Sec. 8. Directing the Commission to engage in rulemaking proceedings for broadband development on Tribal lands
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The purpose of this section is to require the Commission to initiate and complete separate rulemaking proceedings under subsections (c), (d), and
(e)to provide additional clarification for the deployment and buildout of telecommunications, broadband, and wireless services and other full use of spectrum over Tribal lands and Hawaiian Homelands, including existing reservations, landless Indian Tribes, noncontiguous land holdings, uniquely situated Indian Tribes, and Hawaiian Home Lands. For each of the rulemakings listed under subsections (c), (d), and (e), the Commission shall initiate or complete each step according to the following timeline: Consultation shall be initiated not later than 6 months after the date of the enactment of this Act. Advisory agency memoranda shall be issued not later than 12 months after the date of the enactment of this Act. Notices of Proposed Rulemaking shall be issued not later than 18 months after the date of the enactment of this Act. Orders promulgating final rules shall be issued not later than 24 months after the date of the enactment of this Act. The Commission shall initiate and complete a rulemaking proceeding to best determine how to conduct robust, interactive, pre-decisional, informative, and transparent consultation with Indian Tribes and Native Hawaiian organizations in order to obtain free, prior, and informed consent prior to the approval of, and before adopting administrative measures that affect Tribal lands, or other associated Tribal resources. Prior to initiating such proceeding, the Commission shall also engage with the FCC Native Nations Communications Task Force, qualifying Tribal entities, Native-owned telecommunications providers, and Tribal organizations with telecommunications expertise. The primary goal of the rulemaking under paragraph
(1)shall be to determine how the Commission can best establish a binding agency policy for Tribal consultation for policy development and agency action to provide proper notice and guidance, introduce mapping tools, provide robust outreach, and make government-to-government training accessible to Indian Tribes and Native Hawaiian organizations to preserve and develop spectrum rights and spectrum access over Tribal lands, and to expedite the immediate deployment of wireless broadband services, other wireless services, or other full use of spectrum over Tribal lands for critical government services, national emergencies, natural disasters, or life-saving services. In conducting the rulemaking under paragraph (1), the Commission shall engage with Native Hawaiian organizations, and appropriate authorities of the State of Hawaii, to identify and designate potential existing entities within the State government of Hawaii, and the Native Hawaiian organizations or the community, for standing as licensable entities for the purpose of spectrum licensing rights and spectrum over the Hawaiian Home Lands. The Commission’s Tribal consultation meetings shall be made open to the public and subject to reasonable and timely notice published in the Federal Register, and through other appropriate public methods, not later than 30 days prior to the scheduled meeting. The Commission shall make additional considerations for adequate notification to Indian Tribes, Native Hawaiian organizations, and interested qualifying Tribal entities, that lack telecommunications services on Tribal lands. Open and public Tribal consultation and appropriate notice and outreach to Indian Tribes, Native Hawaiian organizations, and interested qualifying Tribal entities shall be presented during each of the additional rulemakings prescribed in this section. The Commission shall conduct each such additional rulemaking in accordance with the rules for consultation issued by the Commission in the rulemaking under paragraph
(1)of this subsection. The Commission shall initiate and complete a rulemaking proceeding to streamline applications to expedite funding (including through the Commission’s funding opportunities and other funding opportunities that may be available through other agencies) on Tribal lands for buildout of telecommunications, broadband, and wireless services, or other full use of spectrum or infrastructure development over Tribal lands for critical government services and national emergencies. In the rulemaking under subparagraph (A), the Commission shall establish within the Office of Native Affairs and Policy
(ONAP)of the Commission the position of Federal Funding Director. The Director shall have the following duties: To coordinate with Indian Tribes, Native Hawaiian organizations, and interested qualifying Tribal entities to access the Commission’s funding opportunities, or other funding opportunities that may be available through other agencies, and assist with the application processes for the Tribal Broadband Fund and other universal service support mechanisms. To coordinate with other Federal agencies that provide telecommunications and infrastructure funding to Indian Tribes, Native Hawaiian organizations, or interested qualifying Tribal entities to assist with expedited wireless broadband service and other telecommunications deployment over Tribal lands. The Commission shall initiate and complete a rulemaking proceeding to establish a new Tribal Spectrum Market. Such market shall be an optional forum solely for the participation of Indian Tribes, qualifying Tribal entities, and Native Hawaiian organizations to engage with other Indian Tribes, qualifying Tribal entities, and Native Hawaiian organizations for leasing and assignment opportunities for the purpose of economic and business development on Tribal lands for participants who choose to participate. Participation in such market shall not disallow Indian Tribes, Native Hawaiian organizations, or qualifying Tribal entities from participating in any other auction forum, or hinder their participation in secondary markets. In furtherance of the Federal trust responsibility, Tribal self-governance, and to develop robust economic resources on Tribal lands, the Commission shall make all unwanted spectrum over Tribal lands available to other Indian Tribes, Native Hawaiian organizations, and qualifying Tribal entities through the Tribal Spectrum Market and notify other Indian Tribes, Native Hawaiian organizations, and interested qualifying Tribal entities identified under subsection
(c)through adequate notification processes established under this Act. Participants identified under this subsection must provide written consent to the Commission to make their unwanted spectrum over Tribal lands available to other Indian Tribes, Native Hawaiian organizations, or qualifying Tribal entities through the Tribal Spectrum Market. Participants that are not identified under subsection (d)(2)(B) above shall not be eligible to participate in the Tribal Spectrum Market. The Commission shall initiate and complete a rulemaking proceeding to address unique land status on Tribal lands and associated undefined geographic areas of interest, including— spectrum that is not geographically defined due to spectrum propagation characteristics; and with respect to the build or divest process under section 6(a), questions over control of meteorological spectrum licenses over Tribal lands. The Commission shall initiate and complete a rulemaking proceeding to create licensing areas for Indian Tribes, Native Hawaiian organizations, and qualifying Tribal entities to provide spectrum licenses covering areas that are primary Tribal areas of interest, including noncontiguous land holdings, small or uniquely situated Indian Tribes, and undefined Tribal lands or undefined Hawaiian Home Lands. Such proceeding shall also address deployment of digital services and other full use of spectrum over Tribal lands, including spectrum development, infrastructure, and deployment of wireless broadband service and other wireless services for landless Indian Tribes or Native Hawaiian communities. The Commission shall initiate and complete a rulemaking proceeding to review the interrelationship between spectrum usage on Tribal lands and spectrum usage in areas contiguous to Tribal lands, including— Indian Tribes’, Native Hawaiian organizations’, and qualifying Tribal entities’ ability to make wireless services available to Tribal members who reside in areas just outside the boundaries of Tribal lands; and interference issues with neighboring licenses. The Commission shall, in consultation with the Secretary of Defense and the Secretary of Commerce, initiate and complete a rulemaking proceeding to develop a nationwide framework for spectrum management and coordination that— addresses— the relationship of spectrum over Tribal lands to spectrum used by the Federal Government, including the Department of Defense; and the relationship of spectrum over Tribal lands to international laws and negotiations relating to the use of spectrum, including international exclusion zones; and provides for the requirements of this Act relating to spectrum over Tribal lands to be administered pursuant to existing policies and procedures for spectrum management and coordination. In carrying out section 6(a) (relating to the build or divest process), the Commission shall do the following: Where an existing third-party licensee has satisfied the applicable construction requirements for a license over Tribal lands, yet the area that the license covers remains underserved, the Commission shall initiate and complete a rulemaking proceeding to determine an additional construction requirement for the Tribal lands of large, land-based Indian Tribes to expedite service and immediate broadband and telecommunications deployment or other full use of spectrum over Tribal lands. Subject to section 6(a), the Commission shall consider additional timelines on an ad hoc basis through Tribal consultation with the Indian Tribe or Native Hawaiian organization in which the third-party licensee possesses a valid spectrum license over Tribal lands. Considerations of any modified timelines must be made with the adequate consent of the Indian Tribe or Native Hawaiian organization. The Commission shall initiate and complete a rulemaking proceeding to identify the licensed and unlicensed spectrum bands that are available for deployment of services over Tribal lands as defined under this Act, including existing reservations, landless Indian Tribes, noncontiguous land holdings, uniquely situated Indian Tribes, and the Hawaiian Home Lands. In carrying out subparagraph (A), the Commission shall— hold field hearings initiated with adequate notice; establish and make public specific processes to identify available spectrum bands over Tribal lands; and submit an analytical report to Congress to be made available to Indian Tribes, Native Hawaiian organizations, and associated Tribal entities identified under subsection (c)(1). The Commission shall initiate and complete a rulemaking proceeding to establish expedited buildout requirements for existing third-party licensees that hold a license over Tribal lands. These new buildout requirements shall preempt buildout requirements established before the date of the enactment of this Act. The purpose of the establishment of these new buildout requirements is not intended to revoke spectrum licenses from third-party licensees, but to ensure that development of telecommunications networks or other full use of spectrum over Tribal lands is expedited to deploy critical government services, provide access to life-saving resources, and establish currently nonexistent communication for national emergencies over Tribal lands to match the average coverage rates for fixed broadband services on non-Tribal lands or the nearest metropolitan area. In strict compliance with Tribal consultation and notice procedures established under subsection (c), the Commission shall, in conjunction with the Secretary of the Interior or the heads of other participating Federal agencies, initiate and complete a rulemaking proceeding to issue nonbinding, model regulations for grants of rights-of-way over Tribal lands for the potential development of telecommunications infrastructure. If the Commission, the Secretary of the Interior, or the head of another participating Federal agency initiates and completes an aforementioned rulemaking proceeding without pre-decisional, informative, and transparent Tribal consultation, as specified under subsection (c), it shall be invalid guidance considered nonbinding precedent on any subsequent decisions. Any model regulations issued under subparagraph
(A)shall include analysis of right-of-way buildout proposals and broadband deployment generally as it relates to Indian Tribes, Native Hawaiian organizations or communities, and Tribal lands, including the following: Permitting and review process generally, including land use permitting and facilities siting. Review processes and robust, interactive guidelines in compliance with the National Environmental Policy Act of 1969 ( 42 U.S.C. 4321 et seq. ), including small-cell infrastructure. Review processes and guidelines in compliance with division A of subtitle III of title 54, United States Code (formerly known as the National Historic Preservation Act ( 16 U.S.C. 470 et seq. )), including small-cell infrastructure. Potential damage to sacred sites and heritage sites on or near Tribal lands. Additional considerations and analysis for Indian Tribes, Native Hawaiian organizations, and Tribal lands with respect to the impacts of expedited permitting decisions and buildout requirements for broadband projects or other future development of telecommunications infrastructure or spectrum development over Tribal lands and deployment of new generation networks, with an emphasis on 5G networks generally. Procedural proposals on how to best establish robust Tribal consultation between Indian Tribes and Native Hawaiian organizations and the Commission, and other associated Federal agencies, for the development of optional rights-of-way for broadband deployment, spectrum use or development, or telecommunications infrastructure.
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Sec. 8
Directing the Commission to engage in rulemaking proceedings for broadband development on Tribal lands
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