Sec. 5. Access to spectrum over Tribal lands
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Any spectrum licenses over Tribal lands for any purpose shall not be subject to any Tribal auctions executed by the Commission. No licenses over any Tribal lands for the use of spectrum over Tribal lands shall be subject to any Tribal priority filing windows or auctions executed by the Commission. No spectrum licenses over Tribal lands shall be subject to any secondary market opportunities or post-market opportunities, including license partitioning, spectrum leasing, or assignment to any third party or other entity.
Spectrum licenses over Tribal lands shall not be subject to competitive bidding under section 309(j) of the Communications Act of 1934 ( 47 U.S.C. 309(j) ) from the date of the enactment of this Act. At the discretion of an Indian Tribe or Native Hawaiian organization, after the date of the enactment of this Act, new contracts may be established with third-party licensees, qualifying Tribal entities, or other Indian Tribes or Native Hawaiian organizations to assign or lease spectrum over the Indian Tribe’s or Native Hawaiian organization’s respective Tribal lands.
At the request of an Indian Tribe, Native Hawaiian organization, or qualifying Tribal entity, the Commission shall ensure that any new contracts entered into from the date of the enactment of this Act must ensure that the Indian Tribe or Native Hawaiian organization retains permanent spectrum rights over the Tribal lands where the spectrum is located. The associated terms and duration of any contract to assign or lease an Indian Tribe’s or Native Hawaiian organization’s spectrum to a qualifying Tribal entity, third-party licensee, or other Indian Tribe or Native Hawaiian organization must meet the following minimum requirements and conditions to implement a valid contract for spectrum use over Tribal lands:
If an agreement is reached, all parties involved must execute a written agreement that sets forth the terms and conditions of the agreement. Fair market value of the spectrum license or deployment of telecommunications or wireless services must be negotiated in good faith. Rates must be calculated subject to inflation costs for the time duration specified under the agreement. Negotiations must be entered into and conducted in good faith, requiring that an Indian Tribe, Native Hawaiian organization, qualifying Tribal entity, or third-party licensee responding to an offer proposed by the requesting party must provide reasons for each rejection of a negotiated offer in writing.
The party entering into contract negotiations with the Indian Tribe or Native Hawaiian organization must have the financial capacity to fulfill its requirement to deploy transactional services on the Tribal lands where the spectrum licenses are located and the ability to meet its construction requirements. Any qualifying Tribal entity, Native Hawaiian organization, other Indian Tribe, or third-party licensee who does not receive the written consent from the Indian Tribe or Native Hawaiian organization where the spectrum is geographically located is barred from subleasing, assigning, or subcontracting the spectrum licenses over Tribal lands.
If this is breached, such spectrum licenses shall automatically revert to the Indian Tribe or Native Hawaiian organization for new negotiations and the existing contract shall be deemed terminated. A contract to assign or lease spectrum licenses to be operated over Tribal lands between the Indian Tribe, Native Hawaiian organization, qualifying Tribal entity, or third-party licensee may not extend past a 5-year time period, after which the Indian Tribe, Native Hawaiian organization, or qualifying Tribal entity may review the negotiated terms with the third-party licensee and choose to either— terminate the contract or assignment of such spectrum licenses, which shall automatically revert to the Indian Tribe where such spectrum licenses are geographically located; renegotiate the terms of such contract with respect to such spectrum licenses over Tribal lands; or extend the existing contractual terms of such spectrum licenses over Tribal lands for an additional 5 years, or a fair and reasonable amount of time.
In the event of premature termination of a contract for assignment or lease of spectrum over Tribal lands, the spectrum licenses shall automatically revert to the Indian Tribe or Native Hawaiian organization for new negotiations and the existing contract shall be deemed terminated. Penalties for breach of contractual agreements or premature termination of a contract shall be enforced by imposing a fine of 5 percent of the gross amount incurred, or projected amount to be incurred, from the negotiated rate of the spectrum licenses by the breaching party, to be assessed by the Commission and available as a source of funds for the Tribal Broadband Fund.
If the breaching party participates in egregious behavior, or a clear showing is made that a party failed to negotiate contractual terms in good faith, it shall be subject to a 5-year penalty prohibiting the party from participating in any contract for spectrum licenses over Tribal lands, participation in the Tribal Spectrum Market, or additional penalties that the Commission sees fit to protect Indian Tribes’ or Native Hawaiian organizations’ telecommunications resources. In the case of a breaching party that is an Indian Tribe or Native Hawaiian organization, the penalty under this clause shall not apply with respect to spectrum over its Tribal lands of such Indian Tribe or Native Hawaiian community.
This section is subject to additional requirements or other terms and conditions as the Commission determines necessary to protect the interests of the Indian Tribe and Native Hawaiian community, or as determined necessary through subsequent rulemaking subject to the Tribal consultation requirements under section 8(c).
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Sec. 5
Access to spectrum over Tribal lands
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