Sec. 6. Existing spectrum licenses and spectrum over Tribal lands
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An Indian Tribe, Native Hawaiian organization, or qualifying Tribal entity may initiate the build or divest process for an existing third-party licensee that held spectrum license rights for spectrum over Tribal lands of the Indian Tribe or Native Hawaiian organization as of the date of the enactment of this Act in a geographic area where that existing third-party licensee has satisfied the applicable construction requirements for the spectrum licenses over Tribal lands, yet has not built out to the undeveloped, unserved, or underserved Tribal lands within its license area as of the date of the enactment of this Act.
The Indian Tribe, Native Hawaiian organization, or qualifying Tribal entity where the spectrum over Tribal lands is located may file a Notice of Intent with the Commission to initiate the build or divest process to expedite reversion of the third-party licensee spectrum license rights over the aforementioned Tribal lands to make available the unused or unneeded license rights to the Indian Tribe, Native Hawaiian organization, or qualifying Tribal entity. The Notice of Intent requires the Commission— to include written notification to the Indian Tribe, Native Hawaiian organization, or qualifying Tribal entity of the date on which third-party licensee’s notice of construction permit fulfillment was filed with the Commission demonstrating that the third-party licensee satisfied its final construction requirement for the license where the underserved Tribal lands are located; if the third-party licensee has met applicable construction requirements but Tribal lands within the spectrum license remain unserved or underdeveloped after the Indian Tribe, Native Hawaiian organization, or qualifying Tribal entity files the Notice of Intent, to terminate the third-party licensee’s rights over such Tribal lands after a 1-year time period, with such spectrum licenses reverting back to the Indian Tribe or Native Hawaiian organization in perpetuity where the Tribal lands are located; and to permit the third-party licensee to opt out of the build or divest process, after the Indian Tribe, Native Hawaiian organization, or qualifying Tribal entity has filed the Notice of Intent, by partitioning or relinquishing its spectrum license to the Commission, which shall subsequently relicense the spectrum licenses over the Tribal lands in perpetuity to the Indian Tribe, Native Hawaiian organization, or qualifying Tribal entity, pursuant to this Act and the requirements pursuant to the Communications Act of 1934 ( 47 U.S.C. 151 et seq. ).
If the existing third-party licensee has not satisfied the applicable construction requirements for the spectrum for which it holds licenses over Tribal lands on the date on which the Indian Tribe, Native Hawaiian organization, or qualifying Tribal entity files the Notice of Intent, the spectrum license rights over Tribal lands where the spectrum is located will automatically be made available to the Indian Tribe or Native Hawaiian organization. The license of any third-party licensee that has failed to extend coverage on the underserved Tribal lands from 1 year from the date that the Commission accepted the third-party licensee’s notice of construction permit fulfillment to the date of the enactment of this Act shall immediately expire, including all rights to the spectrum licenses.
The Commission shall then immediately reassign the spectrum licenses for the Tribal lands so that the licenses shall immediately revert to the Indian Tribe or Native Hawaiian organization where the spectrum is geographically located. The applicable construction requirements above are subject to any additional construction requirements determined by the Commission applicable to Tribal lands after the date of the enactment of this Act. The Commission may make additional considerations to expedite the build or divest process prior to the 1-year expiration period where the geographic coverage area of the spectrum license on Tribal lands is under duress to deploy broadband or telecommunications services or for the purpose of access to life-saving services, critical government services, national or State emergencies, natural disasters, or in other circumstances where deemed appropriate.
Congress, Secretary of the Interior, or another executive branch office or agency that is delegated authority over Indian affairs or oversees programs impacting Indian Tribes may also request that the Commission make additional considerations to expedite the build or divest process on Tribal lands where the coverage area of the spectrum license is under duress to expedite deployment of services. For purposes of this subparagraph, a geographic area on Tribal lands that is considered to be under duress shall include an area on Tribal lands where there has been a substantial loss of or existing threat to human life, the Federal Government or State government has declared an emergency, a natural disaster has occurred or will occur, or there is a need for critical government services.
Other timelines shall be considered to elongate the timeline to the 1-year expiration period with the consent of the Indian Tribe or Native Hawaiian organization where a longer time period is needed for special geographic or population needs. The Commission shall consider additional timelines on an ad hoc basis through consultation with the Indian Tribe or Native Hawaiian organization over the Tribal lands of which the third-party licensee possesses a valid spectrum license. Considerations of any modified timelines must be made with the written consent of the Indian Tribe or Native Hawaiian organization.
Additional considerations may be made by the Commission where existing technical rules are insufficient or circumstances are present to unnecessarily restrict types of services that may be deployed within the Tribal lands with the consent of the Indian Tribe or Native Hawaiian organization. The Commission shall, at the request of Indian Tribes or Native Hawaiian organizations, conduct specific rulemaking proceedings where service-specific technical issues arise under this subsection.
Where third-party spectrum licenses have been authorized and the Indian Tribe, Native Hawaiian organization, or qualifying Tribal entity can show that the third-party licensee entered into negotiations or auctions or secured assignment of an existing spectrum license over Tribal lands in bad faith, the Indian Tribe, Native Hawaiian organization, or qualifying Tribal entity shall have an opportunity to secure the Indian Tribe’s or Native Hawaiian organization’s access to such spectrum licenses.
The Indian Tribe, Native Hawaiian organization, or qualifying Tribal entity where the spectrum is located may file a Notice of Intent with the Commission to initiate the failure to negotiate in good faith exemption process under this subsection to expedite reversion of the spectrum license rights over Tribal lands and make available the spectrum license rights to the Indian Tribe, Native Hawaiian organization, or qualifying Tribal entity over the Tribal lands or Hawaiian Homelands where it is located such spectrum license rights to such Indian Tribe, Native Hawaiian organization, or qualifying Tribal entity.
The Notice of Intent can be filed at any time during the license term, provided that the filing Indian Tribe, Native Hawaiian organization, or qualifying Tribal entity can demonstrate that the third-party licensee failed to negotiate in good faith in previous dealings before the filing of the Notice of Intent. An Indian Tribe, Native Hawaiian organization, or qualifying Tribal entity may demonstrate the third-party licensee failed to meet the good faith negotiation requirement through the totality of the circumstances standard in presenting the case of the Indian Tribe, Native Hawaiian organization, or qualifying Tribal entity to the Commission.
In demonstrating that the third-party licensee negotiated in bad faith, the Commission shall evaluate whether the negotiations were made in good faith through the totality of the circumstances standard. The relevant factors to determine whether the third-party licensee failed to negotiate in good faith are to include the following objective elements of negotiation standards: The third-party licensee must have appointed a negotiating representative with authority to bargain on partitioning and spectrum licensing issues.
The third-party licensee must have agreed to meet at reasonable times and locations with adequate notice. The third-party licensee must not have acted in a manner that would unduly delay the course of negotiations. The third-party licensee must not have put forth an unreasonable, unilateral proposal or further demonstrated an unwillingness to consider alternative reasonable terms or counterproposals. Bargaining without consideration of reasonable alternatives is inconsistent with an affirmative obligation to negotiate in good faith.
The third-party licensee must have showed good faith in negotiations through implementing or concluding action within a reasonable time period with reasonable notice and forum requests that are standard for negotiating practices. This standard is also applicable to any proposed forum requests by either party. Indian Tribes, Native Hawaiian organizations, and qualifying Tribal entities availing themselves of this process can also make a showing that the third-party licensee had reasonable notice or understanding that the Indian Tribe, Native Hawaiian organization, or qualifying Tribal entity did not have the financial means to fulfill the third-party licensee’s expedited timing or change of forum requests or that extenuating circumstances existed that prohibited reasonable conduct to execute negotiations.
The Indian Tribe, Native Hawaiian organization, or qualifying Tribal entity that is responding to an offer proposed by the third-party licensee must also provide reasons and consideration for rejecting aspects of the third-party licensee’s offer in writing. The Commission may make additional considerations for unreasonable behavior or egregious behavior for the totality of the circumstances standard under this subsection to determine whether a party negotiated in bad faith. Where a third-party licensee that holds a license to use spectrum over Tribal lands and has failed to meet additional construction requirements determined by the Commission under section 6(a)(5), a safe harbor exemption may apply to the third-party licensee, if such licensee has deployed coverage to at least 90 percent of the geographic area over the Tribal lands within its license coverage area.
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Sec. 6
Existing spectrum licenses and spectrum over Tribal lands
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