Written by Leslie Wheelock
The Federal Communications Commission (FCC) and the US Department of Agriculture, Rural Utilities Service (RUS) are responsible for implementing the programs that provide funding for rural broadband. Two recent Government Accountability Office (GAO) reports note that lack of fair data collection methods as well as lack of tribal input and feedback have made tribal access to such broadband funding extremely difficult or impossible. In both reports the GAO provided recommendations to remedy these hurdles. Both reports and their recommendations are set forth below.
The first GAO report, entitled “Broadband Internet: FCC’s Data Overstate Access on Tribal Lands,” (GAO-18-630) was released on September 7, 2018, and examined issues associated with carrier-provided data measuring broadband access on Tribal lands and the impact the overstating of available broadband has on broadband deployment across Indian Country.
In this report the GAO found that the FCC collects broadband availability data from broadband providers, but its method for collection of that data does not accurately or completely capture broadband access – the ability to obtain service – on tribal lands. The GAO recognized the FCC’s definition of “available” creates the opportunity for the FCC to overstate fixed broadband availability on tribal lands by allowing providers to: (1) count an entire census block as served if only one location has broadband, and (2) report availability in blocks where they do not have any infrastructure connecting hoes to their networks. Additionally, when reporting on broadband access on tribal lands, the FCC does not collect information on factors that both the FCC and tribal stakeholders have identified as affecting broadband access, including affordability, service quality and service denials. The FCC utilizes the collected broadband availability data to create the National Broadband Map.
The GAO highlighted that the FCC, in its 2010 National Broadband Plan, identified the need for the federal government to improve the quality of data regarding broadband on tribal lands, and recommended that the FCC work with Tribes to ensure that any information collected is accurate and useful. In this September report, the GAO found insufficient tribal outreach from the FCC, insufficient FCC support of tribal efforts to build technical expertise concerning broadband issues, and no formal process to obtain tribal input on FCC broadband data.
Finally, the GAO noted that the FCC has abdicated its government-to-government role with tribes by requiring that providers receiving funds to serve tribal lands meaningfully engage with Tribes and discuss broadband deployment planning. GAO noted that the FCC had done little follow up on this requirement since issuing guidance on the requirement in 2012, and has taken limited steps to obtain any feedback from this request. GAO noted that both Tribes and providers identified failed attempts to engage with the other.
- The FCC develop and implement methods – such as a targeted data collection – for collecting and reporting accurate and complete data on broadband access specific to tribal lands. [It was reported to Congress that the FCC agreed with this recommendation and stated that it is exploring methods to collect more granular broadband deployment data.]
- The FCC develop a formal process to obtain tribal input on the accuracy of provider-submitted broadband data that includes outreach and technical assistance to help Tribes participate in the process. [It was reported to Congress that the FCC agreed with this recommendation and stated that it will work with stakeholders to explore options for implementing such a process.]
- The FCC obtain feedback from tribal stakeholders and providers on the effectiveness of FCC’s 2012 statement to providers on how to fulfill their tribal engagement requirements to determine whether FCC needs to clarify the agency’s tribal engagement statement. [It was reported to Congress that the FCC agreed.]
In addition to the GAO recommendations, it is important to recognize that RUS is proposing utilizing the FCC’s National Broadband Map (created from the compiled broadband availability data), together with its own mapping data, to identify areas of the United States that are eligible to participate in the $600,000,000 e-Connectivity Pilot for which regulations are currently being crafted.
The second GAO report, entitled “Few Partnerships Exist and the Rural Utilities Service Needs to Identify and Address and Funding Barriers Tribes Face,” (GAO-18-682) was released on September 28, 2018, and examines the use of partnership arrangements between Tribal entities – Tribal governments and telecommunications providers owned by Tribes – and other entities, and their impact on broadband funding and deployment across Indian Country.
In this report, the GAO found that partnership arrangements between Tribes and other entities to increase broadband deployment on tribal lands are not widespread. It is important to note that ALL the examples of partnership arrangements provided in this GAO report arose out of funding available from USDA’s Rural Utility Service (RUS) and NTIA under programs authorized by the American Recovery and Reinvestment Act of 2009 (Recovery Act).
GAO stated that during its review, it did not find ANY partnership arrangements that leveraged currently available federal funding from the FCC’s Connect America Fund (CAF) or RUS’s Community Connect Program. Although not stated in this report, it is clear that there will be no partnership arrangements that benefit Tribes absent the availability of higher levels of financing and the prospect that partnership applications are viewed more favorably when distributing that financing. As a result, this GAO report continued by looking at current tribal options independent of partnership efforts.
The GAO report identified the two primary barriers Tribes may face with seeking federal funding for broadband deployment as: (1) the statutory requirement for Eligible Telecommunications Carrier (ETC) designation for CAF funding and (2) grant application requirements of the RUS programs.
The FCC’s Connect America Fund is the largest source of federal funding for broadband deployment in unserved and underserved areas. But only ETCs are eligible for CAF funding; and there are only 11 Tribes that have providers designated as ETCs. Between 2012 and 2017, the FCC received nine ETC applications, four of which were from tribally owned providers – but only one tribally owned provider was designated as an ETC. Additionally, during the same 5-year period, GAO found that only 14 tribal entities received federal funding to increase broadband deployment from the FCC and RUS combined.
RUS does not require that applicants for RUS funding be ETCs. However, with regard to the RUS Community Connect Grant Program, the Tribes have multiple concerns:
The language included in the grant applications is difficult to understand.
- The administrative requirements are burdensome.
- The time between grant announcement and submission deadlines is not long enough to prepare the required application materials.
- The required submission of existing and proposed network diagrams requires funding of engineers and consultants – expenses a tribe may not be able to cover.
- The requirement to demonstrating financial sustainability within 5 years is not feasible – the period is more like 15 years.
- The requirement that Tribes provide at least 15% matching funds from non-federal sources is also a complete show stopper for some Tribes.
As a result of the above concerns, and after finding that RUS has not taken steps to identify or address the barriers Tribes face when applying for RUS grant funding, GAO recommended that RUS undertake an assessment to identify any regulatory barriers that may unduly impede efforts by Tribes to obtain RUS federal grant funds for broadband deployment on tribal lands and implement any steps necessary to address the identified barriers. When GAO asked RUS officials about the feasibility of undertaking such an assessment, RUS has stated it has limited resources and multiple competing purposes for those resources.
It is important to recognize that, although finding fault with the FCC’s ETC requirement, the GAO did not include a recommendation to Congress that a statutory workaround be crafted for the FCC’s ETC requirement that would allow tribes to access CAF funding.
 The FCC defines “available” as whether the provider does – or could, within a typical service interval or without an extraordinary commitment of resources, provide service to at least one end-user premises in a census block. This definition allows service providers to report broadband availability by census block but can consider the census block to be “served” even if only one household in the block has service available to it – or even worse, if the provider doesn’t currently serve anyone in the block but could do so within a “typical service interval” and without “an extraordinary commitment of resources.”
 FCC, Connecting America: The National Broadband Plan (Mar. 16, 2010).
 In the Matter of Connect America Fund, Report and Order and Further Notice of Proposed Rulemaking, 26 FCC Rdc 17663 (2011).
 United States. Cong. Senate Committee on Indian Affairs. Oversight Hearing on “GAO Reports Relating to Broadband Internet Availability on Tribal Lands” October 3, 2018. 115th Cong. 2nd sess. Washington: GAO-19-134T (Statement of Mark Goldstein, Director, Physical Infrastructure Issues).
 RUS-18-TELECOM-0004-0001, 83 Fed. Reg. 35609 (2018).
 See, 47 CFR 54.201 – Definition of eligible telecommunications carriers, generally.