme court
in South Dakota twice, took us to Federal court, and eventually
to the FCC, we were able to get authority to provide
telecommunications services on the Pine Ridge.
We launched service about 18 months ago. Today, we serve
more customers than that telephone company that has been there
for about 50 years. We provide service to over 4,000 residents
of the Pine Ridge. We have provided access to
telecommunications services to every member and are actively
growing our business today. We created jobs through a joint
venture agreement with the Oglala Sioux Tribe. We created
access to emergency and public services to every tribal member,
and we are providing high speed data services on tribal lands.
The second example was an example of the frustration
associated with jurisdiction. The Goshute Tribe is located on
the Nevada and Utah State border. We have had a terrible
challenge in trying to be able to provide service. The State of
Nevada granted us Eligible Telecommunications Carrier
authority, but failed to provide universal service funding
authority. The State of Utah, where most of the Goshute
population is located, failed to even grant us Eligible
Telecommunications Carrier status. We have gone through a
series of processes and attempted to be able to provide
service, but frankly, Senator, radio waves do not respect State
boundaries. It is essential for us to be able to provide
service for the FTC to act, and frankly Senator, in many cases
the FCC has been slow to act.
The challenge for us is broader. The 1996 Act, as both
Senator McCain and Senator Burns referred to, was intended to
bring competition to telecommunications, and it clearly
succeeded in general in the wireless industry. Our industry has
grown dramatically since the passage of the act. In 1997, the
amendment to the Act that Senator McCain referred to was
intended to clarify that tribal lands should be subject to FCC
authority, but the act and the process that is created by the
Act frankly have stifled rather than encouraged competition.
The distinction between rural and nonrural designated
areas, where the people with the greatest needs in rural areas
have a greater administrative burden imposed on the carriers
attempting to provide them with service, has slowed the
introduction of service. States were made responsible for
designating eligible telecommunications carriers and States
have been slow to act. My company has spent millions of dollars
attempting to litigate over a 4-year period in 14 States. There
are some States that have still not acted on our petitions to
be granted eligible telecommunications carrier status.
The FCC has also not acted. We have a petition in Mr.
Strand's area in the Crow Indian Reservation that has been
pending before the FCC for over 2 years. The FCC only acted in
the Pine Ridge case where we went through a State supreme court
process and got an agreement with the tribal authorities to
provide service. Only then were we able to sign a treaty just
about 2 years ago.
We have been further challenged in the States by the
manipulation of the process by independent telephone companies.
The application for eligible telecommunications carrier status
is a relatively simple application, and yet in Montana Mr.
Strand's organization filed 465 interrogatories against our
application. As one of our lawyers put it, it was ``death by
1,000 paper cuts.''
The challenge for us has been that we have a need to be
able to act quickly in order to get a fair return on our
investment, and the delay in being authorized as a carrier has
delayed the ability for us to implement our services, increased
the cost, and frankly made it a more challenging economic
proposition. Several States have not created universal service
funds which are necessary, as has been described by all the
witnesses, in order to overcome some of the economic challenges
in certain tribal areas.
Ironically, the telecommunications accounting system even
makes it more difficult for tribal areas. The way the telephone
accounting allocates costs between long distance and local
jurisdictions creates an economic incentive for telephone
companies to create very small areas, perpetuating the
isolation of tribal lands because the independent telephone
companies are incited to create a local service area that only
includes the tribal areas and charge long distance in many
cases for calling to larger cities.
Lastly, I would like to comment on some solutions that I
would encourage the Congress to consider. First, to clarify
jurisdiction for Indian country under section 214(e)(6) of the
act--that is, the provisions that were amended in 1997, and the
FCC has indicated in some conversations with us that there are
difficulties, there is a lack of clarity that covers Indian
Country.
Second, encourage the FCC to act promptly on Indian
reservation eligible telecommunications carriers status. As I
indicated, in certain cases we have had an application on the
Crow Reservation pending for over 2 years before the FCC.
Third, to take steps to ensure that the support and subsidy
systems for telephone companies are open and nondiscriminatory.
Fourth, to require the States to implement competitively
neutral universal service policies which ensure that wireless
services can compete effectively and fairly against wire
services.
Our company is deeply committed to providing services on
tribal lands. We do it both because it is the right thing, and
because we think it is a good economic proposition for carriers
to come in and compete.
Competition represents the opportunity to offer choices to
members of tribal communities, the ability to choose between
competing carriers. In our experience on the Pine Ridge, the
quality of service provided by the independent telephone
company, our wired competitor, has actually improved as a
result of the introduction of competition. Competition brings
the benefit to consumers, and it brings the benefits to the
entire community, and we would encourage you to take steps to
allow that competition.
Thank you.
[The prepared statement of Mr. Stanton follows:]
Prepared Statement of John Stanton, Chairman/CEO,
Western Wireless Corporation
Introduction
Mr. Chairman and members of the Committees, I commend you and your
colleagues for convening this joint hearing to examine the critically
important issue of how best to improve telecommunications service to
individuals residing on tribal lands in America. I especially
appreciate the opportunity to address a subject that is not only of
great interest to these committees, but also a subject that is at the
core of the business mission of my company, Western Wireless
Corporation.
As we sit here today, more than three thousand members of the
Oglala Sioux Tribe on the Pine Ridge Indian Reservation in South Dakota
have telephone service, including access to emergency 911 services, in
their homes for the very first time because of a unique cooperative
arrangement between Western Wireless and the Oglala Sioux Tribe, which
can be replicated in other areas of the country only if action is taken
to eliminate barriers to universal availability of telecommunications
services. In this testimony, I identify the successes and challenges
associated with the current system in place to provide universal
service to all Americans and what steps need to be taken to allow all
individuals residing in rural America, including Native Americans, to
enjoy the benefits of access to basic and advanced telecommunications
services.
Background
Western Wireless has built a successful business providing wireless
telecommunications services in rural America. The company holds
cellular licenses to provide service in 19 western states, which
include more than 85 Indian reservations and Native American
communities. The Company is the second largest wireless carrier in the
country based upon geography served with its cellular licenses covering
about 25 percent of the land in the continental U.S. With a service
area that has an average population density of approximately eleven
people per square mile, Western Wireless serves many areas that do not
have access to basic telephone service, much less advanced
telecommunications services.
Western Wireless has a long history of providing service to
unserved and underserved consumers. In 1994, through a unique
arrangement with the Nevada Public Utilities Commission and the
incumbent local exchange carrier, Western Wireless began providing
wireless local loop service to small businesses and residential
consumers in a remote area of Nevada that did not have access to
wireline local telephone service. In 1999, Western Wireless began
offering wireless local loop service in Senator Dorgan's hometown of
Regent, a community of less than 300 people, which represented one of
the first competitive local telephone service offerings in rural
America and made available new and innovative services to consumers.
More recently, Western Wireless has introduced competitive universal
service offerings in more than 140 rural communities in Minnesota,
Nevada, Kansas, Texas, and the Pine Ridge Reservation in South Dakota.
Indian Initiatives: The Success
Recognizing that many American Indian people living on federal
trust land (reservations) and in tribal communities lack access to
basic telecommunications services, Western Wireless has undertaken
several initiatives to bridge the telecommunications divide and ``make
available . . . to all the people of the United States, without
discrimination on the basis of race, color, religion, national origin,
or sex, a rapid, efficient, Nation-wide, and world-wide wire and radio
communication service'' as required by the Communications Act of 1934,
as amended. Specifically, in August 2001, Western Wireless entered into
a historic agreement called Tate Woglaka (Talking Wind) with the Oglala
Sioux Tribe on the Pine Ridge reservation. The purpose of Tate Woglaka
agreement was to build a state-of-the-art telecommunication
infrastructure necessary for economic and social development.
Western Wireless is very proud of our efforts to provide
telecommunications service on tribal lands, and, most particularly, on
Pine Ridge. As Senator Johnson knows so well, this is a very rural,
economically depressed area lacking many of the basic necessities of
life, including affordable telecommunications services. In fact, the
Census Bureau identifies Shannon County consistently as the one of the
poorest counties in America.
Our success on Pine Ridge can be attributed, in part, to the
relationship developed between Western Wireless and the Oglala Sioux
Tribe. In 1999, we responded to a devastating tornado that hit the town
of Oglala on the reservation by providing emergency cellular service to
emergency workers and tribal officials. When it became apparent that
there was a need for basic telephone service on the reservations, we
negotiated the Tate Woglaka service agreement. The agreement was signed
in late 2000, and the Indian Affairs Committee was so gracious to host
the ceremonial signing of that document in December 2000.
The highlights of the agreement include:
A sharing of rights and obligations related to operations,
sales, and maintenance;
Cooperation between the tribe and Western Wireless on
customer service offerings;
$1 monthly rate plan for Lifeline eligible residents;
An expanded local calling area that eliminates all toll
charges previously associated with making certain calls on the
reservation and to Rapid City;
Access to a local Emergency Service Provider on the
Reservation;
Long distance service, prepaid services, and enhanced
services;
Access to advanced telecommunications services capabilities;
and
24-hour customer service.
Earlier this year, Western Wireless completed the expansion of the
telecommunications network on the Oglala Sioux reservation, providing
tribal members with access to wireless telephone service for the first
time.
Our Oglala Sioux Pine Ridge offering speaks louder than words:
There are approximately 4,000 total tribal households with a
total tribal population of around 40,000;
To date, Western Wireless has more than 3,500 customers on
Pine Ridge, representing a significant market penetration in
the short time our network has been operational on the
reservation; and
Of the 3,500 customers that we serve, approximately 75
percent did not have landline telephone service prior to
signing up for service from Western Wireless.
Western Wireless is also working with numerous other tribes on
replicating its successful service offering on the Pine Ridge
reservation, but faces certain challenges that must be overcome before
other tribes can enjoy the benefits of access to a competitive choice
for the telecommunications needs.
Indian Initiatives: The Challenges
As difficult as it is to resolve the business issues related to
providing service on reservations, the biggest challenges to bridging
the telephone and digital divide on reservations are the regulatory
issues, both in terms of market entry and a level playing field.
Market Entry. Section 214(e)(2) of the Communications Act provides
that state commissions shall review applications by common carriers for
designation as an Eligible Telecommunications Carrier (``ETC'') for
purposes of universal service support, and Section 214(e)(6) of the Act
provides that the FCC shall review applications by common carriers not
subject to the jurisdiction of a state commission for designation as an
ETC for purposes of universal service support. For our Pine Ridge
offering, Western Wireless filed an ETC application with the FCC under
Section 214(e)(6) based upon the tribe's view that our service offering
on the reservation is not subject to state commission jurisdiction and
that Western Wireless' designated service area would be primarily
limited to the reservation (as opposed to the entire study area of the
incumbent local exchange carrier). The Oglala Sioux Tribal Council
formally supported our application. The South Dakota state commission
and Incumbent Local Exchange Carriers (ILECs) opposed the application
on jurisdictional grounds. The state commission and the ILECs argued
that the state, not the FCC, had the authority to consider Western
Wireless's application under Section 214(e)(2). At the same time, the
state commission was defending in the courts and at the FCC its
decision to deny our state ETC application for non-tribal lands (the
state Supreme Court and the FCC ultimately reversed the state
commission's denial of ETC status to Western Wireless).
The FCC ultimately assumed jurisdiction over our Pine Ridge
application and granted ETC status to Western Wireless for the
reservation. Our application, however, reveals a problem that needs to
be resolved: jurisdictional uncertainty, procedural wrangling, and
legal maneuvering hamper the ETC application process that effectively
denies service to rural consumers.
Although the FCC ultimately resolved the issues and granted ETC to
Western Wireless, the tortuous application process has no doubt
``chilled'' competitive carriers' interest in serving reservations.
The Goshute reservation in Nevada and Utah, and the Winnebago
reservation in Nebraska, highlights some of the problems with state
action on ETC applications aimed at serving Indian reservations.
The Goshute reservation is located in both Nevada and Utah.
Early last year, the Goshute tribe declared a
telecommunications emergency due to the lack of access to basic
telephone service, including emergency 911 service.
Western Wireless applied for ETC status in rural areas of
Utah and Nevada, including reservations, with the state
commissions under Section 214(e)(2)--Nevada granted Western
Wireless' request and Utah denied Western Wireless' request,
resulting in the Company being an ETC in the Nevada portion of
the Goshute reservation but not the Utah portion of the
reservation.
Western Wireless could have filed for ETC status under
Section 214(e)(6) with the FCC, but the process would be
lengthy, costly, and quite possibly litigious because of the
uncertainty of whether the FCC has jurisdiction and the strong
opposition from many states and ILECs.
In Nebraska, the situation is different, but the result is the
same.
The Winnebago tribe has been ``held hostage'' to the delays
by the Nebraska Commission in approving Western Wireless' ETC
application for rural areas of the state.
The application has been pending since August 1998.
After 3 years, the Commission granted Western Wireless ETC
status, but has held up approval of what should be pro forma
approval of an Advertising Plan.
To create a process that simply recognizes tribal sovereignty and
allows the tribes to benefit from telecommunication service offerings
that meet their needs, the following steps need to be considered by
Congress:
Establish Section 214(e)(6) as the clear vehicle for common
carriers to file applications at the FCC for ETC status on
reservations;
Impose a 6 month deadline for action on ETC applications;
and
Eliminate the public interest determination if the tribal
government supports the grant of ETC status.
Level Playing Field. It has been a national policy since 1934 to
make available to all Americans, regardless of the location of their
residence, affordable telecommunications services. In too many cases,
rural areas have been effectively excluded from the benefits of a
competitive telecommunications market because incumbent local telephone
companies have historically monopolized access to universal service
support necessary to provide affordable telecommunications services in
these rural, high-cost areas. For example, the cost of providing
telephone service in many rural areas exceeds $100.00 per line per
month, and yet consumers pay as little as $10.00 or less per month,
with universal service funding making up the difference. Clearly, a
competitive carrier that does not have access to universal service
funds would not choose to enter the local market and compete with
incumbent carriers who do have access.
The FCC's pro-competitive universal service policies, adopted
pursuant to the Telecommunications Act of 1996 (``1996 Act''), are
beginning to have a significant impact in enabling consumers in rural
and high-cost areas to realize the benefits of local competition. These
benefits include more competitive pricing structures for
telecommunications services, more responsive service providers spurred
by competition, and more rapid deployment of new technologies and
service packages. Aided by federal universal service policies that are
consistent with competitive entry into local telephone markets,
competitive carriers are developing new ways of providing basic
telephone service, and are making progress in serving historically
underserved and hard-to-reach markets.
Four years ago, Western Wireless embarked upon an effort to bring
the benefits of competition to the local telephone market in rural and
tribal America. The centerpiece of this effort has been the Company's
petitions, pursuant to Section 214(e), for designation as an ETC for
purposes of universal service support, which is necessary to provide
affordable telecommunications services in many rural, high-cost areas.
To date, Western Wireless has been designated as an ETC in 14 states
and on the Pine Ridge Reservation and is working with the FCC and state
commissions on furthering the goals of universal service.
These inroads have not come without a high cost, however. While the
ILECs were summarily designated ETCs for participation in federal
universal service programs, new entrants seeking to serve high-cost and
rural areas often face costly, extensive, and protracted proceedings
for ETC status. In addition, in states with their own universal service
support programs, it is often difficult, and sometime impossible, to
gain access to funds set aside for incumbent local exchange carriers.
The 1996 Act mandates the elimination of the historical barriers to
local competition in rural areas by requiring the FCC and state
commissions to open the universal service market to competitive entry.
It has been six years since Congress passed the Act, and many tribal
and rural consumers still await the promised benefits. Simply put, many
state commissions have not followed the FCC's lead in changing to a
competitive universal service system, which I believe is critical to
closing of the ``digital divide'' in tribal and rural America.
What steps can Congress take to create a level playing field for
all service providers in the universal service market?
First, Congress should impose a 180-day deadline for state
commission action on ETC applications. Congress has imposed a similar
deadline for state commission action in interconnection arbitration
proceedings. The FCC has sought comment on whether to impose a 180-day
deadline for state commission action on ETC applications, but is facing
strong opposition from state commissions and is unlikely to take action
on this proposal. Expeditious action on ETC designations will
facilitate new service offerings on reservations, and will also have
the salutary benefit of qualifying the tribal customers for the two
components of the FCC's Low-Income program: Lifeline and LinkUp.
Although Lifeline and LinkUp are available to all qualifying low-income
consumers, the FCC's enhanced Lifeline and LinkUp programs provide
special additional discounts to qualifying subscribers living on tribal
lands. The enhanced Lifeline program for qualified subscribers on
Native American Indian and Alaska Native tribal communities gives
federal discounts of up to $30.25 off monthly telephone bills.
Additional discounts are sometimes available under state Lifeline
programs. As a result, depending on current rates, many eligible
subscribers on tribal lands are eligible to receive basic local phone
service for $1 per month. All of Western Wireless' Pine Ridge Lifeline
customers receive service at $1 per month, which, together with an
attractive service offering, has greatly increased telephone
penetration rates on the reservation. The enhanced LinkUp program for
qualified subscribers on Native American Indian and Alaska Native
tribal communities also offsets up to $100 for installation costs.
Second, Congress should encourage and enable the FCC to ensure that
(i) states establish competitively and technologically neutral rules
and procedures for designating common carriers as ETC for purposes of
state and federal universal service support, (ii) states establish
explicit, portable, and competitively-neutral universal service funding
mechanisms free of implicit subsidies that have the effect of
entrenching the incumbent carriers in the universal service market, and
(iii) funds are available to cost-effectively provide service in high-
cost areas. The Tenth Circuit Court of Appeal's remand, in Qwest Corp.
v. FCC, of the Federal-State Joint Board on Universal Service, Ninth
Report and Order, presents an ideal opportunity for the FCC to re-
examine universal service reform to identify ``uneconomical attributes
of the current system that dampen competitive opportunity,'' with an
eye toward remedying ``shortcomings in the current system that
``undermine economic competition and new entry.'' Among the most vital
steps in this process will be, at long last, creating ``inducements''
for state commissions to adopt rules and policies that work in
conjunction with federal efforts to preserve and advance universal
service in a competitive environment, consistent with the 1996 Act and
the Tenth Circuit remand decision. The adoption of explicit rules is
critical, in that new entrants should not have to resort (as has been
the case to date) to piecemeal FCC oversight of individual state ETC
designations and universal service programs. Such FCC proceedings are
themselves costly and time-consuming, and new entrants must bear the
burden of demonstrating the need to preempt state action pursuant to
Section 253 of the Act.
Spectrum Management: The Key to Unlocking New Services
It should not be overlooked that as the new Internet economy moves
from wired to wireless, the need for the development of a long-term
spectrum allocation plan is vital if your constituents and our
customers are to see the benefits of this new economy. The Congress,
the FCC, the Administration, and industry must continue to work
together to develop a roadmap for a comprehensive spectrum allocation
policy that (1) is market driven, (2) is open to the greatest number of
participants, (3) considers industry's additional spectrum requirements
to provide innovative advanced services to consumers at home and
abroad, and (4) encourages continued competition in the wireless
industry and equal footing in international markets. In the long run,
this market-based approach will be better for the U.S. economy, better
for consumers, and better for American taxpayers. The wireless industry
is working with congressional and Administration leaders to promote
economic growth in the short-term by providing a pathway to spectrum
for a high-tech growth industry that enables it to compete in the
global marketplace--recognizing at the same time that national security
interests benefit from a comprehensive, spectrum management plan.
Conclusion
Competition holds the key to the deployment of high quality
telecommunications services--regardless of where it is offered.
Government should ensure a level playing field through the
establishment of a competitive universal service system, a
comprehensive spectrum allocation policy, a fair and responsive
competitive bidding process, reasonable tower siting policies,
reasonable incentives and funding to provide advanced services in rural
America, and strong enforcement action against anti-competitive
behavior by incumbent carriers. In so doing, the goals of the
Telecommunications Act of 1996 will be fulfilled and the ``digital
divide'' will be eliminated.
______
The Western Wireless Story
Western Wireless' entry into the local telecommunications market
reflects a building block approach to the provisioning of advanced
telecommunications services in rural America. Today, Western Wireless
provides service (d.b.a. Cellular One) throughout the more than 140
rural service areas and small metro areas licensed to the Company
covering approximately 25 percent of the geography of continental
United States. The Company has expanded its service offerings to
include residential phone service (RPS) in rural areas by using its
existing cellular network infrastructure, including switching, high-
bandwidth network facilities, cell sites, and wireless local loops
(WLL), to provide new and innovative local telephone services,
including universal telephone service, to consumers. The expansion of
its service offerings in rural areas to provide WLL and universal
service enables Western Wireless to offer consumers advanced
telecommunications services, including high-speed data services, using
3rd generation cellular technology.
Wireless (Cellular) Telephony Service Provider
Rural service provider in 19 western states (AK, AZ, CA, CO,
ID, IA, KS, MN, MO, MT, NE, NV, NM, ND, OK, SD, TX, UT, WY)
(http://www.wwireless.com).
State-of-the-art telecommunications infrastructure in rural
areas.
Planned deployment of 2.5 generation and 3rd generation
technology capable of delivering advanced telecommunications
services, including high-speed data services.
Universal Service & Wireless Local Loop Provider
ETC status granted in 14 states (CA, CO, IA, KS, MN, NE, NM,
NV, ND, OK, SD, TX, UT, WY) and one Indian Reservation (Pine
Ridge in South Dakota).
Serving over 140 markets in 5 states (KS, MN, NV, TX, Pine
Ridge), with thousands of universal service customers.
Industry leader in the deployment of wireless local loop
service in rural America.
Sole provider of local telephone service to the residents of
many rural areas.
Senator Campbell. Mr. Day.
STATEMENT OF WILLIAM DAY, CHAIRMAN, CULTURE AND HERITAGE
COMMITTEE, UNITED SOUTH AND EASTERN TRIBES
Mr. Day. Thank you, sir. Mr. Chairman, I am very encouraged
to hear all of this very positive effort to bring many of our
people into this century. However, sir, I have to digress from
all of this good talk that has occurred, and talk about
something that is occurring that I think will probably shock
some people in this room.
I first got to know you and Senator Dale Bumpers and of
course I already knew Bennett Johnson and Lowell Weicker back
in 1991, 1992, when the amendments to the National Historic
Preservation Act were being passed at your hand.
Unfortunately, your work has been thwarted, grossly
thwarted by the Federal Communications Commission and its
allies. We have been taken advantage of, not with Government to
Government relationship from the FCC, or recognition of the
trust responsibility that exists with the FCC, or the issue of
sovereignty, which I have heard you, Senator, speak on many
times at conferences, and the importance of that very word, and
its 500-year history in this country.
The FCC has taken it upon themselves to tell individual
private companies, commercial enterprises, that they have been
delegated the authority to consult with Tribes. There is
absolutely nothing whatsoever in Federal law that permits that.
There is nothing in the advisory council regulations on section
106 that permits that. As a matter of fact, in the preamble it
expressly prohibits that, but that is what has happened. There
are 800--that is just this year's--demands by these private
companies that we provide them at our cost, and the usurpation
of our staff and our finances, to accommodate what they need to
satisfy section 106 without any compensation or even thank you
to the Tribes.
I represent here at this meeting the United South and
Eastern Tribes, 24 Tribes from Maine to Texas. Specifically I
represent the Poarch Creek in Alabama. This is Poarch Creek
letters, 688 of these demands on their time and staff from
these private enterprises, authorized by the FCC to do this and
impose upon us a burden, both financial and personnel-wise,
that if it were property would amount to a constitutional
question of a taking. Now, it is an unfunded mandate, and they
have no right whatsoever to do that.
There is also no reason whatsoever on earth that I would
share with this company that I have no idea who these people
are, what they want here, our religious sites, our sacred
sites. They want to know that. We cannot do that. We can do it
with a Federal agency, where the law will apply, but the
Federal law does not apply to them, and the exemptions that
exist under the Freedom of Information Act that we can rely on
with an agency does not exist here. These are people with a
commercial bent, whatsoever, and I guarantee you I congratulate
these people who want to serve the rural communities, and do
not forget, we have got an awful lot of woods in Maine as well,
so you know, there are some people up there that do not have
telephones.
But one of the earliest, one of the very earliest reactions
to this is from your neighbor that spoke, who are saying, how
do you, the FCC, come off doing this to us? There is nothing in
the law that says this, that you can permit these people to
impose themselves on our time and our finances to serve their
gain. This is what is going on, Senator, and what is going on
is that no one, to our knowledge, is following up on whether
these people have actually abided by section 106 of the
National Historic Preservation Act. We cannot determine that,
and as a result, what is happening when these people tell us
that if we do not answer them within 30 days, they will
proceed. There are even letters in here saying if I do not
answer them in 10 days they will proceed, at my expense, of
course.
Now, I cannot possibly research something like this, with
1,000 of these. How many people do I need on my staff? How many
do you have on your staff that are going to read all of these?
Because I certainly do wish to make these part of the record,
for your own delight, of course.
You know, it takes a while just to read one of these
things, but I am not required by any law that I know of, moral,
ethical, or legal, to even open these people's letters. They
have no call on the sovereignty of a federally recognized
Indian Tribe, but yet this agency would allow them with their
leave to cross our borders, so to speak, and impose themselves
upon us, and this is going on every day. It goes on in every
State of this Union, and it certainly is true here in the South
and the East.
Every Tribe of the USET Tribes have received thousands of
these demands from these outside people that we know nothing
about. They are even in here, sir, a photograph of the base and
the anchors put in the ground by a phone company and then
saying, we are going to go do a survey. Well, I mean, it is a
little late on that, you know. We have got another one over
here that says, we are not archaeologists, but we walked over
the ground and did not see anything, so therefore there is
nothing there. This is what is happening to the National
Historic Preservation Act, and to the cultural and historic
heritage of everyone in this country.
And what are they doing about it? We have met with them--
there is one of their lawyers sitting right back there that was
with us here in February at our conference, and we asked, ``do
you understand what we are saying?'' There were six of them
sitting there. ``Do you understand what we are trying to do, do
you understand what we are saying?'' ``Uh-huh.'' But apparently
not.
We also, Senator, spent 8 months of our time--I made six
trips to Washington, D.C. to meet with representatives of PCIA,
the public--one of their cell phone company associations, to
work out a programmatic agreement of protocol, how we could
handle this thing equitably and timely to everyone. We were
taken advantage of. We met in good faith, an attorney back
here, Bennett Johnson associate, Gregg Smith and others, sat
down with these people and wrote and wrote and wrote, and back
and forth, an agreement, and then when it was finally sent to
them for their signature, they said well, we are not really
interested anymore. But in the meantime they went about
building their towers while we held back trying to attempt to
work with these people.
Now, we have come forward, we have said, we cannot justify
in any manner whatsoever the expenditure of tribal funds and
the expenditure of tribal personnel to answer these people's
problems, and we also would like to know how it is that they
come off saying that the FCC has given them, has delegated to
them the ability to conduct Government to Government
consultation with a federally recognized Tribe. You have no
such authority whatsoever, none.
It does say that it can to a THPO, but let me define Tribal
historic preservation officer. I happen to be the first one
recognized in this country under section 101(d)(2). That
exists, according to the advisory council's own definition of
Indian land, within the exterior boundaries of a reservation
and no place else, and so when they say we are giving it to the
THPOs, they have assumed that Tribal historic preservation
officer is something that exists outside the boundaries. It
does not. You are then dealing with the Tribe again, and again
you cannot delegate that, and so these are totally illegal. If
you have licensed these, then you have done so not in
recognition of the law and your responsibility, and we ask
relief from it, sir. We ask relief just from somebody having to
spend half a day opening these pieces of mail.
And we have offered, we have gone the full measure to try
and work agreements with these people that we would be
adequately compensated for using our resources to answer their
questions. We have not attempted to bleed them dry, so to
speak. We felt that a reasonable fee, we used the fee of $300,
to research what they needed, to take the time, put somebody on
this to answer these questions, was not unreasonable,
particularly in light of the fact that last year I saw an ad in
the New York Times, a full page ad. It was nothing but a cell
phone tower. In big, 52-point type outside on the side of it
said, ``This is not a tower. This is a money tree.'' And that
being the case, we would like a leaf or two off of it for our
trouble. We do not think that is too much to ask, and we also
ask please, that somebody in the Federal Communications
Commission give more than lip service to the concept of
Government to Government relationship, and sovereignty, and
your responsibility of trust.
Thank you, sir.
[The prepared statement of Mr. Day follows:]
Prepared Statement of William Day, Chairman, Culture and Heritage
Committee, United South and Eastern Tribes
I. Introduction
Thank you, Mr. Chairman and Members of the Senate Committee on
Indian Affairs and the Communications Subcommittee of the Senate
Committee on Commerce, Science and Transportation for this opportunity
to testify regarding telecom carriers, tribal governments and the
siting of communication towers. My name is William Day. I am Chairman
of the Culture and Heritage Committee of the United South and Eastern
Tribes, Inc., an inter-tribal organization consisting of 24 tribes from
Maine to Texas. I am also the Tribal Historic Preservation Officer for
the Poarch Creek Indians and the Jena Choctaw, as well as the Native
American Affairs coordinator for the Louisiana, Mississippi and
Oklahoma National Guard. I was deeply involved in the development of
the current regulations for the National Historic Preservation Act, as
well as the Army Alternative Procedures for Section 106, the tribal
consultation process.
I would like to address my comments specifically to the failure of
the FCC to comply with Federal law when it comes to consulting with
tribal governments before cell towers are constructed, the questionable
legality of the FCC's purported delegation of its tribal governmental
consultation obligations to private entities (the cell tower
companies), and the appropriateness of tribe's charging fees of cell
tower companies when those companies seek unique tribal expertise in
evaluating tower sites in order to comply with a host of laws including
the National Historic Preservation Act (NHPA) and the National
Environmental Policy Act (NEPA).
This has been an area of great frustration for Indian tribes and
for tribal historic preservation officers. Despite federally mandated
consultation requirements, literally tens of thousands of cell towers
have been constructed across the United States with virtually no effort
by the FCC to consult with tribes. A number of these towers have had an
adverse impact on sites of religious and cultural importance to Tribes.
In a belated attempt to make up for past errors, the FCC has stated
that it has delegated its consultation obligations to the cell tower
companies, who are now sending letters to tribes demanding information,
some of it very sensitive in nature, and asserting that if the
information is not provided within a certain timeframe, usually 10 to
30 days, as one typical letter to the Chitimacha Tribe of Louisiana put
it, ``[w]e will presume that a lack of response from the Chitimacha
Tribe of Louisiana to this letter will indicate that the Chitimacha
Tribe of Louisiana has concluded that the particular project is not
likely to affect sacred tribal resources.'' In the last year, many
tribes have received hundreds, and even thousands of these letters. To
add insult to injury, the letters frequently refer to the tribes as
``organizations'' or ``groups'' demonstrating disrespect for tribal
sovereignty, ignorance of the status of tribes and their unique legal
rights, and generally conveying an impression that these companies do
not care about tribal views.
Despite the onerous workload involved in responding to these
letters, the cell tower companies, which stand to make great profits
from these towers, have with few exceptions, been unwilling to pay fees
to cover tribal costs. These exceptions are worth noting, as they
demonstrate that it is both possible and practical to establish a
process involving tribes and cell tower companies which addresses
tribal concerns, meets the economic needs of the cell tower companies,
and preserve the consultation obligation of the FCC. For example, the
Seminole Tribe of Florida has developed a professional relationship
with a number of cell tower companies whereby for appropriate fees, the
Seminole Tribe is able to respond in a timely manner to the requests of
those companies. The process works smoothly in great part because the
companies know, in advance, exactly what kind of information the Tribe
needs to be able to respond. Similarly, the Narragansett Tribe has
worked out an effective process with cell tower companies in Rhode
Island, but has met with opposition from cell tower companies in
Massachusetts and Connecticut. The success stories are the exception.
By and large, cell tower companies need tribal expertise to properly
evaluate commercial cell tower sites, but have refused to pay for that
expertise. The FCC has an independent obligation to consult with
tribes, but has refused to enter into consultation, pawning off that
responsibility to the cell tower companies. Meanwhile the tribes, who
are generally financially strapped, fear the continuing loss, damage or
destruction of tribal cultural properties as communications towers
proliferate.\1\
In an effort to work with the communications industry, the United
South and Eastern Tribes reached out last year to industry trade
organizations. With one exception, the Personal Communications Industry
Association (PCIA), USET was rebuffed. At considerable expense, USET
entered into detailed negotiations with PCIA over establishing a
process for handling this issue. From the tribal perspective, we worked
hard to find pragmatic solutions, while still assuring respect for
tribal sovereignty and maintaining the FCC's ultimate consultation
responsibility. Based on the negotiations, USET developed and sent to
PCIA a detailed proposal for establishing a set of protocols, which I
have attached.\2\ We waited many months for a response, and then were
told that PCIA had no further interest in these negotiations.\3\
The letter and spirit of such laws as the National Historic
Preservation Act have been ignored, and continue to be ignored. The
agency principally responsible for this state of affairs is the Federal
Communications Commission. Although the FCC has made a few timid
efforts in the last year to address these issues I, for one, see little
actual progress. As an example, I have attached to my testimony an
email I received from the Tribal Historic Preservation Officer for the
Mississippi Band of Choctaw Indians, Ken Carleton. In his email he
noted that the Mississippi Band had received ``a minimum of about 400-
500 requests'' from cell tower companies, many providing virtually no
information on the location of the sites or maps, but all with at least
a check off saying that there are no sites of religious or cultural
importance to the tribe to make it easy to ``rubber stamp their
requests!'' See Attachment C. Mr. Carleton's email goes on to describe
in some detail his experience with an FCC-sponsored Telecommunications
Working Group in which he responded to a Public Notice issued by the
FCC for tribal input, a notice which was never sent to the tribes to
the best of my knowledge despite the fact that we have complained
repeatedly to the FCC in the last year about its lack of contact and
consultation with tribes. Mr. Carleton describes the lack of regard for
his views on the Programmatic Agreement that was under discussion (by
the time he received a draft copy it was already draft number 9 or 10).
He has since learned that the draft agreement will likely be submitted
to the Advisory Council for Historic Preservation for approval at its
June 2002 Meeting, despite the fact that there has been virtually no
tribal input. This level of disregard for tribal views is,
unfortunately, all too common.\4\ It is also a violation of federal
law, the trust responsibility, and the government-to-government
relationship between the United States and Indian tribes.
The FCC has consistently disregarded and denigrated Tribal views.
Last year, the FCC advocated, and the Advisory Council on Historic
Preservation adopted an antenna co-location agreement for existing cell
towers with little regard for tribal views. Notably, former FCC
Commissioner Tristani was quoted in the March 19, 2001 issue of
Communications Daily as expressing concern that the agreement fell
short of the FCC's obligation to facilitate tribal consultation. She
stated that ``[t]he overwhelming majority [of tribal comments] told us
our approach is not working. This response is prima facie evidence that
our understanding of tribal consultation is misguided.'' The Tribes
could not have said it better themselves.
As sovereign nations, Tribes have an inherent right and
responsibility to protect and promote the welfare of their people,
which includes the right to protect their cultural and religious
properties and the right to be treated with respect by Federal
agencies. Federal law acknowledges these rights, but Federal agencies
have been reluctant to comply.
II. Principal Issues of Concern
A. The Federal Communications Commission (FCC) has violated the
tribal consultation requirements of the National Historic Preservation
Act, particularly when it comes to the licensing and siting of
communications towers.
The National Historic Preservation Act (NHPA) provides protection
for ``districts, sites, buildings, structures and objects significant
in American history, architecture, archeology, engineering, and
culture.'' 16 U.S.C. Section 440(f). The NHPA does this by requiring
federal agencies engaged in a ``federal undertaking'' to ``take into
account the effect'' the undertaking may have on historic properties
``included,'' or ``eligible for inclusion'' in the National Register of
Historic Places. Id. The NHPA is implemented through a complex
regulatory scheme (the Section 106 process), a consultation process
through which federal agencies collect information concerning a
particular site's eligibility for the National Register, potential
adverse effects the undertaking may have on the site, and ways to
mitigate adverse effects. See 34 C.F.R. Part 800.
The NHPA has always required consultation with Tribes, but in 1992
it was specifically amended to clarify and mandate such consultation.
The 1992 amendments state that federal agencies ``shall consult with
any Indian tribe and Native Hawaiian organization that attaches
religious or cultural significance'' to properties that might be
affected by a federal undertaking. 16 U.S.C. Section 470a(d)(6)(B)
(emphasis added). The FCC licensing process for cell tower antenna
arrays is a federal undertaking, but the FCC has consistently failed to
consult with Tribes in this process.
The NHPA tribal consultation requirement applies broadly to
traditional religious and cultural properties of Native Americans and
Native Hawaiians, and makes no distinction with respect to tribal
religious or cultural properties located on or off tribal lands. The
law does not provide for delegation of this responsibility to private
entities, such as cell tower companies.
B. The FCC is also in violation of general principles of Federal
Indian law which recognize tribal sovereignty, place tribal-U.S.
relations in a government-to-government framework, and set forth a
Federal trust responsibility to American Indian tribes that applies to
all Federal departments and agencies.
These general principles are rooted in the U.S. Constitution (Art.
I, Section 8), Federal case law, Federal statutes (including the
National Historic Preservation Act, the Native American Graves
Protection and Repatriation Act, the American Indian Religious Freedom
Act, and the Archaeological Resources Protection Act), Executive Orders
(including Executive Order 13007--Indian Sacred Sites, and Executive
Order 13175--Consultation and Coordination with Indian Tribal
Governments), regulations, and case law, as well as in the policy
statement of the Advisory Council on Historic Preservation entitled The
Council's Relationship with Indian Tribes.
(1) Federal Statutory Consultation Obligations with Indian Tribes
on Religious Matters. Congressional Indian policy with respect to
Indian religious matters is set forth in the American Indian Religious
Freedom Act (AIRFA):\5\
``Protection and preservation of traditional religions of
Native Americans
Henceforth it shall be the policy of the United States to
protect and preserve for American Indians their inherent right
of freedom to believe, express, and exercise the traditional
religions of the American Indian, Eskimo, Aleut, and Native
Hawaiians, including but not limited to access to sites, use
and possession of sacred objects, and the freedom to worship
through ceremonials and traditional rites.''
42 U.S.C. Section 1996. AIRFA also requires federal agencies to
consult with Native American traditional religious leaders in order to
evaluate existing policies and procedures and make changes necessary to
preserve Native American cultural practices. Act of Aug. 11, 1978, P.L.
95-341, Section 2. 92 Stat. 470.
There are several other statutes where Congress has set forth a
policy of protecting traditional Indian religion, such as the Native
American Graves Protection and Repatriation Act (NAGPRA),\6\ the
Archaeological Resources Protection Act (ARPA),\7\ and the National
Museum of the American Indian Act (20 U.S.C. Sections 80q to 80q-15).
The consultation requirements of, and legal rights established by,
these statutes are not geographically confined to situations where
cultural or religious objects are found (or activities occur) solely on
tribal lands.
(2) Executive Action. There are also several presidential orders
which mandate Federal consultation with Indian tribes. Executive Order
13007 (May, 24 1996) (hereafter ``Executive Order on Sacred Sites'')
directs federal agencies to provide access to American Indian sacred
sites, to protect the physical integrity of such sites and, where
appropriate, to maintain the confidentiality of these sites. This
Executive Order on Sacred Sites also incorporates a prior Executive
Memorandum issued on April 29, 1994, which directed federal agencies to
establish policies and procedures for dealing with Native American
Tribal Governments on a ``government-to-government basis.''
Executive Order 13175 (Consultation and Coordination with Indian
Tribes, November 6, 2000) directs Federal officials to establish
regular and meaningful consultation and collaboration with tribal
officials in the development of Federal policies that have tribal
implications.
(3) Federal Court Interpretation of Indian-Related Statutes. The
Federal Courts have developed canons of construction that are used to
interpret Indian treaties and statutes relating to Indians. The
fundamental component of these canons of construction is that treaties
and statutes are to be liberally interpreted to accomplish their
protective purposes, with any ambiguities to be resolved in the favor
of the Indian tribes or individual Indians. See Alaska Pacific
Fisheries Co. V. United States, 248 U.S. 78, 89 (1918) (``the general
rule [is] that statutes passed for the benefit of the dependent Indian
tribes or communities are to be liberally construed, doubtful
expressions being resolved in favor of the Indians''); Tulee v.
Washington, 315 U.S. 681, 684-685 (1942); Carpenter v. Shaw, 280 U.S.
363 (1930); McClanahan v. Arizona State Tax Com'n, 411 U.S. 164 (1973).
In this context, the National Historic Preservation Act should be read
broadly to support and protect tribal interests.
There has been an effort from some quarters to cloud the
consultation right by asserting that the tribal right to consultation
is not as strong off tribal lands as on tribal lands. This argument
ignores the fact that Congress, in providing in the National Historic
Preservation Act that federal agencies ``shall consult'' with Indian
tribes regarding their properties of cultural and historic importance,
created no distinction between off and on-reservation sites. It also
ignores the numerous instances where Congress has acted to provide
tribes with jurisdictional and other rights off tribal lands in
conformity with the ``overriding duty of [the] Federal government to
deal fairly with Indians wherever located. . . .'' Morton v. Ruiz, 415
U.S. 199, 236 (1974). One quirk in this legal framework is that the
authority of the Tribal Historic Preservation Officer is a creature of
federal statute (101(d)(2)(3). The federally created Tribal Historic
Preservation Officer arguably only has jurisdiction over tribal lands.
Nonetheless, this limitation does not affect the Tribes' right to be
consulted with regard to tribal cultural and religious properties
located off of tribal lands. A tribe may designate the federally
created Tribal Historic Preservation Officer as the Tribe's
representative for the off-reservation sites.
C. The FCC has unlawfully attempted to delegate its consultation
obligations to the cell tower industry.
The FCC's consultation obligation is an ``inherent Federal'' or
``inherently Governmental'' function that is non-delegable. FCC efforts
to delegate this function to the cell tower companies violate the
principle of separation of powers founded in the Constitution. The U.S.
Constitution provides that ``[t]he executive power shall be vested in a
President of the United States of America,'' and gives the President
the responsibility to ``take care that the Laws be faithfully
executed.'' U.S. Const., art. II, sec. 1, cl. 1; art. II, sec. 3. The
President delegates this power to Federal officers (``Officers of the
United States'') pursuant to the Appointments Clause. U.S. Const., art.
II, sec. 2, cl. 2.
The Federal courts have identified a ``horizontal'' component of
the Appointments Clause that assures that executive power is not
exercised by individuals appointed by, or subservient to, another
branch of government. See Buckley v. Valeo, 424 U.S. 1 (1976) and
Bowsher v. Synar, 478 U.S. 714. The Courts have also identified a
``vertical'' component of the Appointments Clause that protects against
the delegation of Federal authority to private entities outside the
constitutional framework. See Schechter Poultry Corp. v. United States,
295 U.S. 495 (1935) and Northern Pipeline Construction Co. v. Marathon
Pipeline Co., 458 U.S. 50 (1982).
The Executive Branch has further interpreted the ``Vertical''
component of the Appointments Clause in OMB Circular A-76 which states
that certain functions are ``inherently Governmental in nature'' and
therefore can only be performed by Federal employees.\8\ The circular
goes on to specifically identify as governmental functions ``activities
which require either the exercise of discretion in applying Government
authority or the use of value judgment in making decisions for the
Government.'' The circular describes specific examples of the ``act of
governing,'' including ``management of Government programs requiring
value judgments'', the ``regulation of the use of space, oceans,
navigable rivers and other natural resources,'' and the ``conduct of
foreign relations.'' Under each of these bases, as well as the unique
Federal trust responsibility to Indian tribes, the FCC's obligation to
consult with federally recognized sovereign Indian tribes with regard
to federal undertakings that could affect tribal cultural and religious
properties is a non-delegable ``inherent Governmental'' function.
Although the Advisory Council on Historic Preservation has
promulgated regulations that purport to allow limited delegation by an
agency to private entities ``to initiate consultation'' with tribes,
such delegation, on its face, violates the ``vertical'' component of
the separation of powers doctrine. Moreover, even these regulations
require notification to Tribal Historic Preservation Officers of such a
delegation, which the FCC has not done. Contradictorily, and in an
attempt to have their cake and eat it too, the ACHP regulatory process
also provides that agencies that do delegate the initiation of
consultation ``remain responsible for their government-to-government
relationship with Indian tribes.'' It is not possible to delegate this
consultation obligation to private companies and maintain the
government-to-government relationship with a tribe at the same time.
D. The cell tower companies seek information from tribes necessary
to carryout National Historic Preservation Act, NEPA and other
requirements, but have generally been unwilling to pay for that
expertise.
Tribes have a consultation right, but lack the resources to
exercise it. The Federal government has an obligation to protect this
right, but has failed to do so. The cell tower companies, in order to
complete their evaluation of potential cell tower sites, often need the
unique expertise of tribal experts to evaluate the sites but are
generally reluctant to provide compensation which would be standard for
other professionals. In the last year, tribes have been buried in
hundreds and even thousands of letters from cell tower companies
demanding a response, usually within 10 to 30 days. Few, if any tribes,
can afford to put thousands of staff hours into responding to these
letters which only benefit the cell tower companies' commercial
interests. If a tribe does not respond, or seeks compensation for
services rendered to help the cell tower companies, the cell tower
companies move ahead without any regard to tribal interests or rights.
III. Court Decisions under the National Historic Preservation Act.
A review of federal court decisions brought by tribes under Section
106 of the NHPA demonstrates a pattern of non-compliance and an
unwillingness to truly seek tribal input by federal agencies. See e.g.,
Pueblo of Sandia v. United States, 50 F.3d 856 (10th Cir. 1995);
Attakai v. United States, 746 F. Supp. 1395 (D.Ariz. 1990); Colorado
River Indian Tribes v. Marsh, 605 F.Supp. 1425 (C.D. Cal. 1985). These
same cases also demonstrate how important the NHPA is to tribes to
provide some modicum of protection to their sacred and cultural
properties, particularly those properties located off tribal lands.
In Pueblo of Sandia v. United States, 50 F.3d 856 (10th Cir.
1995),\9\ the United States Court of Appeals for the Tenth Circuit held
that the U.S. Forest Service violated section 106 of NHPA by failing to
properly evaluate or reasonably pursue information provided by various
Pueblos regarding the Las Huertas Canyon as a traditional cultural
property eligible for listing in the National Register. The Forest
Service had sent letters to various local Pueblos requesting
information regarding the existence and location of traditional
cultural properties in the Las Huertas Canyon, and had attended various
tribal council meetings to request the same information. General
information was made available to the Forest Service indicating the
existence of sacred ceremonial sites, but specific information was not
provided largely because secrecy is often a vital aspect of these
ceremonies.
The Forest Service took the position that it had made the efforts
required by the regulations to identify historic properties in the
canyon and that none existed. The SHPO concurred in this determination
and a final agency decision was rendered.\10\ The Pueblo of Sandia
brought suit in federal district court, alleging, among other things,
that the Forest Service failed to comply with section 106 of NHPA by
failing to properly evaluate the canyon as a ``traditional cultural
property'' eligible for listing on the National Register. The district
court noted that the Forest Service ``does not appear to have taken the
requirements of [the NHPA] very seriously.'' 50 F. 3d at 858, quoting
Memorandum Opinion and Order (April 30, 1993) at 12. Nevertheless the
district court ruled in favor of the Forest Service, finding that it
had made the required ``good faith effort'' to identify historic
properties in the canyon.
The United States Court of Appeals for the Tenth Circuit reversed
the district court, finding that the Forest Service violated its
obligation under Section 106 by failing to adequately pursue
information it had in its possession that the canyon was used by the
Pueblos for religious and ceremonial purposes and contained sacred
sites: ``[W]e hold that the agency did not reasonably pursue the
information necessary to evaluate the canyon's eligibility for
inclusion in the National Register.'' Pueblo of Sandia, 50 F.3d at 861.
The Tenth Circuit also found that the Forest Service failed to act in
good faith by withholding certain information, and by ignoring various
of the section 106 procedural requirements (e.g., not providing
documentation to the SHPO upon concluding that no historic properties
existed until after litigation was filed by the Sandia Pueblo).
Similarly, in Attakai v. United States, 746 F. Supp. 1395 (D.Ariz.
1990), the United States District Court for the District of Arizona
found that the Bureau of Indian Affairs (BIA) and the Department of
Interior failed to adequately consider the effects of a federal
undertaking on Navajo ceremonial sites located in areas no longer a
part of the Navajo reservation. (The sites were located on what is now
Hopi reservation land.) The district court issued a preliminary
injunction enjoining further governmental activity as a violation of
Section 106 of NHPA. The court held that the BIA violated Section 106
consultation requirements because it failed to consult with the
Navajos. (The BIA had consulted with the Hopi Tribe but not the
Navajos, apparently because the sites were not located on Navajo land.)
The court emphasized that the Section 106 process depended upon proper
consultation since the goal is to gather the necessary information to
properly evaluate historic properties. Moreover, ``the regulations
clearly contemplate participation by Indian tribes regarding properties
beyond their own reservations.''
The Attakai court also held that the BIA violated Section 106 by
failing to consult with the Advisory Council and the SHPO during the
preliminary determination as to whether historic properties existed
which were eligible for protection under Section 106. The BIA had
conducted its own survey to locate historic properties and a BIA
archeologist had recommended certain steps intended to avoid adverse
effects on the properties located. Significantly, BIA officials
testified that it was standard practice for the BIA Phoenix Office to
make eligibility and adverse effects determinations under Section 106
prior to consulting with the SHPO. The court emphasized the importance
of the initial identification stage of the Section 106 process. Here,
however, the BIA ignored the procedures, acting ``contrary to the
letter and spirit of the regulations.'' 746 F. Supp. at 1408. The court
concluded that the BIA ``did not adequately take into account the
effect of the undertakings on historic properties'' in violation of the
NHPA.
The Army Corps of Engineers (Corps) was found to have flouted
Section 106 procedures in Colorado River Indian Tribes v. Marsh, 605
F.Supp. 1425 (C.D. Cal. 1985). In Marsh, the district court granted the
plaintiff Colorado River Indian Tribes (Tribes) an injunction against
the Corps' issuance of a permit for construction along the western
shore of the Colorado River in California, on land abutting property
owned by the United States, administered by the Bureau of Land
Management (BLM), and located near the Colorado River Indian
Reservation. The BLM managed land is an archeological district with
significant cultural and archeological sites. The construction involved
the placement of riprap along the riverbank to stabilize the bank and
establish a boundary line for a housing development.
In conducting surveys to determine if eligible historic or cultural
properties existed, the Corps relied on proposed (but not yet
promulgated) regulations it had adopted but which had not been approved
by the Advisory Council as counterpart regulations for Section 106.
These proposed regulations imposed different responsibilities on the
agency depending on whether a site was listed on the National Register
and those not yet listed, but potentially eligible. By doing this, the
Corps was able to conduct archeological surveys in a more limited area
than the section 106 regulations require and the Corp therefore did not
survey the required areas for potentially eligible historic and
cultural sites. The Court emphasized that possible sites of
archeological and cultural significance had subsequently been located
on lands nearby the proposed development that should have been surveyed
if the proper regulations had been adhered to.
In short, the court in Marsh concluded that the Corps ``breached
its responsibilities under NHPA,'' and violated Section 106 by failing
to properly evaluate ceremonial sites of the Colorado River Indian
Tribes as eligible properties entitled to protection under Section 106.
605 F. Supp. at 1438.
All of the above cases were brought by tribes who claimed an
interest in traditional cultural sites located off tribal lands. They
were all brought prior to the time that Congress amended the NHPA to
statutorily impose an affirmative obligation on federal agencies
engaged in the Section 106 consultation process to ``consult'' with
``any Indian tribe or Native American Organization.''
IV. Conclusion
The FCC has been unwilling to live up to its consultation
obligations both under the National Historic Preservation Act and the
Trust Responsibility to Tribes. Instead, it has sought to delegate
those obligations to the cell tower companies, who have little
understanding, and generally even less regard for, tribal sovereignty.
The cell tower companies have sought the unique expertise of tribes in
the evaluation of sites for commercial cell towers, but have been
unwilling generally to cover the costs associated with using that
expertise. The result is an untenable situation where tribal rights are
trampled and tribal cultural and religious properties are endangered. I
urge the Committee to examine this situation closely and ensure the
protection of tribal rights and properties.
Thank you for this opportunity to testify. Your attention to this
matter is very important, and greatly appreciated by the United South
and Eastern Tribes.
ENDNOTES
\1\ One of the cruel ironies of this situation is that cell tower
companies and many tribes tend to value the same place: high points in
the landscape.
\2\ Attachment A: ``Protocols Governing the Relationship between
Federal Recognized Indian Tribes and Wireless Communication Tower
Manufacturers in the Review of Cell Tower and Tenant Array Siting,''
Draft Number 4, August 9, 2001.
\3\ In marked contrast to USET's experience with the communications
industry, I have personally been involved in a number of successful
negotiations regarding consultation with tribes with the Louisiana
National Guard (see Attachment B), the development of a Memorandum of
Agreement between the Poarch Creek Indians and the Alabama National
Resource Conservation Service (which is serving as a model for other
NRCS's), and the establishment of a Keepsake Heritage Cemetery at Camp
Beauregard for internment of American Indian remains.
\4\ See discussion at Section III, below.
\5\ Pub. L. No. 95-341, Section 1, 92 Stat. 469 (1978)(codified at
42 U.S.C. Section 1996 (1988).
\6\ Pub. L. No. 101-601, Section 2, 104 Stat. 3048 (1990)(codified
at 25 U.S.C. Sections 300-13 (Supp. III 1991).
\7\ Pub. L. No. 96-95, Section 2, 93 Stat. 721 (1979)(codified at
16 U.S.C. Sections 470aa-70mm (1988).
\8\ OMB Circular A-76
``5. Policy. It is the policy of the United States Government to:
b. Retain Governmental Functions In-House. Certain functions
are inherently Governmental in nature, being so intimately related to
the public interest as to mandate performance only by Federal
employees. These functions are not in competition with the commercial
sector. Therefore, these functions shall be performed by Government
employees.
6. Definitions. For purposes of this Circular:
e. An inherently Governmental function is a function which is
so intimately related to the public interest as to mandate performance
by Government employees. Consistent with the definitions provided in
the Federal Activities Inventory Reform Act of 1998 and OFPP Policy
Letter 92-1, these functions include those activities which require
either the exercise of discretion in applying Government authority or
the use of value judgment in making decisions for the Government.
Services or products in support of inherently Governmental functions,
such as those listed in Attachment A, are commercial activities and are
normally subject to this Circular. Inherently Governmental functions
normally fall into two categories:
(1) The act of governing; i.e., the discretionary exercise of
Government authority. Examples include criminal investigations,
prosecutions and other judicial functions; management of
Government programs requiring value judgments, as in direction
of the national defense; management and direction of the Armed
Services; activities performed exclusively by military
personnel who are subject to deployment in a combat, combat
support or combat service support role; conduct of foreign
relations; selection of program priorities; direction of
Federal employees; regulation of the use of space, oceans,
navigable rivers and other natural resources; direction of
intelligence and counter-intelligence operations; and
regulation of industry and commerce, including food and
drugs.''
\9\ Although this case was decided by the Court of Appeals in 1995,
the district court case was brought earlier, and the facts complained
of occurred prior to 1992 when Congress amended the NHPA to provide
tribes with consultation rights (see discussion below).
\10\ After the Pueblo of Sandia filed suit in federal court, the
SHPO withdrew its concurrence in the Forest Service's ``no adverse
effects determination.'' There is evidence that the Forest Service
withheld certain information from the SHPO.
______
Attachment A
Protocols Governing the Relationship between Federally Recognized
Indian Tribes and Wireless Communication Tower Manufacturers In
the Review of Cell Tower and Tenant Array Siting
I. INTRODUCTION
A. Background. The Personal Communications Industry Association
(hereinafter, PCIA) and the United South and Eastern Tribes
(hereinafter, USET), a consortium of 24 Federally recognized Indian
Tribes east of the Mississippi River (hereinafter, Tribes) have
established these Protocols in order to govern the review process
whereby the individual USET Tribes and the individual Cell Tower
Manufacturers (hereinafter, CTM) represented by PCIA may establish and
regularize working relationships, and in order to evaluate the
potential impact of cell tower and tenant array--both ``green fields''
(new site) and co-location sitings on properties of religious and
cultural significance to the Tribes.
Since 1492, Indian Tribes within what is now the United States
have, as a group, lost 98 percent of their aboriginal land base. This
percentage is even higher for the member Tribes of USET, whose
aboriginal lands were the first to be subsumed in the process of
European settlement. Today, as a result, the overwhelming majority of
Tribal properties of cultural and religious significance are located
off Indian Reservations and Federal trust lands.
The National Historic Preservation Act (NHPA) recognizes the
validity of continuing Tribal concerns with the protection of both on-
and off-Reservation properties of cultural and religious significance,
and establishes extensive Federal agency Consultation requirements with
Tribes when there is a ``Federal Undertaking,'' as defined in the
National Historic Preservation Act,\1\ with the potential to have any
affect on such properties. In the case of wireless communication towers
and tenant array sitings, that responsibility resides with the Federal
Communications Commission, in its capacity as permitter of the
transmission frequencies.
---------------------------------------------------------------------------
\1\ ``Federal Undertaking'' means ``a project, activity, or program
funded in whole or in part under the direct or indirect jurisdiction of
a Federal agency, including--(A) those carried out by or on behalf of
the agency; (B) those carried out with Federal financial assistance;
(C) those requiring a Federal permit, license, or approval; and, (D)
those subject to State or local regulation administered pursuant to a
delegation or approval by a Federal agency.''
---------------------------------------------------------------------------
The CTM are engaged in the construction of a universal wireless
telecommunications infrastructure network that is vital to the economic
and social future of the United States. The Tribal interests at issue
are also vital, both to the Tribes, and to the United States in terms
of its historic preservation goals and its national identity as a
nation of diverse and vibrant peoples and cultures.
The CTM seek to establish a process for Tribal review of tower
sitings that will expedite the Federal Communications Commission's
Section 106 Consultation process responsibilities under the National
Historic Preservation Act. As a central part of this process, the CTM
seek access to the unique expertise held by Tribes in the
identification, evaluation, assessment of effects, and treatment of
these sites, and understand the value of obtaining these professional
services. Consequently, it is of great importance to the CTM that a
cost-effective, fair, predictable, and consistent process be
established for accessing Tribal expertise.
Through these Protocols, the parties seek to assure that legitimate
and important Tribal interests in the preservation of properties of
religious and cultural significance to the Tribes are fully recognized,
while also addressing the needs of the CTM in a cost-effective and
efficient manner.
B. Good Faith Efforts. The parties agree to comply with these
Protocols in good faith to achieve the goals set forth herein.
C. Federal Indian Law Principles. The sovereign status of Federally
recognized Tribes (those Tribes listed by the Secretary of the Interior
pursuant to the Federally Recognized Indian Tribe List Act of 1994, 25
U.S.C. Section 479a et seq.), arising from their inherent nationhood
and existing since time immemorial, is affirmed in broad principles of
Federal law that provide that the Federal government has a trust
responsibility towards Tribes and that the United States relates to the
Tribes within a government-to-government framework. As sovereign
nations, Tribes have an inherent right and responsibility to protect
and promote the welfare of their people, which includes the right to
protect their cultural and religious properties. These doctrines are
rooted in the U.S. Constitution, Federal statutes (including the
National Historic Preservation Act, the Native American Graves
Protection and Repatriation Act, the American Indian Religious Freedom
Act, and the Archaeological Resources Protection Act), Executive Orders
(including Executive Order 13007--Indian Sacred Sites, and Executive
Order 13175--Consultation and Coordination with Indian Tribal
Governments), regulations, and case law, as well as in the policy
statement of the Advisory Council on Historic Preservation entitled The
Council's Relationship with Indian Tribes.
D. Federal Consultation Obligation. In addition to the broader
obligations of the Federal government described in Paragraph I.C.,
Federal agencies have a specific obligation under the National Historic
Preservation Act (NHPA) to consult with Federally recognized Indian
Tribes whenever a Federal Undertaking ``has the potential to affect an
historic property to which an Indian tribe or Native Hawaiian
organization attaches religious and cultural significance'' (16 U.S.C.
Section 470a(d)(6)(B)). An historic property is any prehistoric \2\ or
historic district, site, building, structure or object included in or
which maybe eligible for inclusion in the National Register of Historic
Places, including artifacts, records, and material remains related to
such property or resource. (See 16 U.S.C. Section 470w.) FCC licensing
of telecommunications frequencies, the integral element of tower siting
and tenant arrays, therefore, is a ``Federal Undertaking'' within the
meaning of the NHPA.
---------------------------------------------------------------------------
\2\ The parties to these Protocols recognize that the terms
``prehistoric'' and ``historic,'' which respectively refer to history
before and history after the arrival of the process of written
recordskeeping, with the Europeans in the Americas, do not convey the
historical perspective of Native Americans. Such terms are used here to
maintain consistency and, therefore, clarity in the relationship with
the language of Federal law and not to otherwise validate these
Eurocentric concepts.
---------------------------------------------------------------------------
E. Federal Communications Commission. Under the NHPA, the FCC is
responsible for consulting with Federally recognized Tribes whenever it
engages in an Undertaking that affects Tribal properties eligible, or
which may be eligible, for the National Register. The procedures
established by these Protocols contemplate no specific role for the
FCC. It is the intent of USET and of PCIA that these procedures should
lead to a Tribal certification regarding the effect of a cell tower and
antenna construction that can be relied upon by the FCC in meeting its
Consultation requirements. By these Protocols, the Tribes have not
agreed to any deferral, delegation, or diminishment of the FCC's
Consultation obligations under the NHPA or under the FCC's trust
obligation within the general principles of Federal Indian law. Except
as specifically agreed to in writing by any individual Tribe, the
Tribes do not concur in any delegation or abrogation of the FCC's
responsibilities under the NHPA.
F. United South and Eastern Tribes. USET was authorized by its
Board of Directors, representing its member Tribes (USET Resolution
2001:----), to engage in discussions with PCIA, with the intention of
establishing Protocols regularizing CTM access to Tribal expertise, in
order that the Tribes may protect sites and properties to which they
attach historic and religious significance from impact during the
process of cell tower and tenant array siting. USET recommends these
Protocols to its member Tribes, but does not have the authority to bind
any of its member Tribes to their acceptance.
In accordance with these Protocols, USET will establish a Tribal
Lands Directory (TLD) that lists the USET Tribes and the states in
which they have interest, as determined by each Tribe itself. The
Tribes will provide the information to the TLD. USET will make this
directory available to the CTM and their compliance subcontractors and
construction contractors through its website (www.usetinc.org). USET
also will maintain a directory of Tribal leaders, at the same site,
setting forth the name, title, and address for each USET Tribe and
leader, and the Tribal official responsible for historic preservation.
In addition, USET will facilitate these Protocols by providing
mediators for the Mediation Team, as set forth in Section XI.
G. Personal Communications Industry Association. PCIA was
authorized by its membership to engage in discussions with USET, with
the intention of establishing Protocols regularizing CTM access to
Tribal expertise, in order to expedite wireless communication tower and
tenant array sitings, and assist the FCC in fulfilling its Federal
responsibilities by seeking direct access to the unique expertise of
Tribes. PCIA recommends these Protocols to its members, but does not
have the authority to bind any of its members to these Protocols. PCIA
will facilitate these Protocols by providing mediators for the
Mediation Team, as set forth in Section XI.
H. State Historic Preservation Officer. These Protocols do not
provide a role for the State Historic Preservation Officer (SHPO).
Consistent with Federal law, the Tribes and the CTM recognize that the
SHPOs have a role in the NHPA Consultation process off Tribal lands,
and, in those cases where a Tribe does not have a Tribal Historic
Preservation Officer (THPO) established pursuant to Section 101(d)(2)
of the NHPA, on Tribal lands. Nevertheless, these Protocols are not a
substitute for the FCC's proper Consultation with all relevant parties
under that law. The Tribes and the CTM affirm and agree that a Tribe,
and not the SHPO or others, is the ultimate authority in the process of
identifying Tribal properties of cultural and religious significance.
The parties recognize the unique expert knowledge of the Tribes.
Consequently, notification to a CTM by a SHPO or others that there are
no properties of religious or cultural significance to a Tribe at a
given site shall not be taken to mean that no such properties exist at
that site but, rather, shall be taken to mean only that no such
properties are known, by the SHPO or others, to exist there. A search
of Master Site File (MSF) records is not sufficient to make a
determination about the properties which may exist at a site. Nor is an
archaeological survey necessarily sufficient for such purposes.
II. PROTOCOLS OF REVIEW
This section provides specific guidelines for contacting a Tribe
and providing the information necessary to obtain Tribal review of the
proposed greenfield or co-location construction site.
A. Contact with a Tribe shall be made at the earliest planning
stage but in no event later then when the CTM narrows its search ring
to a specific site. Failure to contact the Tribe as early as possible
will materially impede the review process. Contact may be made either
by the CTM or its representative, e.g., an archaeological, compliance,
or construction contractor (hereinafter, Contractor). If contact is
made by a Contractor, the CTM shall supply to the Contractor a copy of
these Protocols and sample documents, and shall require adherence to
this process. If contact with a Tribe is made by a Contractor, the CTM,
as the entity seeking Tribal expertise, shall nevertheless retain
responsibility for compliance with these Protocols.
B. Contacting the Tribe. The CTM shall commence good faith,
respectful, and culturally sensitive contact with the Tribe concerning
a site by sending a ``Request for Review'' letter to the Tribal
official specifically responsible for historic preservation. In many
instances, such official will not be the Tribal leader, but another
official designated to represent the tribe on historic preservation
matters. (Please note: letters sent to the incorrect official or to any
individual Tribal citizens will result in delays in processing.) The
names, proper titles (which should be used in all correspondence), and
addresses of the historic preservation officer or other individual
charged with the responsibilities of historic preservation may be
obtained directly from the Tribe or from the USET website (indicated,
above). Facsimile transmissions of information to the Tribe will not be
sufficient due to the degradation of detailed information that is
necessary for decision-making. The Request for Review letter must be
sent either by USPS First Class Mail (preferably certified, return
receipt requested), or by overnight courier service.
C. Request for Review Letter and Review Materials. A sample Request
for Review Letter is appended to these Protocols, as Appendix A. In
addition to the letter, the review materials provided to the Tribe
should include the following basic information, at minimum. Review will
not begin until these basic materials are received.
1. Site Location including latitude and longitude coordinates
(for those areas where property descriptions occur only in
metes and bounds), or Township, Range, and Section (TRS), where
applicable, of all areas included in the review site.
2. Map with the review site plotted on copy or copies of USGS
7.5' Series Topographic Maps.
3. Complete Site Survey Report. (A Report Summary will not
suffice.) The site survey shall be a Phase I archaeological
survey, conducted by a Registered Professional Archaeologist
who meets the Secretary of the Interior's Standards and has
credentials that demonstrate regional knowledge and experience.
The archaeological examination must be conducted on a five-
meter or less established grid after a pedestrian
reconnaissance along the transects, and shovel testing to
sterile soil levels at each grid intersect across the Area of
Potential Effect (APE). The APE shall be defined as including
the primary site; any anchor sites (for guyed towers); any
areas required for new construction of access road(s) and/or
equipment pads inside or outside of the primary site and any
anchor sites; and/or other areas of heavy equipment access.
The Site Survey Report must include:
a site and area history, including a detailed description of
the land, and indicating the degree of historical and current
soil disturbance;
a bibliographic or narrative review of any prior
archaeological surveys;
an evaluation of the potential for viewscape intrusion;
a review of any other potential environmental intrusions or
impact; and
color images of the site in question (digital images are
acceptable if they are output at [-----] dpi, minimum).
4. A detailed description and drawing of construction
methodologies, specifying all facets that will entail soil
disturbance. This description is required for both greenfields
and co-location sites.
5. A copy of the findings of the State-Wide Archaeological
Inventory or Master Site File search, signed by the SHPO.
Please note that a finding of ``no known sites'' in the
Inventory or MSF does not indicate that no sites are present.
Nor does it relieve the CTM of the responsibility for
conducting a Phase I archaeological survey (as above).
6. Not FCC Consultation. A statement indicating that this
Request for Review does not substitute for the FCC's
Consultation obligation, although the Tribe's response and/or
Certification and non-confidential data may be provided to the
FCC. (See: sample Request for Review Letter, Appendix A.)
7. Contact Information. Name, address, and telephone number of
contact individual. If the Request for Review has been made by
a Contractor to the CTM, then the name, address, and telephone
number of the CTM official responsible for compliance with
these Protocols shall be provided also.
8. Standard Review Fee. A check to cover the standard review,
made payable to the Tribe. (See: X, ``Fees.'')
D. Tribal Determinations in response to the Request for Review and
Review Materials. The Tribe commits to a response, in writing, within
30 days of receipt of the Request for Review letter and complete review
materials package. Tribal responses may include:
1. Request for Additional Information. If the review materials
package originally provided by the CTM does not provide all of
the required information (as established in II. C, 1-8), or is
otherwise insufficient for the Tribe to make a decision
regarding its interest in, and determination concerning, a
site, the Tribe may request additional information. This
request may take the form of a letter indicating the additional
information required; an in-person meeting or teleconference;
or a site visit by Tribal representative(s). (See: X.
``Fees.'') The Tribe's 30-day deadline for responding to the
CTM shall begin anew, upon receipt of an adequate response from
the CTM.
2. ``No Interest'' Determination. If the Tribe determines that
it has no interest in the site, it shall send the CTM a ``No
Interest Determination.'' The CTM may provide such a
determination to the FCC in order to demonstrate that the Tribe
has determined that it has no interest in the site.
3. ``No Current Interest.'' If the Tribe determines, on the
basis of the Request for Review letter and the complete Review
Materials provided, that it has no current interest in the site
it shall so inform the CTM. (For sample ``No Current Interest''
Response Letter, see Appendix B.) The CTM may provide a copy of
this response to the FCC in order to demonstrate that the Tribe
has reviewed the site materials and has issued its response.
The finding of ``No Current Interest'' does not preclude the
possibility that inadvertent finds made during the construction
process may be of interest to the Tribe. (See: V, ``Inadvertent
Finds.'')
4. ``Deferral'' Response. If the Tribe determines, on the
basis of the Request for Review letter and the complete Review
Materials provided that, for reasons of culture and history, it
wishes to defer its interest to another Tribe, it shall so
inform the CTM. (For sample ``Deferral'' letter, see Appendix
C.) The CTM may provide a copy of this response to the FCC in
order to demonstrate that the Tribe has reviewed the site
materials and has issued its response. One Tribe's Deferral to
another does not preclude the possibility that inadvertent
finds made during the construction process may be of interest
to the Deferring Tribe. (See: V, ``Inadvertent Finds.'')
5. Request for Additional Time. The Tribe also may extend the
deadline for responding by an additional 30 days if, in its
reasonable judgment, it is unable to respond adequately during
the initial period, for reasons of research requirements, staff
constraints, or other extraordinary considerations. In such a
situation, the Tribe shall notify the CTM or its Contractor
prior to the expiration of the initial 30-day review period. In
the case of a notification of deadline extension, the CTM shall
not incur any additional Tribal review fee, in accordance with
the fee provisions of these Protocols. (See: X, ``Fees.'')
6. No Adverse Impact Determination. A No Adverse Impact
Determination means that the Tribe has identified no properties
of cultural and religious significance within the APE or has
otherwise determined that the greenfields or co-location
construction, as described in the CTM's Review Materials, will
have no adverse impact on any such properties. The CTM may
provide the Tribe's ``No Adverse Impact Determination'' to the
FCC to demonstrate that the Tribe has determined that the
construction will have no adverse impact on any Tribal
properties of cultural and religious significance. (For sample
``No Adverse Impact Determination'' response see Appendix----
--.) The Tribe's ``No Adverse Impact Determination'' does not
preclude the possibility that inadvertent finds made during the
construction process may be of interest to the Tribe.
7. Adverse Impact Determination. An Adverse Impact
Determination means that the Tribe has determined that the
greenfields or co-location construction as described in the
CTM's Request for Review and Review Materials will have an
adverse impact on a property of cultural and religious
significance to the Tribe. An Adverse Impact Determination will
result in one of several possible courses of action: (1) the
CTM may choose to abandon the site, in favor of an alternate
site, and re-initiate review on the alternate site; (2) the
Tribe may agree to construction at the site, with on-site
monitoring by a qualified professional archaeologist; or (3)
the CTM and the Tribe may agree on a Resolution Plan for the
site in accordance with Section II.E., which will provide for
the disposition of inadvertent finds and make arrangements for
repatriation of any human remains following the steps provided
in these Protocols. Absent Tribal consent, no construction or
other development activities shall occur on a site with human
remains unless there is a repatriation and reinternment plan,
agreed upon with the Tribe.
E. Tribal-CTM Adverse Impact Negotiations. In the event that the
CTM chooses to pursue negotiations with the Tribe concerning resolution
of an Adverse Impact (pursuant to II, D, 7), such negotiations shall
commence as soon as possible. It shall be the goal of the parties to
reach a final plan on Adverse Impact resolution within 30 days of the
commencement of negotiations. Such a deadline may be extended by the
mutual consent of the parties. Such negotiations may lead to one of two
results:
1. Resolution Plan. The Resolution Plan shall be an agreed-
upon plan that satisfies the Tribe's concerns regarding
protection and preservation of the historic properties at
issue. The Tribal-CTM Resolution Plan will not necessarily
address the concerns of the general public or those interested
parties who have expressed concerns about the site.
Nevertheless, the CTM may provide the Resolution Plan to the
FCC in order to demonstrate that it has made a good-faith
effort to seek out the wishes of the Tribe, and has reached a
satisfactory arrangement concerning the resolution steps that
will satisfy the Tribe's concerns regarding the site.
2. Non-Agreement. If the Tribe and the CTM fail to agree that
resolution is necessary, or fail to agree upon a Resolution
Plan, they shall, in the first instance, request that the
Mediation Team seek a mediated resolution of the conflict. The
Mediation Team shall have 30 days to work with the parties in
order to reach an agreement. In the event that no agreement is
reached, the parties may present their separate findings to the
FCC, in order that the FCC may enter into Consultation directly
with the Tribe concerning the Undertaking, as required by
Federal law (including the National Historic Preservation Act,
the Native American Graves Protection and Repatriation Act, the
American Indian Religious Freedom Act, the Archaeological
Resources Protection Act, Executive Order 13007--Indian Sacred
Sites, and Executive Order 13175--Consultation and Coordination
with Indian Tribal Governments). Once the FCC and the Tribe
enter into Consultation, the requirements and remedies of the
National Historic Preservation Act will apply.
III. RELIABILITY OF TRIBAL DETERMINATIONS
A Tribal determination, based upon a Request for Review and
complete Review Materials, may be relied upon by the CTM before the
FCC, unless the Tribe has subsequently rescinded such determination in
writing, for good cause.
IV. TRIBAL FAILURE TO RESPOND
If the Tribe fails to meet the deadlines set forth herein, the CTM
may:
A. contact the Tribe directly by any means, in order to inquire as
to the delay and seek its cure;
B. notify the Mediation Team and seek the Mediation Team's
assistance in securing a response from the Tribe; or
C. complete its review of the site to the best of its ability
without Tribal input and notify the FCC that the Tribe failed to meet
the deadlines as set forth herein, with a copy of such notice sent to
the governmental leader of the Tribe and the Tribal official
responsible for historic preservation. Such a failure on the part of
the Tribe does not absolve the FCC or the CTM of its historic
preservation responsibilities under Federal law.
V. INADVERTENT FINDS
A. CTM Responsibility. In the event of an inadvertent find of
cultural remains, and/or artifacts, and/or human remains, and
associated grave goods which potentially may be associated with the
Tribe, the CTM or its Contractor shall: (1) cease construction
immediately; (2) take reasonable and immediate steps to protect the
site from environmental destruction, vandalism, and/or theft; (3)
ensure the confidentiality of the site; (4) contact a source of
technical expertise (e.g., the original archaeological compliance firm,
or a forensic anthropologist or pathologist in the case of human
remains), in order to confirm the find; (5) if the remains or artifacts
are, or have the potential to be, Native American, the CTM or its
Contractor shall notify the Tribe's historic preservation officer
immediately by telephone; and (6) follow up within three days of
telephone notification with written notification by first class U.S.
mail or overnight courier. In the event that human remains are
uncovered, the CTM also shall be responsible for complying with any and
all state laws regarding the discovery of human remains.
B. Tribal Response. The Tribe shall have the opportunity to make a
written determination of its desires concerning the inadvertent find,
including the disposition of any human remains and associated grave
goods, and to make physical disposition of the human remains and
associated grave goods within the traditional cultural requirements of
the Tribe. In the event that these items have cultural significance to
more than one Tribe, the Tribe agrees to confer with the other
interested Tribes regarding the appropriate disposition of these
remains and/or artifacts. In the event that the land is owned by an
entity or individual other than the CTM, the CTM shall still solicit,
in writing, comments from the Tribe. The Tribe shall be obligated to
respond as quickly as practicable in order to minimize the CTM's
project delay, but in no case later than seven days after written
notice has been received by the Tribe's historic preservation officer.
Except as otherwise provided in this paragraph, the Tribe's response
shall follow the provisions of Section II.D.
C. Compliance with the Law. In the event of an inadvertent find the
CTM shall comply with all pertinent Federal and state laws and
regulations including, but not limited to, the National Historic
Preservation Act, Native American Graves Protection and Repatriations
Act, Archaeological Resources Protection Act, American Indian Religious
Freedom Act, National Environmental Protection Act, and Executive Order
13007--Indian Sacred Sites.
VI. CO-LOCATION
A. Overview. Co-location of antennas constitutes an impact upon a
site, although the scope of that impact can vary widely. Tribes are
concerned about any impact that could affect properties of cultural and
religious significance to a Tribe.
B. Expedited Review for Co-Location(s) at a Site for which the CTM
previously has received a ``No Adverse Impact Determination'' from the
Tribe. Expedited review for co-location(s) may be available for sites
that previously have been reviewed under these Protocols and for which
the CTM can demonstrate that it has received either an Adverse Impact
Determination, No Adverse Impact Determination, No Interest
Determination, No Current Interest Determination, or Deferral, from the
Tribe. In such a circumstance, the CTM shall provide a copy of the
Tribe's original determination letter, along with documentation
(sketches or working drawings) indicating clearly the construction
process and methods to be employed in co-locating the new array. The
Tribe shall have 30 days to respond, in accordance with the procedures
of Section II, above. It shall be the expectation of the parties that,
unless the co-location is determined to have an Adverse Impact, the
Tribe shall expedite review at a reduced fee, as provided in the fee
schedule. (See: X, ``Fees.'')
C. Co-location Review for a Site not Previously Submitted for
Tribal Review. If the co-location site previously has not been
submitted for Tribal review under these Protocols, the CTM shall submit
to the Tribe a Request for Review Letter and Review Materials, as if
the site were under original consideration, as per Section II, C, 1-8,
above. In addition, the Review Materials must include construction
drawings for the already constructed tower. If the Tribe determines
that the original or subsequent construction already has had an adverse
impact on property of cultural and religious significance to the Tribe,
then the parties shall enter into discussions regarding practicable
resolution (as per Section II, E, 1). If the parties are unable to
reach such a resolution, then it shall be the responsibility of the FCC
and/or the Advisory Council on Historic Preservation to enter into
Consultation to resolve the issue (as per Section II, E, 2). With
regard to the co-location, the Tribe shall have 30 days to respond in
accordance with the procedures of Section II, above.
VII. IDENTIFYING TRIBAL LANDS
For the purpose of identifying where the Tribe may have an interest
in a greenfields or co-location site, it shall be deemed a good faith
effort for the CTM to request that information from the USET Tribal
Lands Directory.
VIII. MULTIPLE TRIBAL INTEREST
These Protocols are applicable to the professional relationship
between the CTM and an individual Tribe or multiple Tribes. In those
cases where the site under review is situated on the ancestral lands of
more than a single USET member Tribe, the CTM may rely upon these
Protocols in order for each Tribe to make a determination regarding the
site. It shall remain the responsibility of the CTM to contact each
appropriate Tribe. It shall remain the prerogative of the Tribes to
respond individually, defer to one another, or decline to review, as
per Section II, D.
IX. CONFIDENTIALITY ISSUES
A. CTM Concerns. Both the CTM and the Tribe have substantial
confidentiality concerns. The CTM considers potential site locations to
be proprietary business information. The Tribe agrees to keep
confidential all material it receives from the CTM regarding the
location of a cell tower site and related business information, except
where disclosure is authorized in writing by CTM or otherwise required
by law. The Tribe stipulates that it has no way of knowing what
information is considered to be proprietary by the CTM and what is not.
Consequently, the Tribe agrees to treat the information exchanged in
the course of Requests for Reviews as confidential, except where the
CTM authorizes the disclosure in writing, or where it is otherwise
required by applicable law.
B. Tribal Concerns. The Tribe considers the location of many
properties of cultural and religious significance to be proprietary
cultural information, and seeks confidentiality in order to protect
those properties. The CTM shall not disclose information it has
acquired, whether from the Tribe or from another source, that relates
to properties of cultural and religious significance to the Tribe,
except where disclosure is authorized in writing by the Tribe or
otherwise required by law. The parties understand that there may be
some circumstances in which the Tribe cannot divulge to the CTM the
exact nature or location of a Tribal cultural or religious property. In
such circumstances, the Tribe shall endeavor, in good faith and to the
extent consistent with its need for confidentiality and Tribal custom
and/or law, to provide as much relevant information as possible to the
CTM. The CTM stipulates that it has no way of knowing what information
is considered to be proprietary by the Tribe and what is not, despite
the fact that U.S. governmental agencies have unilaterally chosen to
disclose Tribal information in the past. Consequently, the CTM agrees
to treat the information exchanged in the course of Requests for
Reviews as confidential, except where the Tribe authorizes disclosure
in writing, or where it is otherwise required by applicable law.
X. FEES
Tribal fees for providing these professional review services to the
CTM shall be based upon a fee schedule that reflects the uniqueness of
the expertise, the complexity of the task, the labor-intensive nature
of the work, and the resources needed to address the issue. The
following fee schedule is proposed as fair and equitable.
Standard Review. Tribe engages in a standard review of the site,
based upon a complete Review Materials package. Cost: $----
Extended Review. Tribe needs to undertake a more extended review
which could include a site visit. The cost of a site visit, including
travel, per diem at the Federal rate, and a review fee of $---- per day
for the Tribe's historic preservation officer, traditional cultural
practitioner, or other designated representative, shall be borne by the
CTM, in addition to the Standard Review fee (above).
Co-Location Review: Tribe has reviewed the original construction
and issued a determination of No Adverse Impact. Cost: $----
Co-location Review: Tribe has not reviewed original construction.
Cost: $----, same as Standard Review fee, above.
Inadvertent Find Fees: The CTM shall compensate the Tribe for out-
of-pocket expenses (including, but not limited to, travel) associated
with reviewing an inadvertent find.
Negotiated Fees. The parties may agree in writing to such other
fees as they jointly deem warranted.
XI. DISPUTE RESOLUTION
A. Mediation. Except as otherwise provided by mutual written
agreement of the parties, the parties shall resolve disputes under
these Protocols through mediation. The parties agree to use the USET-
PCIA Mediation Team to assist in mediating a dispute over any aspect of
these Protocols including a determination of an Adverse Impact or the
terms of a Resolution Plan. By mutual consent, the parties may select
any other mediating entity. The Mediation Team shall consist of 4 or 6
individuals; half selected by USET and half selected by PCIA. The
Mediation Team shall serve as a mediator for the Tribe and the CTM
regarding disputes under these Protocols. The Mediation Team shall have
no enforcement authority, but shall encourage the parties to reach
agreement consistent with their own interests and the goals of these
Protocols. The Mediation Team shall endeavor to meet with the parties
and seek resolution of the dispute within 30 days of receiving notice
of the dispute from one of the parties. [The Tribe shall pay the costs
of the mediators associated with USET in accordance with such terms as
the Tribe shall reach with USET. The CTM shall pay the costs of the
mediators associated with PCIA in accordance with such terms as the CTM
shall reach with PCIA.]
B. Failure of Mediation. In the case of sites concerning which the
Tribe and the CTM are unable to reach any agreement satisfactory to
both parties, the dispute shall revert to the head of the FCC as the
Federal agency responsible for complying with Section 106 of the
National Historic Preservation Act, and the Advisory Council on
Historic Preservation if either party deem necessary. It will then be
the responsibility of the FCC to complete Consultation, on a
government-to-government basis, with the specific Tribe, and to reach a
decision regarding the siting and to justify its decision in writing.
At the time of its decision, it shall remain the prerogative of either
party, the FCC or the affected Tribe, to request formally the entry of
the Advisory Council on Historic Preservation into the Consultation
process. Further, no language in these Protocols or in the process of
Consultation or in the recommendations of the ACHP shall be construed
as limiting the rights of the original parties to seek legal redress in
a court of competent jurisdiction.
XII. AMENDMENT
These Protocols may only be amended by agreement in writing of the
parties hereto. The parties agree to meet at one-year intervals to
discuss the effectiveness of these Protocols and the need for any
amendments.
______
Programmatic Agreement Among The Louisiana Army National Guard, The
Alabama Coushatta Tribe of Texas, The Caddo Tribe of Oklahoma,
The Chitimacha Tribe of Louisiana, The Coushatta Tribe of
Louisiana, The Jena Band of Choctaw Indians, The Mississippi
Band of Choctaw Indians, The Quapaw Tribe of Oklahoma, The
Tunica-Biloxi Indians of Louisiana, The Louisiana State
Historic Preservation Officer, The Louisiana State
Archaeologist and The Advisory Council on Historic Preservation
Regarding Undertakings that May Affect Historic Properties
WHEREAS, the Louisiana Army National Guard (LAARNG) has a Federal
mission which includes federal military training and related activities
on lands it owns, leases or controls in the State of Louisiana; and,
WHEREAS, the LAARNG has determined that its Federal mission and
related activities may have an effect on properties included in or
eligible for inclusion in the National Register of Historic Places
(National Register); and,
WHEREAS, the LAARNG has consulted with the Advisory Council on
Historic Preservation (ACHP), the Louisiana State Historic Preservation
Officer (LASHPO), and the Louisiana State Archaeologist (LASA); and,
WHEREAS, the LAARNG has determined that its Federal mission and
related activities may have an affect on properties included in or
eligible for inclusion in the National Register that are of religious
and cultural significance to the Alabama Coushatta Tribe of Texas, the
Caddo Tribe of Oklahoma, the Chitimacha Tribe of Louisiana, the
Coushatta Tribe of Louisiana, the Jena Band of Choctaw Indians, the
Mississippi Band of Choctaw Indians, the Quapaw Tribe of Oklahoma and
the Tunica-Biloxi Tribe of Louisiana (Signatory Tribes); and,
WHEREAS, the LAARNG in recognition of the sovereignty of each of
the Signatory Tribes, has consulted with these Tribes on a government-
to-government basis in accordance with Section 800.14(f)(2)(c)(2) of
the ACHP's regulations (Protection of Historic Properties 36 CFR Part
800) and Executive Order 13175: Consultation and Coordination with
American Indian Tribal Governments, and invited them to be signatories
to this Programmatic Agreement (PA); and,
WHEREAS, the LAARNG and each Signatory Tribe has entered into a
Memorandum of Understanding (MOU) on or after May 7, 1998; and,
WHEREAS, the Signatory Tribes and the LAARNG have adopted the
``Policy Regarding Consultation, American Indian Cultural Sites,
Cultural Resource Investigation and Procedures, and American Indian
Human Remains'' (Policy) on or after January 6, 2000.
WHEREAS, the LAARNG and the Signatory Tribes, through a MOU,
solemnly created an American Indian Keepsake Heritage Cemetery on or
after October 13, 1999; and,
WHEREAS, the signatories to this PA recognize that only the
Signatory Tribes possess the expertise to identify and evaluate
historic properties of religious and cultural significance; and,
WHEREAS, the signatories to this PA recognize the necessity of
consultation with the Signatory Tribes and the authority of the LAARNG
and the LASHPO to make determinations with regard to cultural sites
eligible for the National Register; and,
WHEREAS, all signatories to this PA recognize that there may be
cultural prohibitions against tribal members divulging certain
information about properties of religious and cultural significance and
agree to keep confidential to the fullest extent of the law any such
information that may be revealed in the course of consultation; and,
WHEREAS, through implementation of this PA, the LAARNG intends to
meet its responsibilities, pursuant to Section 101(d)(6)(B) of the
National Historic Preservation Act (NHPA),`to consult with Indian
tribes that attach religious and cultural significance to historic
properties,' in carrying out its mission; and,
WHEREAS, historic properties, including but not limited to,
archaeological sites, locations, and other properties in which features
and cultural items are of American Indian origin, or in which there are
American Indian burials, or Traditional Cultural Properties and/or
Sacred Sites which are of religious and cultural significance to the
Signatory Tribes, for purposes of this PA, shall be referred to as
American Indian Cultural Sites (AICS); and,
WHEREAS, AICS shall be afforded the same legal standing and
protection by all applicable Federal or state statutes, regulations,
policies, Presidential Memoranda, or Executive Orders, including, but
not limited to the American Indian Religious Freedom Act (AIRFA),
Executive Order 13007, Executive Order 13175, Executive Order 12898,
Executive Order 11593, Department of the Army Pamphlet 200-4: Cultural
Resources Management, Army Alternative Procedures for Section 106 and/
or other Federal agency alternate procedures, the Louisiana Unmarked
Human Burial Sites Preservation Act (LA R.S.8:671, et seq.), and the
Louisiana Archaeological Resources Act (LA R.S. 41: 1601-1614); and,
WHEREAS, the definitions given in Appendix A are applicable
throughout this PA; and,
WHEREAS, the Federal and state statutes, regulations, policies,
Presidential Memoranda, or Executive Orders and related documents
listed in Appendix B are applicable throughout this PA;
NOW, THEREFORE, the LAARNG, the Signatory Tribes, the ACHP, the
LASHPO, the LASA agree that the administration, planning, and conduct
of the LAARNG's Federal mission and related activities shall be carried
out in accordance with the following stipulations to satisfy the
LAARNG's Section 106 requirements for undertakings that may affect AICS
and other historic properties.
Stipulations
The LAARNG shall ensure that the following measures are carried
out:
I. Consultation with the Signatory Tribes
A. The LAARNG shall consult with the LASHPO, the LASA and the
Signatory Tribes early on in the planning process and throughout the
Section 106 review regarding any activity or undertaking that might
affect an AICS and other historic property. Such consultation shall be
conducted in the following manner:
1. Initial consultation by telephone followed by written
confirmation.
2. Written correspondence documenting the consultation process
for the administrative record.
3. Face-to-face consultation meetings for obtaining advice or
the opinions.
B. Consultation with the Signatory Tribes
1. The LAARNG shall consult with each Signatory Tribe on a
government-to-government basis in recognition of Tribal
sovereignty.
2. The LAARNG shall establish and maintain the position
Coordinator for Native American Affairs (CNAA) to serve as
liaison and coordinator of affairs between the LAARNG and the
Signatory Tribes. The CNAA shall advise and provide guidance to
the LAARNG concerning Native American affairs and will
facilitate consultation with the Tribes on a government to
government basis. The LAARNG shall ensure that the CNAA be
provided with documents relating to the Signatory Tribes, AICS
and other historic properties, and other resources as the CNAA
may need to carry out the duties of the position. In addition,
the LAARNG shall ensure that the CNAA participates in Section
106 consultation with the Signatory Tribes.
C. The LAARNG shall consult with the Signatory Tribes, the LASHPO
and the LASA regarding the timing, location and agenda of consultation
meetings and ensure that advance written notification to the Signatory
Tribes for such meetings is done in a timely manner that is
satisfactory to the Tribes and the LAARNG.
D. Designated representatives of the LAARNG, including the Unit
Environmental Compliance Officer (UECO), the CNAA, official
representatives of the Signatory Tribes, the LASHPO, the LASA and the
ACHP, if participating, shall consult in good faith and in the manner
defined in Executive Order 13175, Executive Order 13007, the MOU, the
Policy, this PA and in accordance with those authorities listed in
Appendix B.
II.Initiating the Section 106 Review Process
A. The LAARNG shall determine whether a proposed action is an
undertaking and therefore subject to the Section 106 Review Process.
B. In consultation with the LASHPO, the LASA and the Signatory
Tribes, the LAARNG shall identify any other consulting parties entitled
to participate in the Section 106 process in order to determine if the
proposed undertaking has the potential to affect AICS and other
historic properties.
C. The LAARNG shall invite any local government to participate in
the consultation process that has jurisdiction over an area in which
the effects of an undertaking may occur.
D. The LAARNG shall ensure that consultation with other consulting
parties, including local governments, shall not include the
dissemination of information that might risk harm to the AICS or that
might impede the use of a religious or Sacred Site by any of the
Signatory Tribes in accordance with Section 304 of the NHPA and with
those authorities as listed in Appendix B.
III. AICS and other historic properties
A. Scope of Identification
Site discovery, recordation, preservation, protection, and
avoidance shall be the standard operating procedure regarding AICS and
other historic properties.
1. Determining the Scope of Identification for AICS and other
historic properties:
The LAARNG shall consult the LASHPO, the LASA and the
Signatory Tribes to determine the area of potential effects; to review
information on AICS and other historic properties in the area; and, to
seek information from others likely to have knowledge of such
properties in the area.
2. Identifying AICS and other historic properties is based on
the information gathered in Stipulation III.A.1. The LAARNG in
consultation with the Signatory Tribes, the LASHPO and the LASA
shall develop and implement an appropriate and competent non-
destructive investigative cultural survey to locate AICS and
other historic properties. The LAARNG shall ensure that:
a. All such archaeological surveys conform to the minimum
survey standards of the Louisiana Division of Archaeology;
b. Remote sensing is emphasized and recommended;
c. GPS coordinates along with all other geographical and site
information required by the State of Louisiana is included along with
photographs that relate the site to its physical location.
3. Data Collection:
a. When necessary for determining significance, artifacts
removed for diagnostic purposes and /or site verification shall be
limited to a minimum. Refer to Stipulation IV.
b. Rather than intensive collecting of artifacts, recordation
in place is the preferred practice.
c. Artifacts shall be photographed and/or drawn in place with
sufficient detail as to show diagnostic attributes.
d. The LAARNG shall ensure that the removal of cultural items
from an AICS and other historic property adheres to those authorities
as listed in Appendix B.
e. The LAARNG shall ensure that the removal of cultural items
from an AICS and the disposition of those items require consultation
with and agreement by a majority of the Signatory Tribes.
B. Evaluation of AICS and other historic properties
1. The LAARNG, the LASHPO and the LASA shall evaluate
properties identified through a survey in accordance with 36
CFR Section 800 (4)(c).
2. The LAARNG shall provide the Signatory Tribes the
opportunity to evaluate all historic properties to determine if
such properties are of religious and cultural significance and
are considered to be an AICS.
3.a. If a survey, conducted for cultural resource management
purposes, results in the identification of properties that are
of undetermined eligibility and will not be affected by a
proposed undertaking, but are of religious and cultural
significance to one or more of the Signatory Tribes, the LAARNG
in consultation with the Signatory Tribes, shall develop and
implement a management plan for the properties in accordance
with Stipulation VII of this PA.
b. If a survey conducted for cultural resource management
purposes, results in the identification of other historic properties
that are of undetermined eligibility for the National Register, the
LAARNG, in consultation with the LASHPO, the LASA, and the UECO shall
develop and implement a management plan for the properties.
C. Assessing the effects of a proposed undertaking on AICS
The LAARNG, the LASHPO and the LASA, in consultation with the
Signatory Tribes, shall determine if the proposed undertaking alters,
directly or indirectly, any characteristics that qualify the property
for inclusion in the National Register or are of religious and cultural
significance to the Signatory Tribe(s). Alterations that would diminish
the integrity of the property's location, design, setting, materials,
workmanship, feeling, or association may be considered to be adverse
effects.
1. The LAARNG shall consider all qualifying characteristics of
a historic property, including those qualities for which the
property is of religious and cultural significance to a
Signatory Tribe(s).
2. The LAARNG and the LASHPO shall determine if one or more of
the examples of adverse effects (36 CFR Section 800) apply,
including threats from unavoidable alteration, physical
destruction or damage. Signatory Tribes shall be consulted when
alterations would adversely affect an AICS.
3. If the LAARNG, the LASHPO and the LASA determine that a
proposed undertaking will not adversely affect an AICS or other
historic properties after consultation with the Signatory
Tribes, the LAARNG shall implement the undertaking as planned.
If, at any time, prior to or during implementation, the
undertaking is modified, the LAARNG shall consult the Signatory
Tribes, the LASHPO, and the LASA regarding the modification and
its effect on historic properties.
D. Resolution of adverse effects to AICS and other historic properties
1. If the LAARNG in consultation with the Signatory Tribes and
the LASHPO, determines that a proposed undertaking will
adversely affect an AICS and/or other historic properties, the
LAARNG shall consult with the Signatory Tribes and the LASHPO
to develop and implement a plan to avoid or minimize adverse
effects to the AICS and other historic properties through
project redesign or other means.
2. If the LAARNG, the Signatory Tribes and the LASHPO agree on
conditions that successfully avoid or adequately minimize
adverse effects to an AICS and other historic properties, the
LAARNG shall implement the proposed undertaking in accordance
with the agreed-upon conditions.
3. If the LAARNG, the Signatory Tribes and the LASHPO agree
that adverse effects cannot be avoided or adequately minimized
through project redesign or other means, the LAARNG, in
consultation with the Signatory Tribes, and the LASHPO, shall
develop and implement a plan to mitigate the adverse effects of
the proposed undertaking on AICS and other historic properties.
4. If the LAARNG, the Signatory Tribes, the LASHPO and the
LASA determine that appropriate mitigation of an AICS or other
historic property is site data recovery, then, prior to any
site data recovery, the LAARNG shall ensure that a research
design, a data recovery plan and timetable is developed and
implemented in consultation with the Signatory Tribes, the
LASHPO and the LASA.
5. In accordance with the regulations of the ACHP (36 CFR
800), the LAARNG, the LASHPO, the Signatory Tribes may at any
time request the ACHP to participate in the consultation.
IV. Permits
A. The LAARNG shall ensure that consultation with the Signatory
Tribes occurs prior to the application of a permit from the State
Archaeologist, acting on behalf of either the Louisiana Division of
Archaeology, the Louisiana Survey and Antiquities Commission, or the
Louisiana Unmarked Burial Sites Board, as may be required by the nature
of a proposed undertaking.
B. The LAARNG, Tribal, or other consulting parties' concerns and
restrictions, if any, shall be relayed to the State Archaeologist prior
to the issuance of any permit.
C. The LAARNG shall ensure that all necessary permits are obtained
prior to carrying out the site data recovery plan. Permitees must have
a research design approved by the LAARNG and the LASA--acting, as
defined by the nature of the proposed undertaking, on behalf of either
of the Louisiana Division of Archaeology, the Louisiana Survey and
Antiquities Commission, or the Louisiana Unmarked Burial Sites Board.
V. Data Recovery
A. The site data recovery plan, based on firm background data,
sound planning, and accepted archaeological methods, shall specify, at
a minimum:
1. The property, properties, or portions of properties where
data recovery is to be carried out;
2. The research questions to be addressed through data
recovery, with an explanation of their relevance and
importance;
3. The methods to be used, with an explanation of their
relevance to the research questions;
4. The methods to be used in analysis and data management;
5. The proposed disposition of recovered materials and
records;
6. The proposed methods by which the Signatory Tribes, the
LASHPO, and the LASA will be kept informed of the progress of
the data recovery and be afforded the opportunity to
participate;
7. A proposed schedule for the submission of progress reports
to all relevant parties; and,
8. The procedures for addressing the discovery of human
remains or funerary objects in accordance with Stipulation IX
of this PA, as applicable.
B.1. The LAARNG shall ensure that the data recovery plan is
implemented by or under the direct supervision of a person(s) meeting
the minimum qualifications for the Secretary of Interior's
Qualifications Standards (48 CFR 44738-44739) and the mimimum
qualifications for Professional Archaeologists as set out in Title 25
Section 102 of the Louisiana Administrative Code.
2. When the LAARNG requests assistance from a Signatory
Tribe(s) to aid in the identification, evaluation, assessment
of effects, and treatment of historical properties of
traditional religious and cultural importance, such Signatory
Tribe(s), their representatives, Traditional Cultural
Authorities and/or Practitioners or other religious leaders
need not meet the Secretary of the Interior's Professional
Qualifications Standards (48 FR 44738-44739) and the minimum
qualifications for Professional Archaeologists as set out in
Title 25 Section 102 of the Louisiana Administrative Code.
C. The LAARNG shall ensure that adequate time and funding are
provided in order to carry out all aspects of the data recovery plan.
D. The LAARNG shall submit the data recovery plan with supporting
documentation to the Signatory Tribes, the LASHPO, the LASA, and other
consulting parties for review and comment for a period of not less than
thirty (30) working days.
VI. Curation
A. Artifacts Recovered during Identification Surveys and Data
Recovery
1. The LAARNG shall follow curation standards set forth in 36
CFR Part 79 and the curation standards of the Louisiana
Division of Archeology. Cultural items including human remains,
field notes, project-related slides and photographs, analysis
notes, or other materials generated during an identification
survey, test excavation, data recovery, or related project
shall be curated in a state approved curation facility.
However, should a Signatory Tribe have a concern with the
curation items related to an AICS, the LAARNG and the CNAA
shall consult with the Signatory Tribe(s) to ensure that the
treatment of the curated items is acceptable with tribal
practices and traditions.
2. The LAARNG shall ensure that documentation, including
geographical and site information, is curated with cultural
items, including human remains, and is made available to the
designated representatives of the LAARNG, the LASA, and the
official representatives of the Signatory Tribes if cultural
items are from an AICS. Site location information shall be
withheld from public disclosure in accordance with Section 304
of the NHPA, LA RS 41: 1609, and in accordance with those
authorities listed in Appendix B.
3. American Indian human remains and associated funerary items
originating from LAARNG lands shall be curated in consultation
with and approval from the majority of the Signatory Tribes.
4. When American Indian human remains and associated funerary
items are not from LAARNG lands, the tribe(s) having ``right of
possession'' to those cultural items may request temporary
curation through the LAARNG prior to burial in the American
Indian Keepsafe Heritage Cemetery.
5. Human remains and associated funerary items will be curated
together.
6. The LAARNG shall consult with the Signatory Tribes prior to
the accession or the deaccession of any cultural items
recovered from an AICS.
VII. Preservation and Protection of AICS and other historic properties:
The LAARNG, in consultation the LASHPO, the Signatory Tribes, or
other consulting parties, shall develop a plan for the preservation of
AICS and other historic properties that are identified pursuant to this
PA and that may or may not be affected by a proposed undertaking. The
plan shall include measures for the long-term protection of such
properties including, but not limited to:
1. Camouflaging, where warranted, with soil and/or protective
cover by utilizing native flora or other natural and native
materials.
2. Posting ``Off Limits'' signs or other appropriate warning
signage, fencing, and/or the placement of remote sensing
monitoring devices, as is site appropriate.
3. Systematic patrols of AICS and other historic properties by
trained, qualified, and authorized LAARNG personnel shall
include periodic monitoring of the condition of such properties
and the development and implementation of corrective measures
that may include erosion control, restoration, or other means
of preservation and protection.
4. Development of procedures and guidelines for the
conservation and preservation of historic structures and
properties.
VIII. Documenting and Reporting Requirements
A. The LAARNG shall provide all cultural resource investigation/
archaeological reports, including bibliographies, on LAARNG controlled
properties, to the Signatory Tribes, designated officials of the
LAARNG, the LASHPO, and the LASA.
B. The LAARNG shall ensure that the Signatory Tribes, designated
officials of the LAARNG, the LASHPO, and the LASA are provided timely
progress/activity reports on the implementation of the data recovery
and/or as each survey session is complete.
C. Reports shall conform to the Louisiana Division of Archaeology's
Standards for Archaeological Reports and shall be submitted to the
LASHPO, the LASA, designated officials of the LAARNG, the Signatory
Tribes and other consulting parties for a review and comment.
Recipients of the report shall have forty-five (45) days from receipt
of the report to provide comments to the LAARNG.
D. Precise location data shall only be provided to Signatory
Tribes, designated officials of the LAARNG, the LASHPO, and the LASA in
a separate attachment to the report and shall otherwise be withheld
from disclosure pursuant to Section 304 of the NHPA, Executive Order
13007 and other authorities as listed in Appendix B.
E. The LAARNG shall ensure that a final report is produced in a
timely manner for all data recovery efforts and it shall be provided to
designated officials of the LAARNG, the Signatory Tribes, the LASHPO
and the LASA.
IX. Inadvertent Discovery
A. In the event of an inadvertent discovery, that may be eligible
for the National Register, which may include human remains, associated
funerary objects, or the indications of a burial, that is encountered
during an undertaking, the LAARNG shall ensure that all activity in the
general area ceases, the area is secured and a reasonable effort is
made to protect the discovery including any human remains and any
associated funerary objects.
B. If human remains are discovered, the individual(s) who made the
discovery shall immediately notify law enforcement officials, the LASA,
the appropriate LAARNG officer(s), including the CNAA and the UECO.
1. If such remains constitute a crime scene, all applicable
laws and procedures will apply.
2. If human remains are deemed to be of American Indian
origin, the LAARNG shall notify the Signatory Tribes, by
telephone, within 24 hours of the discovery, followed by
written notification.
3. If human remains are historic and not of American Indian
origin, the LAARNG shall consult with the LASA to identify
consulting parties.
C. For and inadvertent discovery, the LAARNG shall implement the
following procedures:
1. An immediate survey or resurvey of the general area shall
be instituted by an archaeologist in the presence of designated
officials of the LAARNG and if of American Indian origin, a
designated representative(s) of the Signatory Tribes and the
CNAA.
2. Within five (5) working days of receipt of written
notification, the LAARNG shall consult with all relevant
parties to determine the appropriate course of action with
regard to the human remains and accompanying artifacts. The
appropriate course of action shall be limited to:
a. Protection from further disturbance
b. Repair of damage to site
c. Avoidance
d. Removal of human remains and associated funerary objects
3. If the LAARNG, after consultation, determines that
protection, avoidance, or repair are not possible, then
disinterment shall be conducted in accordance with methods and
procedures acceptable to the relevant parties.
4. American Indian human remains shall not be drawn or
photographed without prior consultation and agreement from a
majority of the Signatory Tribes.
5. The LAARNG may authorize activity in the direct discovery
areas to resume in less than thirty (30) days, if the following
conditions are met:
a. The relevant parties have determined an ``appropriate
course of action'' by the adoption of an expedited recovery plan for
excavation or an agreed-upon alternative. For an AICS, a majority of
Signatory Tribes will need to concur on the recovery plan or an agreed-
upon alternative.
b. Implementation and completion of a recovery plan or agreed-
upon alternatives.
c. Development of a time line procedure depending on the
significance of the site.
d. Written confirmation by the LAARNG that the above
requirements have been met.
X. Intentional Excavation of Human Remains
The LAARNG shall ensure that removal or disinterment of a burial
and human remains occurs only after all feasible alternatives have been
considered in consultation with the LASHPO, the LASA, designated LAARNG
officials, the Signatory Tribes, or other relevant parties. If the
LAARNG, the LASHPO, the LASA, and the Signatory Tribes (when the site
is an AICS), or other relevant parties concur that removal or
disinterment is the only feasible alternative, the LAARNG shall ensure
that:
1. Disinterment is carried out in accordance with the
concurrence of, and in the presence of, a designated
representatives of the LAARNG and, if relevant, a designated
representative(s) of the Signatory Tribes or other relevant
parties. Disinterment shall be carried out in a sensitive
manner respectful of the customs and beliefs of the deceased.
2. There is proof of consultation, in accordance with
Stipulation I.C., through issuance of a required permit.
XI. Reinterment
A. Reinterment of American Indian human remains from LAARNG lands
shall be in the American Indian Keepsafe Heritage Cemetery at Camp
Beauregard or, if conditions warrant, as close to the original burial
site as possible. The location of the reinterment shall be determined
in consultation with a majority of the Signatory Tribes.
B. When reinterment concerns American Indian human remains not from
LAARNG lands, the tribe(s) with ``rights of possession'' of the human
remains and associated funerary objects shall consult with the official
designates of the LAARNG for reinterment in the American Indian
Keepsafe Heritage Cemetery.
C. The LAARNG shall consult with relevant parties when human
remains that are not of American Indian origin and are from LAARNG
lands for a determination of a reburial site.
XII. Scientific Analysis of Human Remains
A. The LAARNG shall ensure that any proposal with regard to
scientific investigation or analysis of human remains will warrant
approval from relevant parties. Written approval from the majority of
the Signatory Tribes is required before scientific investigation or
analysis on American Indian human remains and/or associated funerary
items.
B. The LAARNG shall ensure that extensive scientific research,
including intrusive or destructive analysis, will not be conducted on
burials, human remains, or associated funeral objects emanating from
LAARNG lands without the express written approval from the relevant
parties, including the Signatory Tribes. The exception to this is when
forensic information is necessary with regard to a crime scene.
C. The LAARNG shall ensure that those Signatory Tribes that desire
to conduct religious ceremonies with regard to American Indian human
remains and funerary objects are afforded that opportunity. [AIRFA:
42U.S.C.SECTION 1996(94)]
D. The LAARNG shall ensure that documentation American Indian human
remains, associated funerary objects, or cultural items is in
accordance with the standards and procedures of the Louisiana Division
of Archaeology.
XIII. Review of Implementation
A. The LAARNG, the Signatory Tribes, the LASHPO, and the LASA shall
meet annually to review implementation of the terms of this PA and
determine whether revisions are needed. To facilitate such
consultation, the LAARNG shall report to the Signatory Tribes, the
CNAA, and the LASHPO all activities carried out pursuant to this PA.
Such reporting shall be in a form acceptable to these parties. If these
parties determine that revisions are needed, the LAARNG, the Signatory
Tribes, and the LASHPO shall consult in accordance with 36 CFR Section
800.14(b) and Executive Order 13175 to make such revisions.
B. Any of the Signatory Tribes or the LASHPO may request that the
ACHP review the LAARNG's implementation of the terms of this PA. If the
ACHP determines that the terms of this PA are not being carried out, or
if the agreement is terminated, the LAARNG shall comply with 36 CFR 800
Sections 3 through 7 with regard to individual undertakings covered by
this agreement.
XIV. Administrative Procedures
A. The LAARNG, in consultation with the Signatory Tribes, the
LASHPO, and the LASA shall develop standard conditions for inclusion in
all cultural resource contracts and work orders that include, but are
not limited to, cultural resource surveys, investigations, National
Register evaluations, site protection, and mitigation/data recovery. In
addition, the LAARNG shall provide the LASHPO, the LASA, and the
Signatory Tribes a description of the area of potential effects, a
summary of the proposed work, and attached maps. Previous survey
testing and eligibility to the National Register shall be included.
B. The LAARNG shall provide sufficient information, including
contact names of designated LAARNG officials, to all contractors and
staff regarding procedures for an inadvertent discovery of historic
properties, human remains, and cultural items and the penalties for
inappropriate actions under the applicable Federal and state laws and
regulations in all contracts, work orders, and related documents with
copies to the UECO and the CNAA.
C. The LAARNG, in consultation with the LASHPO and the LASA shall
develop standard operating conditions for inclusion in all contracts,
work orders, and other related documents for activities that might
result in ground or habitat disturbance.
D. Standard operating procedures shall be attached as appendices to
contracts, work orders and other related documents.
XV. Dispute Resolution
Should any signatory to this PA object within forty-five (45) days
from receipt of any plans provided for review, the LAARNG shall consult
with the objecting party to resolve the objection. If the LAARNG
determines that the objection cannot be resolved, the National Guard
Bureau (NGB) shall request further comments of the ACHP pursuant to 36
CFR Section 800.7(a)(1). Any ACHP comment provided in response to such
a request shall be taken into account by the NGB and the LAARNG in
accordance with 36 CFR Section 800.7(c)(4) (i)(ii)(iii) with reference
only to the subject of the dispute. The LAARNG's responsibility to
carry out all actions under this PA that are not the subject of the
dispute will remain unchanged.
XVI. Null and Void Provision
In the event any provision of this PA shall be deemed contrary to
or in violation of any applicable existing law or regulation of the
State of Louisiana or the United States of America or of the Signatory
Tribes affixing their signatures hereto, only the conflicting provision
shall be deemed null and void, and the remaining provisions of this PA
shall remain in effect.
Execution and implementation of this PA evidence that the LAARNG
has satisfied its Section 106 responsibilities for all individual
undertakings carried out pursuant to this PA.
LOUISIANA ARMY NATIONAL GUARD
Major General Bennett C. Landreneau, the Adjutant General
ALABAMA COUSHATTA TRIBE OF TEXAS
Kevin Battise--Chairman
CADDO TRIBE OF OKLAHOMA
LaRue Parker, Chairwoman
CHITIMACHA TRIBE OF LOUISIANA
Alton D. LeBlanc, Jr., Chairman
COUSHATTA TRIBE OF LOUISIANA
Lovelin Poncho, Chairman
JENA BAND OF CHOCTAW INDIANS
Beverly C. Smith, Chief
MISSISSIPPI BAND OF CHOCTAW INDIANS
Philip Martin, Chief
QUAPAW TRIBE OF OKLAHOMA
Tamara Summerfield, Chairperson
TUNICA-BILOXI INDIANS OF LOUISIANA
Earl J.Barbry, Sr., Chairman
ADVISORY COUNCIL ON HISTORIC PRESERVATION
John M. Fowler, Executive Director
LOUISIANA STATE HISTORIC PRESERVATION OFFICER
Laurel Wyckoff, State Historic Preservation Officer
LOUISIANA STATE ARCHAEOLOGIST
Thomas Hales Eubanks, PhD
Appendix A: Definitions
The following definitions apply throughout this PA:
American Indian Cultural Resource: shall mean any material remains
of human life, activities religious or ceremonial practices. Cultural
resources shall include, but not be limited to, pottery, basketry,
bottles, weapons, weapon projectiles, tools, structures, or portions of
structures, pit houses, rock paintings, certain plants, rock carvings,
intaglios, viewscapes, graves, human remains, or any portion or piece
of the forgoing objects.
American Indian Cultural Sites: shall mean historic properties,
including but not limited to, archaeological sites, locations, and
other historic properties in which features are culturally important or
items that are of American Indian origin, or in which there are
American Indian burials, or Traditional Cultural Properties and/or
Sacred Sites which are of religious and cultural significance to the
Signatory Tribes.
American Indian Keepsafe Heritage Cemetery: shall mean those LAARNG
lands, which are designated and maintained by the LAARNG as cemeteries
under Louisiana Law for the secure and permanent reinterment of the
human remains and funerary objects or sacred items of American Indian
Tribes.
Area of Potential Effects: means the geographic area or areas
within which an undertaking may directly or indirectly cause changes in
the character or use of Traditional Cultural Properties and/or Sacred
Sites which are of religious or cultural importance to any Signatory
tribe, if any such properties exist.
Burial: means the placement of a dead body or bodies below, on, or
above the surface of the earth by specific intent, accidental or
undetermined reason. Burial methodologies may vary. Remains may be
whole, partial, cremated, disarticulated or have been exposed to, or
by, the elements, and burial may be evidenced only by a stain in the
earth and/or by funerary objects.
Burial site: means any natural or prepared physical location,
whether originally below, on, or above the surface of the earth, into
which, as a part of the death rite, event or ceremony of a culture,
human remains are deposited by specific intent, accidental or
undetermined reason. It is understood that many American Indian burial
sites do not fall within a non-Indian definition or concept of
gravesite or burial.
Consultation: means the process of seeking, discussing, and
considering the views of other participants, and where feasible,
seeking agreement regarding matters arising in the Section 106 review
process. Consultation is an important part of a cooperative effort and
has as much to do with obtaining information as with providing
information. Notification, which alerts parties of a pending agency
action late in the planning process, is not consultation.
Coordinator for Native American Affairs: means that person who is
to serve as a liaison and coordinator of affairs between a military
organization and the Federally-recognized tribes that are culturally
affiliated with those military lands owned, leased or controlled by the
military organization. The CNAA shall advise and provide guidance to
the military organization concerning Native American affairs and will
facilitate consultation on a government to government basis.
Cultural affiliation: means that there is a claimed and shared
tribal relationship culturally linked historically or prehistorically
between a present day federally-recognized Indian tribe and an earlier
people.
Cultural items:
a. associated funerary objects: shall mean objects that, as a
part of the death rite, occurrence or ceremony of a culture,
are believed by any Signatory Tribe or other party to have been
placed with individual or collective human remains either at
the time of death, accidentally or on purpose, or later, except
that other items exclusively made for burial purposes or to
contain human remains shall be considered as associated
funerary objects.
b. unassociated funerary objects: shall mean objects that, as
an element of the death rite, occurrence, or ceremony of a
culture, are believed by any Signatory Tribe or other party to
have been placed with human remains either at the time of death
or later but have been removed from the human remains by
whatever means or for whatever purpose.
c. sacred objects: shall mean specific objects designated by a
federally recognized tribe or by Traditional Cultural
Authorities and Practitioners and/or other religious leaders
acknowledged by a Signatory Tribe.
d. cultural patrimony: shall mean an object having ongoing
historical, traditional, cultural importance central to an
American Indian group or culture itself, rather than property
owned by an individual American Indian, and which therefore,
cannot be alienated, appropriated, or conveyed by any
individual regardless of whether or not the individual is a
member of the Indian tribe, and such objects, or object has
been, or is, considered inalienable by such an American Indian
Tribe.
Diagnostics: shall mean artifacts or cultural items, which may be
used to aid identification as to cultural affiliation, cultural phases,
or time periods.
Historic Properties: shall mean any pre-European contact or
historic district, site, building, structure, or object included in, or
eligible for inclusion in, the National Register of Historic Places,
including artifacts, records, and material remains related to such a
property or resource. For purposes of this PA, historic properties that
are of religious and cultural significance to the Signatory Tribes are
referred to as American Indian Cultural Sites and which as such may be
eligible for inclusion in the National Register of Historic Places.
Human remains: shall mean the physical remains of a human body of a
person or persons of American Indian ancestry or other party, including
but not limited to bones, teeth, hair, ashes, other remnant evidence
thereof mummified or otherwise preserved soft tissues. Where human
remains may have been incorporated into a funerary object, that object
shall be considered a part of that particular burial or burials.
Inadvertent discovery: shall mean the unanticipated encounter or
detection of American Indian Cultural Sites and/or other historic
properties, human remains, funerary objects, sacred objects, or objects
of cultural patrimony.
Indian tribe: means an Indian tribe, band, nation, or other
organized group or community which is recognized as eligible for the
special programs and services provided by the United States to Indians
because of their status as Indians as stated in Federal statutes and
more properly as defined most current Department of Interior/Bureau of
Indian Affairs list of tribal entities published in Federal Register
pursuant to Section 104 of the federally recognized Indian Tribe List
Act. (1994)
Intentional excavation: shall mean a planned removal from an
American Indian Cultural Site and other historic property, human
remains, funerary objects, sacred objects, or objects of cultural
patrimony.
Reinterment: shall mean the reburial, in accordance with the terms
of this PA, MOU, the Policy, and tribal cultural and religious
practices, in such a manner that the identity, location, and integrity
of the human remains are maintained in accordance with Section 304 of
the NHPA and those other authorities listed in Appendix B,
Relevant Parties: means those parties that have a particular
interest in an AICS and other historic property who should be consulted
with regard to an undertaking, inadvertent discovery, or an intentional
excavation. These parties may be lineal descendants, or culturally
affiliated, federally recognized Signatory Tribes, or have a vested
interest in a specific undertaking.
Sacred Sites: refer to Executive Order 13007: Sacred Sites.
Traditional Cultural Property: means those properties whether
tangible or intangible that are of religious and cultural significance
to a specific tribe(s).
Undertaking: means a project, activity, or program funded in whole
or in part under the direct or indirect jurisdiction of a Federal
agency, including those carried out by or on behalf of the agency;
those carried out with Federal financial assistance; those requiring a
Federal permit, license, or approval; and, those subject to State or
local regulation administered pursuant to a delegation or approval by a
Federal agency.
Appendix B
Authorities:
Executive Order 11593
Executive Order 12898
Executive Order 13007
Executive Order 13175
American Indian Religious Freedom Act
Army Alternative Procedures for Section 106
Army Regulation 200-4
Archeological Resources Protection Act
Department of Army Pamphlet 200-4: Cultural Resources Management
Native American Graves Protection and Repatriation Act
Louisiana Administrative Code: Title 25 Section 102
Louisiana Archaeological Resources Act (LA R.S. 41: 1601, et seq.)
Louisiana Cultural Resources (LA Administrative Code, Title 25,
Chapter 1.)
Louisiana Unmarked Human Burial Sites Preservation Act (LA R.S.
8:671, et seq.)
National Historic Preservation Act
______
Cell Tower Reviews:
To date the Mississippi Band of Choctaw Indians have received a
minimum of about 400-500 requests to review cell tower construction in
the states of Mississippi, Alabama, Arkansas, Florida, Georgia,
Louisisana, South Carolina Tennessee and Missouri. All of these
requests have come either directly from the companies building the cell
towers themselves or from environmental contractors working for the
companies building the towers. Many have virtually no locational
information or maps included witht he letter requesting review--but
they do include a check off saying that there are no sites of religious
or cultural importance to the tribe so that we can rubber stamp their
requests!
FCC Sponsored Telecomunications Working Group
To the best of my knowledge this group was formed at least two
years ago and has previously written one nation-wide programmatic
agreement covering the National Historic Preservation Act (NHPA)
Section 106 review of upgrades and expansions of existing cell towers.
This PA was adopted with NO tribal involvement in it's drafting or
tribal constultation about it's content.
Sometime in February I received a copy of a Public Notice issued by
the FCC from a friend of mine who works for another federal agency who
just happened to see it and thought I might be interested in it. It was
a call for tribal involvement in the newly formed Sub-groups to the
Telecommunications Working Group which were in the process of drafting
yet another nationw-wide programmatice agreement--this time covering
the NHPA Section 106 review for the contruction of NEW cell towers. I
called the contact phone number listed in this public notice (since the
email address listed was non-functioning!) and eventually got a reply
to the message I left. I was told that while the public notice had been
released, it had not at that time been mailed out to Tribes or in
anyway distributed directly to tribes, but that it would be mailed out
within a few days. To the best of my knowledge this public notice has
yet to be distributed to tribes.
In response to my inquiry about the working groups I was added to
what was then Subgroup number 3 which was subsequently combined with
Subgroup number 4 and was informed that there was a joint conference
call occuring THAT afternoon and given the information for joining it.
I was emailed a copy of the draft document which Subgroup number 3 was
working on--it was draft number 9 or 10. Having had little time to
prepare for the conference call I nonetheless joined it to see what
exactly was occurring in these calls. During this conversation whenever
I voiced concerns over the language or policies being discussed which
reflected the Tribal views of issues I was politely but pointedly
either ignored or told that this was a document which was only going to
govern the cell tower manufacturers and the SHPOs. The manufacturers
were aware that they had an obligation to consult with tribes (not the
FCC mind you, the manufacturers) and that they would therefore not
really be covered in this document.
Within a couple of weeks of this initial meeting I was informed
that Draft number 15 of the portion of the PA being drafted by the
Subgroup number \3/4\ had been finalized and would be forwarded along
with the work of the other 4 or so subgroups to be integrated into the
final draft PA. I had previously been informed that when that draft was
completed it would be submitted to the Advisory Council on Historic
Preservation for adoption--hopefully at their JUNE 2002 Meeting! When I
voiced an objection to this time frame, given the fact that NO Tribal
consultation had occurred on this document, I was ignored.
This occurred just before the last meeting of the Advisory Council
earlier this year (2002). Since the Council was about to meet, I called
the staffer who was involved in drafting the integrated programmatic
agreement and was told that if I wish to voice my concerns over the
total lack of Tribal consultation on this matter and the rush to adopt
it that I would need to take it up with Ray Soon, the Native Hawaiian
representative to the Council. I was told to send a note requesting
Soon call me about this matter and giving a brief description of the
issue which I did. I have yet to hear anything back from Soon on the
matter.
Kenneth H. Carleton,
THPO/Archaeologist,
Mississippi Band of Choctaw Indians.
Chairman Inouye. Thank you very much, Mr. Day. I am aware
that you are here against your doctor's orders.
Mr. Day. Yes, sir.
Chairman Inouye. And I am aware that you are undergoing
radiation treatment at this moment, and for that I thank you
very much.
Chairman Inouye. May I begin by asking Mr. Snowden, you
just heard Mr. Day. If my interpretation of section 106 is
correct, the Government is the one that should conduct the
environmental assessment, and you are supposed to bear the
cost. Am I wrong in my interpretation of the law?
Mr. Snowden. Senator, the answer to your question is out of
my purview. I would be happy to get for the record and for your
staff the answer to your question.
Chairman Inouye. Do you have lawyers in the back, sitting
there?
Mr. Snowden. I do have some lawyers in the back sitting
here.
Chairman Inouye. Will you ask them, or would the lawyer
care to take the stand?
Mr. Snowden. What he is saying is that the rules do permit
us to act as you have just suggested. It is also important to
note that----
Chairman Inouye. Then why don't you do that?
Mr. Snowden. What we will need to do is talk with the
members of the commission and find out exactly what our status
is on that issue.
Chairman Inouye. And if you are going to do that, you are
supposed to bear the costs, are you not, and why has this
situation continued for years, as Mr. Day indicated?
Mr. Snowden. Again, I will need to look into it. I am
unfamiliar with the----
Chairman Inouye. I will expect a full report from the
Federal Communications Commission.
Mr. Snowden. You will have it forthwith.
Senator may I add a point to something that Mr. Day was
saying, though?
Chairman Inouye. Sure.
Mr. Snowden. We actually are taking a very proactive
approach with this issue, and I notice some of the documents he
was holding up are from previous commissions, and that is not
stated to negate our responsibility, but it is important to
note that we are, through this reorganization of the agency
which the Congress has just passed, we are respecting the
Tribe's sovereignty, the role of the sovereign Governments, and
we will also respect the interest of confidentiality, because I
think you are absolutely right, we need to keep this
information confidential in terms of what is going on. So that
is our position at this point, but I will get information back
to you shortly.
Chairman Inouye. There is a law that says that in order
to--well, receive certain universal service subsidies you must
be designated an ETC.
Mr. Snowden. That is correct.
Chairman Inouye. And now that ETC must be under State
jurisdiction?
Mr. Snowden. Well, it depends, sir. The reason we get
involved from the Federal level is when both the State and the
Tribes are asserting jurisdiction, and that is at the request
of a carrier, and so as Mr. Stanton and Mr. Day and others
have--Mr. Strand has also mentioned, our agency, we get
involved through the law that we have submitted, or we have
enacted to make a decision on if the carrier should have ETC
status or not.
It is important to note that also we are planning to look
into this issue to see if there is a better way to support
actual cost of ETC in the competitive markets.
Chairman Inouye. Is it not true that if the State has
jurisdiction over this carrier, and I think that almost all of
the carriers, without exception, are land carriers, that the
States make it very difficult for wireless cell phones to get
into operation in Indian land?
Mr. Snowden. I think it depends where you are. Each State
is different, each situation is different, and we review it
when it comes to us on a case-by-case basis.
Chairman Inouye. Then why does it take so long to process
an application of this nature? We know, for example, that in
Navajo land there is no telephone service because it is so
expensive to lay lines, and it does not take an expert to
figure out no company is going to lay that line. Why can you
not give it to a cell phone company?
Mr. Snowden. We have committed to deciding the
jurisdictional issue when it comes through us within a 6-month
period, so our decisions will be made in that 6-month time
frame.
Chairman Inouye. Does it take 6 months to make that
decision?
Mr. Snowden. According to our position now it is----
Chairman Inouye. Do you think we should change the law to 1
month?
Mr. Snowden. I think that is above my pay grade, sir.
Chairman Inouye. Can you ask someone back there who may be
above you?
Mr. Snowden. I think I would need to ask the four
commissioners that are currently at the FCC. I am above their
pay scale, so it is definitely above theirs, and mine.
Chairman Inouye. Will you ask the commission? Because we
will be submitting an official letter.
Mr. Snowden. I sure will, sir.
Chairman Inouye. Because something has to be done, because
under the present law as it is interpreted by the FCC, we are
not going to get anywhere. 6 months will expire, and something
else will come up.
Mr. Snowden. It is important to note that we only get
involved when the jurisdiction question needs to be answered,
so the States are definitely involved, as well as the Tribes,
and so that is when it comes to us.
Chairman Inouye. Now, in your testimony, it was very nice
that Indians are involved, that you have a lot of programs for
Indians, and in fact Indians are a part of the homeland
security program?
Mr. Snowden. I am not sure if I am following what you are
saying.
Chairman Inouye. You mentioned that, that there is a role
to play for Indians in homeland security.
Mr. Snowden. I am not familiar with what you are asking,
sir.
Chairman Inouye. Then I will ask you, do Indian Tribes have
a role to play in homeland security?
Mr. Snowden. I think all Americans have a role to play in
homeland security.
Chairman Inouye. How can they play this role if you do not
have telephones or communication? I am not being facetious, but
are we going to have smoke signals now?
Mr. Snowden. Senator, I do not think that is necessarily
the route we would take. However, we at the commission do treat
homeland security as a very serious issue, and the chairman has
established a Homeland Security Policy Council which, of
course, we will coordinate and work with from a Government to
Government relationship with our tribal partners as well as our
State and local governments.
Chairman Inouye. I think most of us assembled in this room
have at least three telephones per home. They also have a
couple of cell phones, and I think all of the executives
sitting here at least have a cell phone in the car, and yet in
just about every Tribe there are certain people who cannot dial
911. Do you think that is right?
Mr. Snowden. I think in the situation that we are in today,
we need to increase the penetration rate of telephones across
the country on Indian lands, in rural America, in some of our
poorer sections of the country, everyone. Telephones are no
longer just--they are required in life.
Chairman Inouye. I hope you will look into 106 and the ETC.
Mr. Snowden. We sure will, sir.
Chairman Inouye. I think that would bring about some
noticeable change.
Ms. Masten, if you had the authority to request something
and be granted, what would you request of the Government? Not a
whole list, now.
Ms. Masten. I am trying to narrow it. You notice I had a
little pause there.
I would request that you look at capital, because it is
cost-prohibitive, and I think this country recognized that
sometime ago when they brought electricity and telephones to
America and they subsidized that. I think it is unfair to
expect that Tribes should subsidize the burden and cost of
infrastructure today, and I would ask that you look at ways to
provide the capital, technical assistance incentives and tax
credits.
Chairman Inouye. If I am correct, Ms. Warren Edelman
testified that you can get grants from the Department of
Agriculture and as a result 6 Tribes have set up their own
telephone companies, is that correct?
Ms. Warren-Edelman. That is correct, yes. To my knowledge,
and I am not familiar with the program in terms of its
limitations, but in order to put together, I believe an
application for the USDA you probably have to have a business
plan in place and again, as I mentioned before, funds for
planning are not adequate. So in order for those Tribes to get
to the point where they could probably take advantage of the
loan program, they would also need to have assistance on the
planning side in order to know that is what they wanted to do.
And again, that is not the solution for all Tribes. Having
a telephone, or telecommunications business, as you have heard,
is highly competitive, and constantly changing, so I am sure
the tribal councils in each of these communities took that into
consideration and were able to address those issues, but again,
funding needs to be placed in planning programs.
Chairman Inouye. So that program would require some money
up front.
Ms. Warren Edelman. I believe so. I think as with any
business you have to invest some of your own money before you
can actually reap the benefits of other sources of capital.
Chairman Inouye. Is my interpretation of ETC wrong?
Ms. Warren-Edelman. I am not familiar with the ETC issues,
other than what I have heard here today.
Chairman Inouye. What about Mr. Day's 106 issue?
Ms. Warren-Edelman. I find it surprising and disturbing,
highly disturbing that anyone goes on Indian lands, whether
they are there walking across it, or surveying it, or doing
anything other than working with the Tribe to help preserve
that land in the name of their own business, especially when
the business is not beneficial to the Tribe, nor is it
something that the Tribe wants.
All--all--interaction with the Tribe should go through the
tribal council, be respectful of sovereignty, be cognizant of
sovereignty and its jurisdictional issues, and work from there.
Chairman Inouye. I will await my second turn. Chairman
Campbell.
Senator Campbell. Thank you, Mr. Chairman. Well, there is
certainly some diverse testimony. I am sorry I missed Ms.
Warren Edelman's. I heard the rest of it, though. I guess
certainly one of the agreements is we have got a problem, we
need to find a solution. I do not know how many have lived
without telephone service, but when I moved back to the
reservation, just 20 years ago, 22 years go, we had no phone
service, and I can tell you that what maybe would have been
considered years ago a luxury darned sure is not now. It is
literally an absolute necessity as our lifestyle, our
livelihood, and our safety in many cases is somehow related to
our communication ability, so I appreciate your testimony.
Sue, nice to see you here. We do not see you here as often
testifying in front of the Committee as you did when you were
president of NCAI. We miss you, but I know you are doing good
work in California. I hope you will give my best regards to the
Apina family. I used to teach them years ago in Indian school,
taught them jewelry-making when I had a real life, as I
sometimes tease, and they were terrific friends. And I was
particularly interested in hearing Mr. Day's comments, too, in
that I had no idea, if that is actually happening, that the FCC
or any company can just pretty much arbitrarily come on Indian
lands and without the consent of Tribes, which surprised me, so
let me maybe start with Mr. Day.
Is that pile of information you have in front of you there,
Mr. Day, that whole pile of documents, does that deal with
promoting the telephone service on the reservation, or the
roadblocks preventing it?
Mr. Day. No, sir. All of these are not on the reservation.
Senator Campbell. I see.
Mr. Day. That is the point, and Senator, if I may proceed,
we are not attempting to be obstructionist in this at all. I
get very frustrated when I used to come to Washington out of
New Orleans on the train, only in Atlanta, Georgia I could use
the phone, but when the train moved I had to wait till we get
to Richmond because there were not any towers in there, so I am
not opposed to the towers.
What I am opposed to is the invasion of tribal sovereignty
by these people, where--the FCC apparently does not understand
what the law says is that we have a vested interest in
aboriginal lands, and a right to assert ourselves in the
protection of those sacred properties and traditional cultural
properties, and these all deal with that issue. There is not a
single one of these that deals with a cell phone tower on the
reservation, although we have been trying to get one.
Senator Campbell. So it is your view that existing laws are
not adequate to protect sacred sites, tribal sacred sites?
Mr. Day. Well, no, sir, they are not, and they are
totally--they are really quite inadequate. The only thing we
have is Executive Order 13007, which deals with sacred sites on
Federal lands.
There is, of course, as you are probably aware--the Senator
from West Virginia is preparing some legislation on sacred
sites, but there is also in section 106 and in the advisory
council regulations provisions for us to be able to assert
ourselves off the reservation in those areas. And sir, if I
may, this little document--that little document is the Native
American Historical Initiative with the National Guard, wherein
we have established memorandums of understanding, and the very
first programmatic agreement on a military installation that
the advisory council--I think Ms. Hauser is sitting back
there--has approved, that the Army has approved, that the
Tribes have approved, so we all know what book we are reading
from and what table we are sitting at, and it works fine. In
fact, this has been used as a model across this country, not
just by the military.
We established the very first Keepsake Heritage Cemetery at
Camp Beauregard in Louisiana, where the so-called culturally
unidentifiable human remains, any human remains can be
reinterred. We have now done the same thing with Fort Benning,
a major Army Infantry training center. We are now doing it in
Mississippi with the Mississippi National Guard, and
incidentally we have a sacred site fully protected, fully
understood in the direct middle of the major tank training
range at Camp Shelby, Mississippi. That site is not disturbed.
It does not interfere with the military mission, which is just
as important.
As the Senator said over there, do the Tribes have a role
in this? You had better believe they do. Yes, we do. I am still
in the State militia, Senator.
Senator Campbell. Who would have guessed?
[Laughter.]
Senator Campbell. Thank you, Mr. Day.
Ms. Masten, Sue, the Yurok Tribe, have you applied to these
programs that are available like Life Link, Link-Up America,
technology opportunities and things like that?
Ms. Masten. Well, if you do not have a telephone, you do
not have a use for those services, so for the Upper
Reservation, no, but on the Lower Reservation, and that was one
of my recommendations, was the carriers, the local carriers are
not getting the word out to those who need it the most so that
they are aware of the services and can take advantage of that,
and I had asked for a recommendation to the FCC to encourage
those local carriers to partner with the tribes to get the
message out to those members who do have phones, so that they
can take advantage of those services.
Senator Campbell. When I mentioned when I first moved back
to the reservation, I remember experiencing difficulty in
having a telephone put in. As I remember, they told me that it
cost too much to put a phone in to where I lived. We finally
had to get a bunch of other people, and it took about 2 years
as I remember, that also wanted to be in that link-up, and we
had the--what is it called when a number of people are on the
same line? We had that for a long time before we got a private
line, but you mentioned various telephone companies would not
put phone lines on the reservation because it was not
economically viable. That has been your experience, too.
I can understand that at least from one perspective,
because they are businesses. They have to make a profit, and I
guess like the REA, in the olden days, that is why the Federal
Government subsidized the REA to electrify the West, because it
just could not be done with private incentive.
Maybe, let me ask one or two more, one to Mr. Snowden.
Ms. Masten. Senator, could I just add a point?
Senator Campbell. Yes, please do.
Ms. Masten. Even wireless for the reservation, how is that
going to work if we do not have power? So that is a concern,
too, so that opportunity for anything else that may be out
there to take advantage of. We are further disadvantaged by the
fact that we do not have electricity, either.
Senator Campbell. Are you asking me how it was going to
work? We get to ask the questions.
[Laughter.]
Senator Campbell. Mr. Snowden.
Mr. Snowden. Yes, sir.
Senator Campbell. I hope you got Mr. Day's message kind of
loud and clear. It sure came clear to me. Let me ask you a
couple of questions here. In the Administration's budget this
year, there has been a program reduction of the technology
opportunities program from $45.4 million to $15.5 million. How
do you justify that huge cut?
Mr. Snowden. That is actually the Department of Commerce.
Senator Campbell. Oh, excuse me. It is in the Department of
Commerce?
Mr. Snowden. I will gladly give that to them.
Ms. Warren Edelman. I am not them any more.
[Laughter.]
Senator Campbell. Well, who would like to answer that on
behalf of the Government? You are the only one here, are you
not?
[Laughter.]
Mr. Snowden. In all due respect, I think I will defer to my
colleagues in the Commerce Department to answer that question
for you.
May I address something that you brought up with Mr. Day--
--
Senator Campbell. Yes.
Mr. Snowden.--with respect. The commission has been very
clear that companies must get permission from the tribal
leaders before they go on to tribal lands, and I am not sure
where the breakdown is with understanding that, but that is
clearly one of our rules that we have put in place, so the
issue that we see, we are seeing some difficulties when the
Tribes want to go off the tribal lands, and that is some of the
challenges.
Senator Campbell. As I understand the sacred sites law,
that if there are sacred sites designated, identified and
designated, even if it is not on tribal land, there has to be
some consultation with the tribes----
Mr. Snowden. Correct.
Senator Campbell.--before the Federal Government can do
that.
Let me ask you about incentives. What are incentives given
to provide groups like Bell South, Verizon, or some other
companies? Are there incentives now from the FCC to encourage
them to go onto reservations?
Mr. Snowden. Well, the Lifeline Link-Up program itself, the
universal service program itself is an incentive for carriers
to actually go onto these reservations and provide,
particularly in high cost areas. A piece of the universal
service program directly talks to high cost areas, and the
reason that was put in place was so that they would have the
incentive, because they know they could go into a reservation
where it is a high cost area at a reduced price, or a price
that is lower, comparable to an urban area.
Senator Campbell. Mr. Strand, as I understood your
testimony, you would like to see the FCC hold public hearings
on designating eligible telecommunications carriers for
entering reservations. What are your objections to FCC
preemption? Has that already been answered? I heard you mention
that in your testimony a little bit.
Mr. Strand. Mr. Chairman, Senator, our objection to the FCC
doing these reviews is that the process they have is not
conducive to fully developing a record on whether the carrier's
representations in their application are true.
One thing I want to emphasize as much as I possibly can is
how important ETC designation is. This is the lifeline that
people have to the national network. In Montana, with a very
sparse population distributed across the State and terrible
weather conditions, especially in the winter, universal service
is what people rely on to get emergency services out to rural
ranches and farms. The State Public Service Commission has to
be assured that phone service is going to work.
In the case, for example, of a wireless service that is
served by backup batteries, those batteries typically last
about 8 hours. If you have power out for 3 or 4 days, the
Public Service Commission is going to be understandably
reluctant to say, ``by all means you (the wireless provider) be
the universal service provider in this rural area, and if the
power goes out, the folks are just out of luck.''
Senator Campbell. You mentioned the investment. I wrote in
my notes here, $2 million investment when you set up telephones
on the Crow Reservation. Well, how do you end up with a profit
if you have to make an investment like that on the reservation?
Mr. Strand. Well, first of all we are nonprofit telephone
cooperatives.
Senator Campbell. I see.
Mr. Strand. And the other way we fund our operations is
using universal service dollars.
Senator Campbell. Well, it sounds like that could be a
model for other places. Are there reasons why that cannot be
used on other reservations?
Mr. Strand. No. In fact, that is being used on the other
reservations in Montana.
Senator Campbell. You mentioned the ones in Montana.
Mr. Strand. As I mentioned in my testimony, U.S. WEST sold
most of their reservation areas in their 14-State region, is my
understanding, across the West. Particularly when they sold
properties to cooperatives such as the ones I represent and
other cooperatives in Montana, Wyoming, North Dakota, South
Dakota and so forth, the reservations in those areas are seeing
the same kind of results that we have seen at Project.
Therefore, it is very important to differentiate the different
circumstances that exist on different reservations.
Some of the horror stories that you have heard today are
quite true, but with regard to other reservations, the
information that is available on the FCC Web site, for example,
is hopelessly outdated.
Senator Campbell. Ms. Edelman, I am sorry I did not hear
your spoken testimony, but looking through my notes here, you
mentioned the price of telecommunications equipment and a very
limited amount of Government grant money, only a few Tribes
getting benefits from these modest grants. What is the solution
to that, that we just try to put more money into the FCC for
the grant program?
Ms. Warren Edelman. I would say through some of the
programs that are working already that have a proven record.
make sure that they continue to be funded. And again, some of
those that I listed, that is just a partial list. The FCC does
need to have some funding I think for their tribal liaison to
be able to travel to Indian country, I think. You know,
assuming that Tribes are going to call in to get information it
is kind of a silly point, you know. There are no phones out
there to find out about that. Again, access on the Internet,
that is beside the point. There is no access.
Senator Campbell. Ms. Masten testified--she mentioned, I
heard her say something about three businesses on your
reservation have no phone service, which I cannot imagine,
running a business with no phone service in this day and age.
But do you have any information on businesses that have
succeeded or failed on reservations because of the access, or
lack of it, to phone service?
Ms. Warren Edelman. Just anecdotal information, things that
I have been told, basically things like, you know, our one
telephone line we have to use for a fax, and then we have to
use it to try to e-mail documents out to people. We cannot keep
up with the competition. Same kind of thing, if you want to
take it to another level with e-Government, and especially with
the Federal Government doing work with the Tribes and sending
funding applications and all that, you cannot do that if you do
not have access.
And the more we move towards e-Government, which sounds
fantastic for the rest of the country, the more we leave Tribes
behind, even for the basic grants and necessities that they
need, so it is a serious situation, but it is going to get
worse as the time goes on. I think the rest of the country
forgets that there are these corners of the United States that
are worse than Third World conditions. You need that
infrastructure in order to keep up and in order to prosper,
period.
Senator Campbell. Thank you, Mr. Chairman. I will wait for
another round.
Chairman Inouye. Mr. Strand, in your response to one of the
questions you said that the wireless may be dependent upon
electricity and battery and when there is a huge snowstorm it
might be tied up for hours, if not days, and therefore the
quality of service may not be the very best. How do they get
any service whatsoever if we take that attitude?
Mr. Strand. When you say ``they'' you mean Native
Americans?
Chairman Inouye. Yes.
Mr. Strand. I think when you asked earlier whether you were
correct on the ETC issue. You were sort of right and wrong.
When we have an Indian reservation that has terrible service
today and there is no wire line provider willing to provide
service, then absolutely wireless service has to be the next
step.
But when you have a reservation, for example, like the Crow
Reservation that already has 85 percent penetration and
improving, and the service quality is ten times better than
what they are going to be able to get from a wireless provider,
then the question becomes, what sense is there in designating a
second ETC to serve that area?
And of course, backup power is only one of the issues.
Congestion is another issue.
Chairman Inouye. Well, Crow has 85 percent. What about
Navajo?
Mr. Strand. I am not familiar with the Navajo Reservation.
I am only familiar with the Montana reservations.
Chairman Inouye. Well, according to numbers that are
provided to us, although it is said that adequate data is not
available, what little data we have would indicate that about
half the homes in Indian Country have no telephones, and less
than 30 percent have any access to Internet or computers. How
do we cope with that?
Mr. Strand. I absolutely agree that if there is no wire
line provider that is willing to provide service--that would be
the preference, because wire line service is going to give them
the high speed connection to the Internet. Wire line service is
going to give them reliability. Wireline is going to give them
redundancy. But if there is no wire line provider that is
willing to provide service, then wireless is their only
alternative.
Chairman Inouye. Well, we have been advised that it is not
fair to give wireless people the grants, universal service
grants because the cost is less than the wire line operators,
and if that is the case, we will never have service.
Mr. Strand. Allow me to explain. The wireless service costs
less than wire line service. However, wireless service is not
as robust as wire line service. We are talking about apples and
oranges.
Chairman Inouye. It may be apples and oranges, but in the
end it is communication, is it not?
Mr. Strand. In the end it is communication and as I have
said, where a reservation is served well by a wire line
provider, that is the preference. If there is no wire line
provider willing to provide service, then by all means a
wireless provider should be providing service there.
Chairman Inouye. Then you would say it is okay to have
wireless service go into Navajo land now?
Mr. Strand. I have no problem and never have had any
problem with wireless going into Navajo land.
Chairman Inouye. Any other place where you do not have wire
line services?
Mr. Strand. Right. If there is no wire line provider
willing to provide service, I have no problem with wireless
service.
Chairman Inouye. So you have no objection to the Yuroks
getting wireless service?
Mr. Strand. Absolutely none. I would like to see the Yuroks
get wire line service because I think it is so much more
robust, but not if there is nobody willing to provide it, and
my small 5,000-line company in Montana is probably not going to
go to Northern California.
Chairman Inouye. Mr. Stanton, what is your position on ETC,
the thing we have been discussing here? I am sorry I was not
here to listen to your testimony.
Mr. Stanton. I would be happy to respond, Senator. We view
our company to be deeply committed to providing services on
Native American lands. ETC is an indispensable part of that.
The ETC process is broken, in my view. The 1996 act was
intended to make services available, competitive services
available to all, as I understand it, and the ETC process
delegated to the States--excuse me, the act delegated to the
States responsibility in rural areas, where certainly within
Western Wireless's area all of the Native lands are in rural
areas, as defined by the Congress and the FCC.
We have suffered in many States--we applied 4 years ago in
14 States. There are still 2 States that have not acted upon
our ETC applications.
Chairman Inouye. In 4 years?
Mr. Stanton. There are a number of States--excuse me.
Chairman Inouye. How long, 4 years?
Mr. Stanton. Four years. As many as 4 years, and in
fairness, Senator, some States acted much more promptly.
In South Dakota, for example, it took us two round trips to
the State supreme court and Federal court in order to finally
get granted as an ETC in the State in rural areas. We have
continually been bombarded with requests, and I want to correct
a misstatement that you did not hear, Senator, but Senator
Campbell did, that in Montana we had a request for 465
different interrogatories, and I attributed it to Mr. Strand's
organization, and he corrected me, quite politely told me it
was not his company, ITA. It was instead MTA that made the 465
requests.
But the example still stands, that to get a relatively
simple request, to get 465 interrogatories over an application
to provide service is in my estimation ludicrous, but what it
does, I was saying to one of my lawyers this morning, it is
like the two guys in the woods with the bear coming, right,
that as a practical matter for us we have limited resources,
and when the bear is running through the woods, and the one guy
starts running off, and the other guy puts on his tennis shoes
and he says to his friend,I am putting on my tennis shoes
because I do not have to outrun the bear, I just have to outrun
you.
As a practical matter, what is happening is that the more
litigious independent telephone companies are chasing us out of
their jurisdictions and into jurisdictions where it is less
difficult.
Lastly, with respect to the FCC on tribal lands, we have
made applications, including in the Crow Reservation, where Mr.
Strand was taking about the great progress his wired company
has made, that has been pending for nearly 2 years at the FCC,
we have gotten the FCC's grant of ETC status on the Pine Ridge
Reservation in South Dakota, but it took a lot of litigation at
the State level, and then we had to reach an agreement with the
Tribe, which we did in our agreement which was signed in this
room 2 years ago, in order for us to finally get authority to
go in.
So the State, Federal, and litigation hassles are delaying
the implementation of service.
Chairman Inouye. I went to law school. Maybe we have too
many lawyers.
[Laughter.]
Mr. Stanton. I did not say that.
Chairman Inouye. Do you suggest any amendments to the law?
Mr. Stanton. I suggested a couple of things. Number 1, the
1997 amendment to the 1996 act, which I believe is section
214(e)(6)--someone behind me will correct me if I am wrong.
Someone behind you is nodding--was, as I understand it,
intended to clarify that on Indian lands that if the States did
not act, that the FCC was authorized to act, and it is my
understanding that the FCC views that to be unclear, at least
in some of the discussions we have had with the staff, the lack
of clarity slows down actions on Indian land.
Second, frankly, the delegation----
Chairman Inouye. How would you clarify it?
Mr. Stanton. Well, I am not a lawyer, but I would defer to
the FCC and your staff to provide the clarity. All I am
interested in is being able to get my applications processed
promptly.
Second, to either set standards or limitations in terms of
the amount of time to be considered, both at the State and
Federal level. As I have indicated we are waiting years in some
cases on applications that affect Indian and non-Indian lands
at the State level. They are being held up because of
litigiousness and manipulation of the process by the telephone
companies, but also, frankly, because of staffing and
prioritization decisions being made at the State level.
The Feds, the FCC is slow for reasons having to do with
their heavy work load, which is understandable, but if this is,
in truth, a priority, then there ought to be some deadline. I
cannot argue as to whether 6 months or 1 month is reasonable,
but frankly, Senator, I would be thrilled with 6 months, given
that some things are pending for as long as 2 years.
Chairman Inouye. I am not an expert on cell phones, but is
the service that bad in rural areas, as suggested?
Mr. Stanton. You know, I have spent my entire career doing
nothing but wireless communications, and we have provided--as I
indicated in my opening statement, my companies have built
systems in places like Haiti, Ghana, Ivory Coast, as well as in
rural America, as well as building the Voice Stream business
here in the United States, all businesses that I have had the
pleasure of cofounding. The quality of telecommunications
service is better.
If I may give you an example, last night I was at the
Willard Hotel. The data speeds in the hotel are between 14.4
kilobits per second, or 28.2, probably the same speeds you
would get at home. I connected my laptop to the Internet via
this card, and I got between--depending on the time, between 48
and 56 kilobits per second, two to three times that I would
have gotten if I had used the wired connection, just a simple
laptop computer. Moreover, whereas if you connect to a wired
line you are using that circuit, you are consuming that
circuit, if you will, for all of the time you are on your
laptop, so for example, if you want to respond to a message
while you are typing before you push the send button, you are
paying for the time.
With a packetized data services, which most wireless
companies have or are introducing, you have the ability to only
pay for the messages you deliver, and so for us, we have the
ability and have introduced services in rural and urban areas
that offer high-speed data services.
The quality is improving. The new services that are being
introduced by other carriers and by ourselves will eventually,
within a couple of years, offer 2 megabits per second. The
ability to offer one technology called 802.11--the marketing
people did not come up with that name--offers up to 11 megabits
per second.
I can respond to Mr. Strand's comments about reliability
and power consumption if you would like, but fundamentally the
quality of wireless service in my estimation can be whatever
the carriers are willing to invest. And if carriers are doing
things on the cheap, clearly if you do not have battery backup,
or if you only have battery backup in areas where there is a
weakness in the power grid, the system can go down.
Most of our sites where there is a weakness in the power
grid have generators, and we have generators with the ability
to provide power for long periods of time which in rural areas
unfortunately happens, and is unfortunately necessary.
Chairman Inouye. Any other suggestions on our laws?
Mr. Stanton. I guess the other suggestion I would make that
I made in my prepared comments really goes back to ensuring
that the systems that provide support are open and
nondiscriminatory. Many of the subsidies that support the wired
telecom network, with which I take no argument, are buried deep
in very complicated accounting systems, so when you say, we
subsidize rural areas, you may well be right, but it is very
difficult to get to what that number is.
Wireless is almost always, in areas below 10 people per
square mile, a more economic way of providing
telecommunications services. And as a consequence, if you go
into rural areas, and my company, Western Wireless, provides
service in the vast majority of areas within the continental
U.S. that have less than 10 people per square mile, you go into
rural areas and wireless economics almost always dominate wired
economics.
But what happens in Senator Dorgan's home town of Regent,
North Dakota, where we launched service, we were offering
service for about $15 a month. Our competing wired telephone
company was offering--I am sorry, the competing wired telephone
company, the company we competed against, was offering service
for about $15 a month. They were receiving subsidies embedded
in the system of over $180 per customer, per month.
Now, our costs are dramatically below that, and we can, for
probably about half to a quarter of their cost be able to
provide them services, but the subsidy systems are difficult to
figure out. There is an opportunity for consumers to get better
service, and for the Federal Government and industry to save
money by simply making those subsidies more apparent, making
them explicit, making them nondiscriminatory, and promoting
competition.
The last comment I will make, and I apologize for
monopolizing the microphone, Mr. Strand made, I thought, a very
impressive statement about the things that his company has done
on the Crow Reservation, and I was unaware of them, and I
applaud them, but fundamentally all consumers benefit from
competition. If you allow us to introduce service, I would
assert that we will make the competitors that we have in the
markets where we serve better. We will push them.
In Regent, North Dakota, for example, the competitor began
providing more service opportunities, more service offerings
after we launched our service, and I think what we have seen in
American industry is the introduction of competition almost
universally forces people to get better, and that is what I
think introduction of wireless on a fair and nondiscriminatory
basis can allow in telecom.
Chairman Inouye. Are you receiving universal services
subsidies in any of your operations?
Mr. Stanton. We are. We service between 12,000 and 13,000--
I cannot give you the exact number--fixed, what we call our
wireless residential service, WRS service, and in most of those
we receive either State and/or Federal subsidies in those
programs. But frankly that is only a small fraction of the
areas where we would like to provide service, and it is only
where we have been designated as an ETC, and where there are
universal service subsidies available.
Chairman Inouye. Thank you very much. Mr. Strand, do you
have any comment?
Mr. Strand. The only two points I guess I would make with
regard to a couple of statements Mr. Stanton made, number 1,
they do have generator backups for a lot of their tower sites
in Montana. Unfortunately, that does not do the customer any
good. That keeps the signal going out, but the customer at
their home has their hand-held device, or their wall-mounted
wireless device. That has a backup battery system that is
plugged into the wall. After 8 hours of standby it is done.
There is no more power. So the fact that there is a generator
at the tower site does not do the customer any good.
The other issue is with regard to Mr. Stanton's discussion
of all the interrogatories and discovery that has been
promulgated. Just to give you an example, when they filed their
application in Montana, they claimed to provide cellular
service across the State. As evidence of that they attached an
exhibit that took an 8\1/2\ by 11 piece of paper with an
outline of the State of Montana, and somebody had taken a black
marker and filled in the whole State.
That was the single piece of evidence to show that they
provided service throughout the State, and then they claim to
be surprised by all the interrogatories that are fired at them.
The State public service commission wanted to know, well, where
are your towers, where are your service areas, where are your
dead spots? You cannot just give us a map that has been colored
in with black marker and tell us that you serve the whole
State.
So those are the only two points that I would make. Thanks.
Chairman Inouye. Well, Mr. Day, you have started something
here. Do you have anything to add?
Mr. Day. Yes, sir, I do, and I appreciate the opportunity,
and again it goes back to Mr. Snowden's references to trust
responsibility, sovereignty, and especially Government to
Government.
The Federal Communications Commission convened a coalition
of cell phone representatives, their attorneys, State historic
preservation officers, and others to produce what is known as a
programmatic agreement on colocation towers, the installation
of additional antennas. There was not one single Indian
interest involved in that development of the programmatic
agreement.
We found out about it almost at the last second. We were
not even privy to the fact that it was going on till the last
second, and a number of the Tribes did provide comments on what
we were able to read, because we realized that they were
grandfathering in all of these towers that had been built
without adherence to section 106, and that they would not have
to go back in and resurvey or relicense. They could just go
ahead and stick these antennas up, although there would be in
many instances ground disturbances that would require a 106
survey.
That was rammed through the advisory council at its meeting
in Arkansas. I was told by a member of the advisory council
that the Indian comments were not only not included, they were
not allowed, and that became a programmatic agreement which is
affecting everybody in this country, and now the FCC has put
together another coalition of peoples, again State historic
preservation officers, attorneys for the cell phone companies,
cell phone company representatives, again, no Indians, on a
programmatic agreement on new locations, and how that will be
done.
And although we do have a stake in that, we have not been
included in any of these wonderful programmatic agreement
Committees, or whatever you wish to call them, and our
understanding further is that they intend to ram this new
programmatic agreement without our involvement through the June
meeting of the advisory council here in Washington, D.C., and
Senator, we beg and implore of you to please tell these people
to stop and desist until everybody is included, then we have
some voice in this, and this does not become another
programmatic agreement which shuffles us off to pre-Custer.
Chairman Inouye. Thank you. Senator Campbell.
Senator Campbell. Just a couple of closings, Mr. Chairman,
thanks.
Mr. Day, are there remedies now through the courts when
Tribes are not included in agreements locating towers or
anything of that nature on lands that may be in sacred sites
that are not on reservations? You mentioned there was no tribal
involvement or people asked to participate in that.
Mr. Day. Well, sir, at the risk of seeming to be facetious,
the impediment we have is the cost of attorneys. I literally
went around the circuit with my hat in my hand saying, can you
put a few dollars in so I can hire Gregg Smith over there to
represent us here.
Now, as you well understand, and well know, there are some
very wealthy Tribes here in the South and East, but there are
an awful lot of us who are still poor as Job's turkey, and the
fact of the business is that it takes money to go to court, and
it takes money to prosecute something successfully.
Now, we have offered--more than offered, please let us sit
down and work out something where it is mutually beneficial to
everyone, and that we do not have this strife, and we hear that
they are wanting to work with Indians. Fine, I am offering,
hey, here I am. I volunteer. I can give you a few more, that
gentleman sitting right there by you, I believe they would work
with you, too.
We happen to believe, wrongly or rightly, as we tell
archaeologists, we are human, too. We are not your specimens
anymore, and we would like to be treated--you asked, Senator,
what would you ask of the Government and had that wish, I would
ask one simple thing for Indian people: respect.
Senator Campbell. Thank you, Mr. Day. Certainly your words
are well taken by anybody who is close to the Indian community,
but aside from that, the question of land line phones versus
cellular phones, that has been an interesting discussion, Mr.
Chairman. I am not an engineer, so I do not certainly pretend
to understand a lot of the variable things, but I kept
wondering in my own mind if there are not some common threads.
The Navajo reservation, the Crow Reservation came up a
number of times, and I have been on both of them a lot of
times, a lot. My dad was in Crow Agency Boarding School, and I
lived near the Navajo Reservation now, and they have several
similarities. One is that neither one have many--maybe none,
14,000-foot peaks as we do in Colorado, that makes some real
complications with cell phones, even though they are making
terrific progress.
I can remember 5 years ago there were many places in
Colorado I could not use one. Now there are very few places
that I cannot, unless I am right in the middle of some of those
peaks, so that is one commonality.
The other is that they both have proximity to pretty good
size towns on one part of the reservation, Hardin and Billings
for the Crow, and Gallup for the Navajos, and another one is,
they both have interstates that go through the reservations. I
think it is Interstate 90, if I am not mistaken, that would be
Crow, and I forgot whether it is 40 or something through the
Navajo Reservation, and you probably do not have this, and it
is kind of a rhetorical question, but I would think that
because they are also very large, in the millions of acres,
that some places land line phones would seem to me more logical
to use. In other places, cellular phones would be more logical
to use, too.
I just throw that out without asking for a question. It
just seems to me that there are places for both. Clearly, as
Ms. Masten mentioned, there are some places you have to build
roads to get the towers, and you have to make a lot of land
changes, and a lot of Indian people are somewhat suspicious
about those land changes, too, but I would just say the way
technology is improving, there is hopefully going to be room
for both that are going to help the lives of Indian people
throughout the Nation with each passing year.
Thank you, Mr. Chairman. I have no further questions, and
thank you for appearing today.
Chairman Inouye. I thank all of you for your patience in
being with us. Mr. Snowden, my apologies to you. I realize you
are a liaison officer, and you do not make policy here, but I
just wanted you to convey certain messages to the FCC, and I am
certain you will.
Mr. Snowden. I appreciate the opportunity, Senator.
Chairman Inouye. All of you, thank you very much.
[Whereupon, at 12:15 p.m., the Committees adjourned.]
APPENDIX
Prepared Statement of Hon. Tim Johnson,
U.S. Senator from South Dakota
I want to thank Chairman Inouye and Chairman Hollings for holding
this important Joint Indian Affairs and Commerce Committee hearing on
Telecommunications Issues in Indian Country. As those of us who
represent large Native American populations know, it is imperative that
we do more to address the needs of Indian Country to create a level
playing field for all our citizens.
I am pleased we have the opportunity today to address a significant
problem facing many Native Americans--the lack of reliable, affordable
telecommunications services. The vast majority of Americans take their
telephone service for granted. When they need to call their neighbor, a
relative living half way across the country, or 911, their telephone
service is there. That isn't the case for all Native Americans.
Unfortunately, market conditions contain few incentives for private
sector investment in basic infrastructure on reservations. Meanwhile,
we spend much of our time here in Washington debating how to deploy
exciting new technologies to our communities, while neglecting the
basic needs of so many of our residents. Basic phone service isn't a
cutting-edge topic, but all Americans deserve basic telephone service.
I am pleased that the Committee understands our responsibility to
address current inadequacies, and to work together with the private
sector to create conditions that make deployment of telecommunications
to rural areas a win-win situation for everyone.
I'm pleased by the diverse panel we will hear from today. I
especially look forward to Mr. John Stanton's testimony as it relates
to Western Wireless' investment in the Pine Ridge reservation in South
Dakota.
______
Prepared Statement of M. Teresa Hopkins,
Vice-President, IndigeTEC, Inc.
SITE SPECIFIC MARKET ANALYSIS:
There are several ways to approach a solution to the dilemma of
``connectivity'' within Tribal Communities. There is a need for a
specific focus on discussing tribal governmental telecom policy
initiatives that involve development and sustainable funding. The
potential regulatory hurdles, security and interference issues and the
need for ubiquitous coverage are severely magnified on Indian
reservations.
As part of the federal trust responsibility to tribes, U.S.
wireless carriers need more attractive market--based federal incentives
to enable public wireless access in Indian Country in a manner that is
sensitive to the users' locations and data needs. Quite understandably,
U.S. wireless carriers use business models that leverage broad coverage
wireless data offerings in densely populated areas. These business
models are antithetical to Indian Country, i.e. increased spending by
the existing subscriber base will improve profitability. In response to
the need to deploy in the fiercely competitive wireless market, there
are now many small wireless participants working to deploy in strategic
locations, in what basically amounts to a ``land grab'' of unconnected
hotspots. The Navajo Nation, with over 25,000 square miles in the Four
Corners Area, is one of these hotspots.
Within one to two years, I expect the ``land grab'' phase will be
over and one of two things will happen: the mid-sized players will
consolidate to create a national or regional footprint or one of the
larger aggregators will corral the smaller carriers under one extremely
anti-competitive umbrella. In the meantime, the federal government must
ensure that each wireless players' business model is responsive to the
needs of grassroots native communities and provide companies an
incentive to see the value of investing in what are some of the most
unique low penetration markets in the world.
RECOMMENDATIONS:
Basic, terrestrial and further exploration of affordable,
supportable, and sustainable broadband wireless solutions
should be examined. In most cases, a tribal policy and tribal--
based telecom planning and deployment initiative should be made
available to tribes that determine entry into network service,
perhaps in combination with common carrier services.
Other tribes with a small land bases may consider service
enhancements and upgrades by agreement with the various service
providers.
Tribal telecom planning funding should be made available to
include costs for assessment, business planning/modeling, and
engineering. Funds for planning and development would include
packaging, loan development and business development options.
Tribal Colleges, in the collective, should develop a
training model whereby staff, can attend and learn network
support skills, applications, and distance education methods;
this might include Microsoft certification for advanced
networking support and the like.
Training should be supported via distance education tools as
well as provide for onsite training options to tribal
participants.
A component for development, research, and engineering
should be developed, to include a tribal legal review
component. This is important to ensure what is proposed
technically or engineering wise, meets the standard for legal
operation under fully developed tribal telecom policy or
utility codes. In theory, this will provide technical
assistance for tribal legal code development, enforcement, and
implementation.
To develop opportunities for tribal community networking and
incorporating tribal technology centers; training or courseware
can be for credit or noncredit; develop community networking
models; and earned income strategies for individuals, coops,
and community development corporations located and serving
Indian reservations.
Develop a federal coordinating council for existing federal
grants to ensure there is a leveraging impact of existing
federal programs; explore allowing federal dollars to be used
as a match for reservation areas in other than 93-638
exceptions in the amendments.
Delineate tax credit benefits under IRS rules to include
incentives for telecom providers to establish facilities,
networks, and services on Indian reservation land areas, and to
create jobs associated with deployment plans.
Develop a policy and evaluation workgroup to report on
various activities supported by Congress and appropriate
federal agencies.
Reevaluate the subsidies and incentives for technology that
are provided either through the states or the federal
government. You probably will find that very little of these
subsidies actually go back into infrastructure for Native or
rural communities on reservation lands. There still is little
effort to connect ``the last mile''.
Address the unresolved issue of sovereignty and tribal
rights to telecom resources including spread spectrum.
Examine the issue of tribal rights to unused military
spectrum or excess spectrum.
______
Narragansett Indian Tribal Historic Preservation Office
Wyoming, Rhode Island, May 10, 2002
Hon. Daniel Inouye,
Senate Committee On Indian Affairs,
Washington, DC .
FOR THE RECORD: Need For Sect. 106 Consultation Between FCC &
Tribes On Celltowers
Asco Wequassin (Greetings), Senator Inouye:
The Narragansett Indian Tribe is a member nation of the United
South and Eastern Tribes. The *core ancestral territory of the
Narragansett Indian Tribe is now known as the state of Rhode Island. As
Tribal Historic Preservation Officer and a Tribal Councilman of the
Narragansett Indian Tribe, it is with great concern that I address the
issue of cell tower development policies and the government-to-
government consultations between Indian Tribal Nations and the Federal
Communications Commission (FCC). Indian Tribal sites of significant
ancestral cultural resources, sacred sites and sacred landscapes have
been under increased threat from sacrilege and destruction caused by
cell tower construction excavation.
Pursuant to Section 106 of the National Historic Preservation Act,
the FCC, as the federal licencing agency with oversight in the
development and use of cell towers, has the responsibility to consult
with Federally Recognized and Acknowledged Indian Tribes regarding the
protection of these sites from such sacrilege and destruction by
cellular carriers and their cell tower developers.
For the past several years, it has been our experience that the FCC
has stood aloof from the task of exercising its consultation and
regulatory responsibilities in this crisis. FCC has allowed cellular
carriers to operate as though FCC had the right to delegate and had, in
fact, delegated its government-to-government consultation and
permitting responsibility to the cellular carriers themselves. Under
the guise of such ``consultation'', cellular carriers have hired
environmental consulting firms to minimally and crudely address the
protections afforded by Section 106 to Tribal sacred and significant
sites. The 24 Federally Recognized Tribes of the United South and
Eastern Tribes, with ancestral lands east of the Mississippi, have been
bombarded with thousands of letters from the ``environmental
scientists'' of these consulting firms. These environmental scientists
demand sacred site information with no Federal policy in place to
protect that information from misuse and abuse.
The letters have often demanded such timetables as ten day
information turnarounds with the expectation that beyond their
arbitrary time frames their clients are free from Tribal concerns
regarding proposed site excavations. The Narragansett have only begun
to truly assess the the degree of sacrilege and destruction to our more
remote ancient sites caused by the rapid gearing up and onslaught of
the early years of cell tower development.
The Narragansett, apparently, do have the good fortune of being in
the smallest of the United States where cell tower proliferation is a
Tribal issue. As a result, changes for the good can quickly take hold.
Sacred and significant site defense stategies which were honed in the
Culture and Heritage Committee of the USET under the chairmanship of
Bill Day have begun to stem the tide of cell tower sacrilege and
destruction against our precious and non-renewable sites of ancient
heritage.
In Rhode Island, cellular carriers have begun to acknowledge
that gathering site information from the Narragansett should be
done in a manner that respects our sovereign status, our oral
history tradition, and the amount of work necessary to
facilitate the research requests of carriers and developers.
This is not the case in the majority of the other 23 USET
Tribal ancestral territories.
In Rhode Island, where warranted by Tribal knowledge of areas
of ancient sensitivity, the carriers and their tower developers
have begun to institute archaeological investigations to
confirm the immediate presence or absence of sites to be
avoided. Further, they employ our on-site monitoring of the
archaeological investigation within the excavation footprint of
the tower compound and access road as the means to best protect
areas of concern from inadvertant acts of sacrilege and
destruction. This is not the case in the majority of the other
23 USET Tribal ancestral territories.
In Rhode Island, the carriers and their developers have
acknowledged that our oral history research, archaeological
scope of work advice and monitoring services, now, merit
compensation as just another one of the many tower development
services. This is not the case in the majority of the other 23
USET Tribal ancestral territories.
*(This has not been the case in those parts of Massachusetts
and Eastern Connecticut where the Narragansett have Tribal
ancestral territories.)
These small shifts toward the positive have been the exception, not
the rule, in the experience of the majority of the 24 USET Tribes in
the Northeast, Eastern and Southern United States.
The majority of cell tower developers operate as though they are
immune from even the ``delegation'' of the FCC's Section 106
consultancy responsibility with Indian Tribes. Only a very small
percentage of the cellular towers currently in existence have been
erected with any consideration at all for the need to exercise
protocols that protect the sacred and culturally sensitive localities
of the Native Nations from sacrilege, damage and destruction. What has
America needlessly and irrevocably lost in the bargain?
The Narragansett Indian Tribal Historic Preservation Office
(NITHPO), on behalf of the Narragansett Indian Tribe, vigorously
supports Bill Day, Chairman of USET's Culture and Heritage Committee,
in his call for the FCC to consult with Indian Tribes regarding the
establishment of protocols for formalizing the role of Indian Tribes in
the safeguarding of our sacred sites, sacred landscapes and other
cultural sites of significance from wanton destruction by continued un-
monitored cell tower construction.
Clearly, under Section 106 of the National Historic Preservation
Act, the Advisory Council on Historic Preservation regulations thereof,
and the active policy for government-to-government consultations with
Indian Tribes, the Federal Communications Commission has the
responsibility to consult, negotiate and enter into an agreement to
resolve these issues with the 24 Federally Recognized and Acknowledged
Tribes of the United South and Eastern Tribes (USET).
Tau-botdan-tamock Wut-che Wa-me (We are giving thanks for all
things).
John Brown,
Tribal Historic Preservation Officer,
Narragansett Indian Tribe.
cc: Sen. Reed, Sen. Chafee, Rep. Kennedy, Rep. Langevin
______
Prepared Statement of Richard Watkins,
General Manager, Cellular One
Thank you Mr. Chairman and Members of the Committee on Indian
Affairs and The Communications Subcommittee of the Senate Committee on
Commerce, Science and Transportation for this opportunity to submit
testimony on the issues addressed at today's hearing.
My name is Richard Watkins. I am the general manager of Cellular
One of Northeast Arizona. I am the chief operating officer of the
company's cellular and PCS operations. I have lead responsibility for
the filing and management of the company's applications for designation
as an eligible telecommunications carrier (``ETC'').
I. Background
Our company is licensed by the FCC to provide cellular and PCS
services to rural areas within Arizona, New Mexico, Colorado, and Utah.
We have served Arizona and New Mexico for over 10 years and have
recently acquired licenses to serve the other two states. Our service
area includes the Navajo Nation, the Hopi Tribe, the White Mountain
Apache and the Pueblo of Zuni.
In April of 1999, we applied for ETC status in Arizona. That
application was finalized on May 15, 2001 and on June 1, 2001 we
commenced providing a new service on the Navajo and White Mountain
Apache tribal lands, called VisionOne TM, which provides
residents with telephone service for a monthly access fee of $1. Our
service permits local calling throughout our network, which currently
covers over 15,000 square miles and is increasing as we construct
additional cell sites in newly acquired areas. In addition to 911
service, we also provide customers with a long list of health,
educational and other community organizations which can be called toll
and air time free at any time.
In April of 1999, we applied for ETC status in New Mexico. That
application is expected to be finalized in early June, 2002 and we plan
to commence providing VisionOne TM service on the Zuni lands
on June 15, 2002. Our service offering will be identical to what we
have in place in Arizona.
We have recently acquired PCS licenses to expand our service on
reservation lands, and have filed, or plan to file soon, applications
to extend our ETC service in New Mexico, Arizona and Utah.
II. Without ETC for Competitors, There Will be No Service on
Reservation Lands Any Time Soon
Incumbent carriers would have the Committee believe that their
networks provide customers with the only acceptable level of service.
We disagree.
In the first year since being designated as an ETC in Arizona, we
have signed up over 17,000 new customers, most of which have never
before had telephone service. In most of these areas, wireline service
is available. Today these people can take advantage of the basic
telephone functions that the rest of the country takes for granted.
The barrier to telephone service is economic--plain and simple.
Before enhanced Lifeline benefits were available, we marketed a
lifeline-type service that was priced at $10 per month. That offering
failed in the marketplace because the price was simply too high. With
enhanced Lifeline, our VisionOne TM offering has been an
enormous success, and telephone penetration levels in our service areas
have increased dramatically.
Since October of 2000, incumbents have had the benefit of enhanced
Lifeline and Link-Up benefits adopted by the FCC, but with few
exceptions, they have never actively marketed low cost service to the
Indian communities they serve. It is therefore time for everyone to
agree that incumbent carriers have generally failed to deliver service
to Native American communities. Only now, when the prospect of
competition has arisen, have incumbent carriers even started to
acknowledge that they can do more. In those few areas where incumbents
have successfully increased telephone penetration, competitive entry
will not harm them, and will only help consumers.
The enhanced Lifeline and Link-Up benefits now available to all
eligible carriers are excellent tools to increase telephone penetration
levels on reservation lands. We ask Congress to make those tools
available to competitive carriers who see untapped markets instead of
people that don't generate substantial vertical service revenues.
Unless the ETC process is reformed to encourage competition, the number
of people without telephone service will not decline.
III. The ETC Application Process
As evidenced by the fact that our applications in Arizona and New
Mexico took two and three years, respectively, to be granted, it is
apparent that the process for obtaining ETC status is seriously flawed.
Neither Congress nor the FCC ever intended for applicants to be
subjected to a process that amounts to a barrier to entry for all but
the most persistent applicants. The standard for obtaining ETC status
is rather simple--a carrier must meet the nine point checklist of
services
provided by the FCC, and in rural areas it must demonstrate that a
grant would be in the public interest.
There is little argument that wireless carriers meet the checklist.
In no case that I'm aware of has the checklist been a significant point
of litigation simply because wireless carriers do provide, or can
provide, each of the checklist items on their existing networks today.
Whether the public interest would be served is an entirely
different matter. Incumbent carriers would have state commissions
believe that only when an incumbent wireline company can't possibly
serve an area should a wireless alternative be considered to be in the
public interest. What they want is to retain their monopoly over both
their services and government subsidies supporting those services.
Congress commanded state agencies to grant ETC status to
competitive carriers. The FCC implemented its Congressional mandate by
enacting rules which make very clear that ETC status is to be granted
in a competitively neutral and technologically neutral fashion. That
more than one carrier may compete for customers has long been found to
be in the public interest. That more than one carrier might be
subsidized was intended by Congress when it said in Section 254(b)(3)
of the 1996 Act:
Consumers in all regions of the Nation, including low-income
consumers and those in rural, insular, and high costs areas,
should have access to telecommunications and information
services, including interexchange services and advanced
telecommunications and information services, that are
reasonably comparable to those services provided in urban areas
and that are available at rates that are reasonably comparable
to rates charged for similar services in urban areas.
It is beyond dispute that in many rural areas, especially Native
American tribal lands, access to services reasonably comparable to
those provided in urban areas is not being provided today. If this
provision is to have any meaning, high cost support must be made
available to competitive carriers in a technologically and
competitively neutral fashion.
We call upon the Congress to reform the ETC application process so
that incumbent carriers can no longer turn what should be a relatively
simple process into a multi-year litigation. On Native American lands,
and on near reservation lands, Congress can clarify Section 214(e)(6)
of the Act to empower the FCC to make such grants, and command the FCC
to do so within six months of application.
IV. The Payment of Subsidies to Competitive Carriers is Appropriate
Incumbent carriers distort the high cost subsidy program when they
claim that a competitive wireless carrier is paid more than the
incumbent. In fact, the opposite is true. The high cost ioop support
program pays incumbent carriers' costs are on a ``per line'' basis.
When a competitor enters the market, it is required to accept the ``per
line'' subsidy paid to the incumbent, notwithstanding that the
competitive carrier has far fewer lines. In most cases, the competitive
carrier is under compensated, and will be for a substantial period of
time until it obtains enough customers to cover its costs.
The FCC is the expert agency charged with seeing to it that the
high cost loop funds available in the universal service program are
properly spent. The agency continues to monitor and review this
important issue--and has a Federal-State Joint Board on Universal
Service to advise it in this regard. The incumbents do not seek to work
with the FCC to more accurately target funds so that the program
remains solvent in the long term, but instead they are spending all
their efforts seeking to shut off the flow of funds to wireless
carriers altogether.
Congress must permit the FCC, which is the agency charged with
managing the universal service program, to carry out its mission. There
is absolutely no record evidence that the FCC is failing in this
regard. How much high cost support the government should provide to
rural areas can and should be debated. But for now, the Congress has
mandated that high cost support be provided to more than one monopoly
carrier in rural areas and that mandate should be carried out for the
public's benefit.
V. The Quality of Service Provided by Wireless Carriers is More Than
Sufficient
We have heard incumbents raise fears that wireless networks
experience, for example, network congestion, cell site outages, short
back up battery life, that will somehow cause Native Americans to get
``substandard'' telephone service. To this we ask, compared to what?
Compared to no service?
We obviously cannot comment on the quality of service being
provided by other carriers throughout the country, wireless or
wireline. From our perspective, we believe that our service is superior
to wireline service, however one has to look at it not from the
wireline perspective but from the customer's.
To give one example, incumbents argue that a wireless phone battery
may die and a customer would not be able to make an emergency call.
This is true. It is also true that if a house catches fire a customer
with a mobile phone can run outside and call for help. In short, if a
customer values a wireline phone more, then they will choose the
wireline phone. On the other hand, if a customer believes that it is
more valuable to have a mobile phone so that it is available whenever
and wherever an emergency strikes, then that customer may choose the
wireless alternative. While we believe that mobility alone gives a
wireless phone far more utility in an emergency, our point is that each
alternative has its strengths, and it is the customer who should be
able to decide what's best. It should not be imposed by an incumbent
monopoly.
With respect to overall quality, we have constructed our network to
provide customers with first rate service. In addition, the provision
of high cost support funds will enable us to improve our network in
ways that would never be possible without such funding. We have
substantially advanced our timetable for cell site construction,
addition of channel capacity, and our digital upgrade. Within the next
two years, we will introduce wireless high speed internet access which
will be competitive with wireline networks. We believe that just the
prospect of this happening will induce incumbents in our area to
respond by rolling out competitive offerings, all to the customer's
benefit.
VI. Enhanced Lifeline and Link-Up Benefits Should be Extended to Near
Reservation Lands
In 2000, the FCC announced that enhanced federal Lifeline and Link-
Up benefits would be made available to all qualifying persons living on
Native American Reservations and on Near Reservation lands which have
been designated by the Bureau of Indian Affairs (``BIA'') without
regard to race. Shortly thereafter, the FCC announced that it was
suspending its decision, primarily because it was discovered that the
BIA had designated areas such as Phoenix, Las Vegas, and several other
large cities as Near Reservation lands. Limiting Lifeline and Link-Up
benefits to only Native Americans on Near Reservation lands is not a
good option because it would likely be unsustainable under the Supreme
Court's Adarand decision, which makes race classifications in federal
programs subject to strict scrutiny by federal courts.
We suggest legislation that would require the FCC to undertake a
two pronged analysis to determine eligibility for enhanced Lifeline and
Link-Up benefits. First, the area must be within a county that has a
population density lower than 100 persons per square mile. Second, the
subscriber's billing address must be within 50 miles of a Native
American reservation. We suggest using the billing address because it
is what the FCC uses to determine a mobile subscriber's location for
purposes of determining eligibility for universal service benefits. See
47 C.F.R. Sec. 307(b). We believe that this proposal will include the
vast majority of Native Americans living in underserved areas near our
nation's reservations.
Such a qualification is race-neutral and serves the purpose of the
federal Lifeline and Link-Up program. Most low income individuals
living in major cities have more service options than people living in
rural areas. Adding benefits to people who are served by multiple
carriers and have significantly more choices than persons living in
rural areas would not be a productive use of government resources.
Congress can provide for the rare instance where a Native American
tribe is located within a densely populated county by permitting the
FCC to waive the rule for good cause shown.
Conclusion
Wireline companies have attempted to force a wireless competitor
seeking ETC status to prove that its network is complete and free of
any defect, as defined by the incumbent. To this we respond as follows:
The high cost support program was enacted to encourage development of
service in remote areas. The program has never required landline
companies to complete their networks before being eligible to receive
high cost funding. In fact, without high cost support, most wireline
companies would not have constructed lines to a substantial portion of
the high cost areas even today.
It should be obvious that without high cost support there is no
business plan which supports infrastructure deployment (wireline or
wireless) to substantially all of the high cost areas of the country.
Congress commanded the FCC to encourage competitive choice in these
areas through the use of ETC status. It is now time, after 6 years of
experience, to recognize that changes must be made to encourage
competitive entry.
The enhanced Lifeline/Link-Up benefits implemented by the FCC on
reservation lands are an essential element in increasing telephone
penetration and have an been an excellent use of government resources
to the public's benefit. By refining the statute, this nation's
telephone penetration rate can increase even more. We have proven in
Arizona that enhanced Lifeline/Link-Up can make dramatic improvements
and we are certain it can happen throughout this country.
Once again, I thank you for this opportunity to submit this
testimony.