A PAPER ON

SPECTRUM ACCESS IN INDIAN COUNTRY

BY NATIVE PUBLIC MEDIA

IN PARTNERSHIP WITH THE

Samuelson-Glushko Technology Law & Policy Clinic

2009

JULIE PENNER

BHAVIN PAREKH
 FOREWORD

Since December 2004, Native Public Media has explored, researched and commented on the

topics of telecommunications policy as it affects Native Americans. NPM’s involvement

highlights the federal government’s trust responsibility to federally recognized Tribes, provides

new insights on technologically complex and politically sensitive issues, and illuminates

understanding about the impact of telecommunications policies upon Native Americans.

In Spring 2009, Native Public Media entered into a partnership with Colorado Law School’s

Samuelson-Glushko Technology Law and Policy Clinic. This relationship combines Indian

Law expertise with technology policy analysis. The result is Native Public Media’s first Paper

on Spectrum Access in Indian Country. In the words of its student authors, Julie Penner and

Bhavin Parekh, this project is the first step toward raising awareness of spectrum issues in Indian

Country and -- perhaps just as important -- stimulating additional discussion regarding other

spectrum policies in Indian Country. While there are a host of spectrum issues the students

could have studied, Penner and Parekh narrowed their investigation to three areas: (1) spectrum

needs in Indian Country; (2) a proposed exemption concerning spectrum utilization of the 3650

MHz band; and (3) relaxed power limits in unlicensed spectrum for certain rural areas of Indian

Country.

We are deeply grateful for the guidance, support, expertise and counsel of the Native

Public Media Policy Advisors who gave their time generously throughout this project. They are:

• Geoffrey Blackwell, Chickasaw Nations Industries

• John Crigler, Garvey Shubert and Barer
• Sascha Meinrath, New America Foundation
• Carol Pierson, National Federation of Community Broadcasters

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 Finally, this Paper is only the beginning of a wider discussion on spectrum issues in Indian

Country. The Paper’s proposals and ideas would benefit greatly from the comments and

feedback of Native Americans (ranging from those who have relatively good Internet access to

those who do not), Tribal governments seeking ways to deploy broadband on tribal lands so that

their members can benefit from the technology, and others who care about advancing

communications in Indian Country. More broadly, further analysis is needed concerning factors

that hinder spectrum-based broadband deployment and adoption in Indian Country, such as

funding, computer and Internet training, and access to computers. Accordingly, we encourage

readers to engage us with comments and suggestions.

Loris Ann Taylor Brad Bernthal

LorisTaylr@aol.com Brad.Bernthal@Colorado.Edu
Executive Director Associate Clinical Professor
Native Public Media Colorado Law School
Samuelson-Glushko
Technology Law & Policy Clinic

3
 EXECUTIVE SUMMARY

Indian Country is being left behind in the transformation to a digitally accessible society.

This Paper focuses upon spectrum policy issues as part of a larger discussion concerning how

tribal communities can get improved broadband connectivity. To be sure, rural tribal areas

would benefit tremendously from access to distance learning, tele-health, and tele-commuting

opportunities as well as tools for culture and language preservation. High-speed access is also

increasingly crucial for tribes in order to apply for federal funding to facilitate basic services. A

central question for policy-makers, however, is how to achieve and promote broadband access

and penetration for Native Americans.

As the FCC has explained in its Statement of Policy on Establishing a Government-to-

Government Relationship with Indian Tribes (excerpted directly below this Executive

Summary), the United States’ trust relationship with Tribes creates a special fiduciary obligation

to support and assist Tribal economic development and self-sufficiency. Thoughtful

communications policy from the Federal Communications Commission is an important aspect of

discharging this obligation. As the FCC focuses on how to promote broadband in Indian

Country, this Paper proceeds in three parts with a focus on spectrum issues.

First, communities in Indian Country have a unique opportunity to utilize wireless

transmission as a means to provide robust broadband services to their vastly underserved tribal

lands. Tribally owned and operated service providers like the Navajo’s Internet of the Hogan

and the Tribal Digital Village offer important lessons for other tribal communities interested in

proving broadband services to their communities.

Second, until the wireless industry develops unrestricted contention-based protocols for Wi-

Max, the FCC should allow case-by-case exemptions for use of the entire 50 MHz in the 3650-

4
3700 band with restricted protocol devices in rural areas like tribal lands where the additional

spectrum would have high value.

And third, increasing power limits in unlicensed bands can increase the range of wireless

access thereby decreasing the cost of providing Internet services to tribal communities. The FCC

should extend power limits for increased transmitter power for devices operating in already

existing unlicensed bands like 900 MHz, 2.4 GHz, and 5 GHz band in rural tribal communities.

Higher power limits should 1) require registration to a public database, 2) require the higher

power limit user to resolve interference with lower power limit users, and 3) employ some type

of contention based protocol to minimize interference.

5
 EXCERPT

Statement of Policy on Establishing a Government-to-Government

Relationship with Indian Tribes
Federal Communications Commission
Adopted June 8, 2000

The [Federal Communications] Commission recognizes the unique legal relationship that
exists between the federal government and Indian Tribal governments, as reflected in the
Constitution of the United States, treaties, federal statutes, Executive orders, and numerous court
decisions. As domestic dependant nations, Indian Tribes exercise inherent sovereign powers
over their members and territory. The federal government has a federal trust relationship with
Indian Tribes, and this historic trust relationship requires the federal government to adhere to
certain fiduciary standards in its dealings with Indian Tribes. In this regard, the Commission
recognizes that the federal government has a longstanding policy of promoting tribal self-
sufficiency and economic development as embodied in various federal statutes.

The Commission also recognizes that the Federally Recognized Indian Tribe List Act of
1994, makes a finding that the federal government has a trust responsibility to and a government-
to-government relationship with recognized tribes. Therefore, as an independent agency of the
federal government, the Commission recognizes its own general trust relationship with, and
responsibility to, federally-recognized Indian Tribes. The Commission also recognizes the rights
of Indian Tribal governments to set their own communications priorities and goals for the
welfare of their membership.

The Commission hereby reaffirms its commitment to the following goals and principles.
The Commission will:

1. Endeavor to work with Indian Tribes on a government-to-government basis consistent with

the principles of Tribal self-governance to ensure, through its regulations and policy
initiatives, and consistent with Section 1 of the Communications Act of 1934, that Indian
Tribes have adequate access to communications services.
2. In accordance with the federal government’s trust responsibility, and to the extent
practicable, will consult with Tribal governments prior to implementing any regulatory action
or policy that will significantly or uniquely affect Tribal governments, their land and
resources.
3. Strive to develop working relationships with Tribal governments, and will endeavor to
identify innovative mechanisms to facilitate Tribal consultation in agency regulatory
processes that uniquely affect telecommunications compliance activities, radio spectrum
policies, and other telecommunications service-related issues on Tribal lands.
4. Endeavor to streamline its administrative process and procedures to remove undue burdens
that its decisions and actions place on Indian Tribes. As administrative and organizational
impediments that limit the FCC’s ability to work with Indian Tribes, consistent with this
Policy Statement, are identified, the Commission will seek to remove those impediments to
the extent authorized by law.
5. Assist Indian Tribes in complying with Federal communications statutes and regulations.

6
6. Seek to identify and establish procedures and mechanisms to educate Commission staff about
Tribal governments and Tribal cultures, sovereignty rights, Indian law, and Tribal
communications needs.
7. Work cooperatively with other Federal departments and agencies, Tribal, state and local
governments to further the goals of this policy and to address communications problems,
such as low penetration rates and poor quality services on reservations, and other problems of
mutual concern.
8. Welcome submissions from Tribal governments and other concerned parties as to other
actions the Commission might take to further the goals and principles presented herein.
9. Incorporate these Indian policy goals into its ongoing and long-term planning and
management activities, including its policy proposals, management accountability system
and ongoing policy development processes.

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 TABLE OF CONTENTS

I. OVERVIEW……………………………………………………………………….....................3
II. SPECTRUM NEEDS IN INDIAN COUNTRY………………………………………………...5
A. Tribal Communities Have Unique Needs for Broadband Access………………........5
B. Prioritizing Spectrum Access for Tribes……………………………………....……..6
C. Wireless Best Practices in Tribal Communities……………………………....……...7
1. Willingness to Innovate…………………………………………………………...8
2. Benefits of Tribal Ownership………………………………………………..........9
III. PROPOSED RESTRICTED DEVICE EXEMPTIONS IN THE 3650-3700 MHZ BAND…..11
A. The Non-Exclusive License and the 3650-3700 MHz Band……………………......11
B. History of the 3650 Band…………………………………………………………...12
1. Figure 1. Map of Protection Zones for FSS Services…………………………...14
2. Figure 2. Map of Indian Reservations in the Continental US…………………..15
C. Current Rules for Operation in the 3650 MHz Band……………………………….18
1. Figure 3. The 3650 MHz Band at a Glance…………………………...………....18
D. Economic and Efficiency Considerations…………………………………………..19
E. Proposed Changes to the 3650 Band Order…………………………………………21
F. Potential for Delayed Development of Unrestricted Contention-Based Protocol…..21
IV. PROPOSED CHANGES TO WIRELESS POWER LIMITS IN UNLICENSED
SPECTRUM……………………………………………………………………………...……22
A. History of Power Regulations in Unlicensed Spectrum………………………...…..22
B. Why Unlicensed Spectrum Use Makes Sense in Indian Country………………......24
1. Figure 4. Performance Metrics for Selected Wireless Networking Standards......25
C. Proposed Changes to Part 15 Rules for Unlicensed Spectrum Use………………...26
D. Consideration for Other Licensed and Unlicensed Users………………………......29
V. FURTHER RESEARCH………………………………………………………………...……30
A. Connecting Tribal Communities to Fiber Backhaul…………………………..........30
B. Spectrum Inventory for Possible Future Development…………………………......31
C. Licensed Spectrum Access through Secondary Markets…………………………...32
VI. CONCLUSION………………………………………………………………………..............33
VII. APPENDIX…………………………………………...…………………………………....….35
A. Tribal Digital Village Overview………………………………………………....…35
B. Tribal Digital Village Cluster Topology……………………………………………35
C. Tribal Digital Village Success………………………………………………….......36
D. Representation of the 3650 Band…………………………………………………...37
E. Amount of Available Unlicensed and Licensed Spectrum under 3GHz……….......37

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I. OVERVIEW

This paper explores the spectrum policies and technologies that could be used to create

greater broadband connectivity for tribal communities. In particular, rural tribal communities

face additional challenges in connecting to the Internet. Ultimately, the paper seeks to suggest

worthy and attainable policy reforms that will help more tribal communities cross the digital

divide.

This paper is limited in scope to wireless issues related to Indian Country. Tribal

communities are exceedingly different. The FCC stated in its docket on extending wireless

services to tribal lands, “[T]ribal lands may vary significantly with regard to population density,

terrain, and other such buildout factors which can affect the feasibility of building out facilities

on tribal lands and account for the lack of service.”1 No one solution will meet the needs for all.

Some communities are fortunate to already have broadband access by virtue of location,

population, resources, or some other factor, but many communities are still exceedingly

underserved if served at all. Rural tribal communities are especially challenged to get access to

the Internet, and while this paper is intended to address tribal communities generally, portions

will address rural tribal communities specifically.

Communications policy in Indian Country is a challenge that implicates a diverse array of

business, cultural, economic, and regulatory issues. Against this backdrop, this paper focuses on

spectrum policy. While the capacity of wireless broadband is more limited than that of many

wireline alternatives, notably fiber, it has the potential to reach many users at a much lower cost.

Additionally, wireless technology is still evolving. The wireless technologies of tomorrow could
1
Extending Wireless Telecommunications Services to Tribal Lands, WT
Docket No. 99-266, Third Report and Order, 19 FCC Rcd. 17652 (2004)
(hereafter “TLBC Report & Order”) at ¶ 8.

9
provide significantly more capacity. However, wireline, satellite and other broadband

technologies are a critical part of the consideration of how to provide broadband to tribal

communities. In particular, the design of any broadband network should consider the lowest-

cost solution in each unique circumstance because the trade-offs between cost, feasibility, and

bandwidth will vary greatly between communities and even between individuals within

communities.

Broadband is a hot topic amongst regulators and consumers across the country. While urban

areas are by and large saturated with broadband access, rural communities are lagging behind.

The federal government is increasingly proactive in taking steps to help rural communities close

the gap.2 The passage of the American Recovery and Reinvestment Act of 2009 devotes $7.2

billion dollars for broadband projects and programs. The broadband stimulus package will be

administered by the Rural Utility Service (RUS) and the National Telecommunication and

Information Administration (NTIA).3 More than half of the funds, $4.7 billion will be used to

establish the Broadband Technology Opportunities Program (BTOP) to be awarded to broadband

projects in unserved and underserved areas.4 The RUS has an additional $2.5 billion dollars to

distribute as grants, loans, and loan guarantees on projects focused on serving rural areas.5

This paper proceeds in three parts. The first part outlines the unique need for spectrum in

Indian Country and details some best practices for spectrum use. The second part outlines a

policy change in the 3650-3700 MHz band to increase access to spectrum for tribal communities

2
This paper does not seek to answer the question of how broadband infrastructure projects
can or should be funded. The variety of programs, grants, and loans available are numerous and
evolving and outside of the scope of this paper.
3
Stephanie Cordon, CNET NEWS, Stimulus Bill Includes $7.2 Billion for Broadband, Feb. 19,
2009, available at: http://news.cnet.com/8301-13578_3-10165726-38.html.
4
Broadband Technology Opportunities Program Website, available at:
http://www.ntia.doc.gov/broadbandgrants/.
5
Stephanie Cordon, supra note 3.

10
in rural areas. The third part discusses proposed increases to power limits in unlicensed

spectrum. The paper concludes with a discussion of the further research needed on spectrum in

Indian Country.

II. SPECTRUM NEEDS IN INDIAN COUNTRY

A. Tribal Communities Have Unique Needs for Broadband Access

Tribal communities, especially those in rural areas, have critical needs for access to

broadband. Tele-commuting, tele-health, and distance learning are all evolving to meet the

needs of rural communities. Rural communities in Indian Country are no exception. The Navajo

Nation is one example of how broadband connectivity can be used by rural tribal communities.

Navajo President Joe Shirley, Jr. said in 2006, ““Everywhere across our lands people are using

this technology to take distance education classes, e-commerce, communicate with family and

friends….Many of my people are getting bachelor degrees, even masters degrees, at home.”6

Beyond their typically rural nature, tribal communities have unique connectivity needs. For

example, tribal communities can benefit from cultural preservation tools Internet access holds.

One tribal-owned ISP in Southern California called Tribal Digital Village states that a goal of the

project is “the preservation of the tribal community and culture, particularly native languages

utilizing technology.”7 The President of the Navajo Nation also found Internet services an

essential tool for cultural preservation, “The Navajo Nation has demonstrated to the world that a

people who value culture, language, and tradition can use satellite and wireless technology to

6
Press Release, The Navajo Nation, Navajo President Joe Shirley, Jr., receives tribal leadership
technology award at 20th RES 2006 (Feb. 12, 2006) available at
http://www.navajo.org/images/pdf%20releases/George%20Hardeen/feb06/Navajo%20President
%20receives%20ICT%20award%20at%20RES%202006%20%20for%20Feb%2013.pdf.
(hereafter “Shirley Press Release”)
7
FCC Website, Rural WISP Showcase, http://www.fcc.gov/osp/rural-wisp/rural-wisp-orgs.html
(last visited May 5, 2009).

11
help maintain their way of life.”8 Additionally, the authors of a Benton study in 1999

commented, “Community and cultural development is perhaps the development

area most commonly considered for tribal communications….Noncommercial

radio and television stations have been part of the tribal landscape for years,

and have as their main purpose the provision of culturally appropriate

services to Indian communities.”9

In addition to cultural preservation, communications within tribal governments and with the

federal government are critical. The Navajo tribe, for example, uses internet connectivity to

communicate between its 110 chapters.10 With regard to communications with the federal

government, a large percentage of tribes apply for and rely on federal grants to fund various

social services within their communities. These grants are often critical to the operations of

basic programs. The federal government’s shift to electronic filing leaves tribal communities

without access to broadband at a disadvantage to apply for critical funding.

B. Prioritizing Spectrum Access for Tribes

In its investigation of extending wireless services to tribal lands, the FCC stated that,

“[T]here is a substantial need for specific incentives targeted to the deployment of services on

tribal lands. By virtually any measure, communities on tribal lands have historically had less

access to telecommunications services than any other segment of the population.”11 Past

attempts to increase broadband access, including the use of tribal lands bidding credits, failed to
8
Shirley Press Release, supra note 6.
9
James Casey et al., BENTON FOUNDATION, Native Networking: Telecommunications and
Information Technology in Indian Country, 1999, at 15, available at
http://www.benton.org/publibrary/native/bentonne.pdf.
10
See Kathy Helms, Navajo president attends World Summit in Africa,
GALLUPINDEPENDENT.COM, Nov. 16, 2005,
http://www.gallupindependent.com/2005/nov/111605wsmt.html (last visited
May. 5, 2009).
11
TLBC Report & Order, supra note 1 at Appendix C part A.

12
bring meaningful connectivity mostly due to the high cost of build-outs to rural communities. At

the recent Department of Commerce meetings held to discuss the implementation of the

broadband stimulus package, Diana Bob, staff attorney for the National Congress of American

Indians said, “[T]ribal lands have historically been left out of critical infrastructure build-outs….

[Broadband] is a great thing for most of the country but for Indian Country there is a major lack

of analog access as well.”12 Programs designed to encourage providers to reach tribal

communities are limited by the reality that service providers have economic incentives to

provide the least costly service, often synonymous with the lowest quality service, to meet the

requirements of the incentive program. Serving the sparsely populated and remote regions of

many tribal communities will never be attractive business opportunities for private providers.13

The situation is significantly different for those tribes located near urban areas or that are more

densely populated, or both.

While the FCC tried to advance services offered in Indian Country through the Tribal Lands

Bidding Credit (TLBC) program, the results have been disappointing. Despite the bidding credit,

few tribes bid. In a 2004 Report and Order, the FCC found that, “[T]he record, though limited,

suggests that underutilization of the tribal lands bidding credit program stems from technical

obstacles, economic factors, difficulties obtaining certifications, and other problems, rather than

from overly-restrictive buildout requirements.”14 In some instances, providers did only what was

12
United States Department of Commerce BTOP Public Meeting Transcripts, Session 2, March
23, 2009, available at http://www.ntia.doc.gov/broadbandgrants/meetings.html.
13
See Federal Communications Commission, Telephone Subscribership on
American Indian Reservations and Off-Reservation Trust Lands (May 5,
2003), available at
http://www.fcc.gov/Bureaus/Common_Carrier/Reports/FCC-State_Link/IAD/subsai03.pdf
(hereafter “Telephone Subscribership on Reservations Study”). See also TLBC Report & Order
supra note 1 at ¶ 16. “[W]ell over half of tribes continue to have penetration rates below our
national average [for telecommunications services].”
14
TLBC Report & Order, supra note 1 at ¶ 8.

13
necessary to satisfy the bidding credit requirement. Regardless of the effectiveness of this

singular incentive program, service providers will continue to be constrained by the market

reality that investments in rural areas have longer payback periods and lower rates of return.

C. Wireless Best Practices in Tribal Communities

As daunting as the challenges to providing broadband access in rural tribal communities may

seem, there are examples of success.15 One such project is Tribal Digital Village16 (TDV), a

tribal-owned cooperative in Southern California providing Internet services via a wireless

Internet backbone to eighteen tribes in the area.17 TDV serves more than 7,600 Native

Americans living in isolated areas and scattered rural communities.18 The area served by TDV

spans 150 miles and stretches from Riverside County to the California-Mexico border.19 The

project is funded by private companies like Hewlett-Packard as well as federal grants.20

Willingness to Innovate

One unique aspect of the Tribal Digital Village that played a role in its success is the

organization’s ability and willingness to innovate. According to Matt Rantanen, TDV uses field

tests to maximize the transmission distances for the equipment it buys. While manufacturers use

laboratory testing to determine how far wireless signals will reach, TDV sometimes finds

equipment is capable of sending and receiving transmissions over distances greater than what the

manufacturer’s stated capacity. On the other hand, TDV also sometimes finds that equipment

has less capacity than the manufacturer’s stated specifications. TDV’s willingness to optimize
15
See Appendices A & C.
16
See Tribal Digital Village Website, available at http://www.sctdv.net, (last visited May 06,
2009).
17
See Appendix A.
18
FCC Website, Rural WISP Showcase, supra note 7.
19
Id.
20
Hewlett-Packard Development Company Press Release, SDTDV Accomplishments, Oct.
2003, available at http://www.hp.com/e-inclusion/en/project/sdtdv_accomplishments.pdf. (last
visited May 6, 2009).

14
the reach of the network with available equipment is an interesting field test for the device

manufacturers. Sharing information about devices in the field is to some extent the foundation of

a relationship between TDV and the companies that create the equipment TDV needs, creating

opportunities to maximize mutual benefits. External relationships in general have been very

beneficial to the TDV project. The project involves collaboration with Hewlett-Packard as well

as local university experts who helped design the network and provide occasional technical

expertise.

The need to work well with all eighteen tribes involved in TDV was another key to success.

Before the project began, each tribe signed a letter of understanding regarding tower location.

When TDV needs to place a tower, it suggests three possible locations and works with the tribe

to come up with the best mutually beneficial solution.

Benefits of Tribal Ownership

Unaffiliated service providers have a poor track record of providing telecommunications

services in remote areas where market incentives are minimal and costs are high.21 Providers

were slow to bring telephone service to rural tribal communities,22 a reality that lead to the

creation of the Universal Service Fund to help subsidize telephone service to rural areas.23 The
21
Therese Bissell, U. ILL. J.L., TECH. & POL’Y, The Digital Divide Dilemma: Preserving Native
American Culture While Increasing Access to Information Technology on Reservations, 2004 at
129. “Native Americans living on reservations disproportionately lack access to both basic and
advanced technologies because poor infrastructure makes the cost of obtaining fundamental
telephone, cable, and computer service very high.” See also, FCC, Statement of Policy on
Establishing a Government-to-Government Relationship with Indian Tribes,
(June 23, 2000), available at
http://www.fcc.gov/Bureaus/OGC/Orders/2000/fcc00207.doc. “[T]he
Commission has recognized that certain communities, particularly Indian reservations and Tribal
lands, remain underserved, with some areas having no service at all.”
22
Supra note 13, Telephone Subscribership on Reservations Study at 3. “Statistics from the 2000
Decennial Census estimated that 67.9% of all American Indian households living on American
Indian Reservations and Off-Reservation Trust Lands: Federal had telephone service.”
23
See David Wilson, Weaving the Navajo.Net: Advanced Telecommunications Services, Cultural
Adaptation, and the Navajo Nation’s “Internet to the Hogan” Technology Plan, J. ON TELECOMM.

15
same will be true for providing broadband services to rural areas. One way to confront the

tendency for service providers to under-serve rural communities is to encourage tribal service

providers like the Tribal Digital Village. There are a lot of reasons, many of them outlined

above, why the TDV project works, and one of them is tribal ownership.24 Tribal Digital Village

has social incentives to serve its own communities in contrast to other service providers

incentives to provide high quality service that are limited to regulatory and economic

considerations. Another example of tribal-owned and operated telecommunications services is

the Navajo Nation’s Technology Plan.25 The Navajo Nation is providing its own

telecommunications service in contrast to previous service provided by OnSat, which did not

meet the service needs of the Navajo communities.26

Finally, Internet service providers owned or operated by a tribe or by a member of a tribe

have the opportunity to hire and train additional members of the tribal community to work in IT

and communications services. For example, many of the individuals working with Tribal Digital

Village have benefited from the hands-on training necessary to operate their network, and DTV

has built an expertise internally to serve its own communities. That kind of employment and job

training opportunity is particularly notable in an area where nearly 30 percent of the tribal

& HIGH TECH., (forthcoming 2009) at Part V(A)(ii).

24
Opponents could argue that it doesn’t make sense for inexperienced entities to be in the
business of providing broadband services. Established service providers have specialized
knowledge and economies of scale. However, if the only services available are inadequate, it
makes more sense for communities to build their own services to meet their unique needs.
25
See Navajo Nation Department of Information Technology Website, Strategic Information
Technology Plan Version 5.0, available at http://www.dit.navajo.org/#.
26
David Wilson, supra note 23 at note 41 “OnSat Network Communications has been provided
satellite internet to the Navajo chapter houses. See Gordon et al., supra note 19, at 431. A recent
audit, however, suggests that OnSat has inappropriately billed the Navajos over 650 thousand
dollars. See John Christian Hopkins, Bates: ‘Gross negligence’ in OnSat dealings,
GALLUPINDEPENDENT.COM, June 21, 2007,
http://www.gallupindependent.com/2007/june/062107jch_onsatdealings.html (last visited Nov.
22, 2008).”

16
community's population lives below the poverty line, and 50 percent are unemployed.27

Given the general need for additional spectrum access in Indian Country, the following two

sections discuss specific spectrum policy changes that could help meet the Internet access needs

of tribal communities.

III. PROPOSED RESTRICTED DEVICE EXCEPTIONS IN THE 3650-3700 MHZ BAND

This section of the paper seeks to examine in depth a specific band of spectrum, the 3650MHz

band, and how it might be used by tribal communities. Spectrum at 3650MHz is purposed for

rural use, and is attractive because devices have already been developed to operate in the band.

However, current FCC rules only allow readily available devices for half of the 50 MHz between

3650 and 3700 MHz. An exception for rural communities to use lower cost devices for the entire

50MHz is a way to provide additional spectrum to tribes with spectrum access needs.

A. The Non-Exclusive License and the 3650-3700 MHz Band

The 3650MHz band is attractive spectrum for tribal communities to use. The FCC intends

that spectrum at 3650 will be used especially in rural areas due to its unique history of incumbent

users. Notably, the 3650 MHz band has a rather unusual licensing structure. As opposed to a

pure licensed or unlicensed regime, the 3650 band operates under a non-exclusive licensing

structure, a hybrid of licensed and unlicensed operations. Like users of unlicensed spectrum,

users of the 3650 band may not exclude other broadcasters in the band. However, to use the

spectrum, users must register their spectrum use and seek to coordinate with other users to

minimize harmful interference. The non-exclusive license is analogous to the party lines once

used to collectively serve a number of users on a single telephone line. Each user is aware of the

other users on the line, and seeks to avoid causing the others interference by first picking up the

telephone and listening for other users before placing a call. The rules of the 3650 MHz band
27
FCC Website, Rural WISP Showcase, supra note 7.

17
operate similarly by requiring that devices sense or listen for other spectrum users before they

broadcast or talk. This listen-before-talk, or listen-before-transmit or simply “LBT” protocol28 is

also referred to as a “contention-based protocol.”

Under the FCC's service rules for the non-exclusive licenses, operators are allowed to use the

band with higher power limits (up to 24 Watts EIRP), but all equipment operating in the band

must incorporate a “contention-based protocol” to ensure that 3650 MHz licensees cooperate and

“make every effort” to avoid harmful interference.29 Lastly, because the 3650 band is technically

licensed spectrum, there is some indication that a license could be used as collateral for a loan to

build out communications services. This development may prove highly relevant to tribal

communities seeking funding for broadband projects, although the number of data points on the

efficacy of this financing strategy is minimal at best.

B. History of the 3650 Band

Initially, the 3650 MHz band was allocated exclusively for federal government radiolocation

services use, but in 1984, the FCC changed its rules to allow the 3600-3700 MHz band to be

used for non-government satellite services on a secondary basis.30 The FCC limited the non-
28
Jerry Brito defines LBT etiquette as a rule “programmed into a transmitting device, which
would require it to listen in on a frequency before it transmits and then transmit only if it found
that it would not cause interference to other devices.” The Spectrum Commons in Theory and
Practice, STAN. TECH. L. REV. at 9 (2007).
29
Wireless Operations in the 3650-3700 MHz Band, ET Docket No. 04-151, Report & Order, 20
FCC Rcd 6502 (2005) (hereafter “3650 MHz Order”) at § 90.1319 Policies governing the use of
the 3650-3700 MHz band part (c). “All applicants and licensees shall cooperate in the selection
and use of frequencies in the 3650-3700 MHz band in order to minimize the potential for
interference and make the most effective use of the authorized facilities. A database identifying
the locations of registered stations will be available at <http://wireless.fcc.gov/uls>. Licensees
should examine this database before seeking station authorization, and make every effort to
ensure that their fixed and base stations operate at a location, and with technical parameters, that
will minimize the potential to cause and receive interference. Licensees of stations suffering or
causing harmful interference are expected to cooperate and resolve this problem by mutually
satisfactory arrangements.”
30
Unlicensed Operation in the 3650-3700 MHz Band, ET Docket No. 04-151,
Notice of Proposed Rule Making, 19 FCC Rcd 7545 (2004) (hereafter “2004

18
governmental use to “international inter-continental [space-to-Earth] systems” effectively

restricting the satellite receiving stations to locations along the coast.31 In 1995, pursuant to a

1993 directive by Congress to identify 200 MHz of government spectrum to be transferred to

public use, the National Telecommunications and Information Agency slated the 3650-3700

MHz band for a change of status to a “mixed-use” band.32 This change gave the FCC the

authority to allocate this band for private users. In 1998, the FCC issued a Notice of Proposed

Rule-Making and Order allocating the band for non-government fixed service on a primary

basis.33 The FCC issued a second NPRM in 2000 specifying rules for fixed and mobile wireless

in this band and also declared that it would “grandfather” three existing government

radiolocation sites.34 The protection zones for grandfathered FSS services in these frequencies

are 1) 150km radius around FSS stations, 2) 80km radius around Federal government

radiolocation, 3) 8km from the US border (facing opposite the border) and 4) 56km from US

borders (facing the border).35 The Figure 2 indicates the location of these protected zones.

Figure 1. Map of Protection Zones for FSS Services

NPRM”) at 7547 citing Table of Frequency Allocations, 47 C.F.R. § 2.106, footnote US110.
31
Id. See also Jerry Brito supra note 28 citing Thomas Hazlett, Spectrum Tragedies, 22 YALE J.
ON REG. 242 (2005) at note 120.
32
2004 NPRM, supra note 30 at 7547-48 citing the Spectrum Reallocation Final
Report, Response to Title VI - Omnibus Budget Reconciliation Act of 1993, U.S. Department of
Commerce, NTIA Special Publication 95-32 (Feb. 1995).
33
2004 NPRM, supra note 30 at 7548-49 citing Amendment of the Commission's
Rules with Regard to the 3650-3700 MHz Government Transfer Band, ET Docket No. 98-237,
Notice of Proposed Rule Making and Order, 14 FCC Rcd 1295 (1998).
34
See Amendment of the Commission's Rules With Regard to the 3650-3700 MHz Government
Transfer Band; The 4.9 GHz Band Transferred from Federal Government Use, First Report and
Order (hereafter “3650 Allocation Order”) and Second Notice of Proposed Rule Making, ET
Docket No. 98-237, WT Docket No. 00-32, 15 FCC Rcd 20,488 (2000).
35
Id.

19
Comparing Figure 1 with the map showing Indian reservation in Figure 2, most of the protected

zones are off tribal reservations. Furthermore, the FCC order has provisions whereby service

may be provided within a protected zone based on negotiations with the FSS service provider

within the zone: "[T]o provide additional flexibility in the face of our conservative protection

zones, we will allow terrestrial operations within these protection zones, so long as they

negotiate agreements with the earth stations operators."36

Figure 2. Map of Indian Reservations in the Continental US

36
3650 MHz Order, supra note 29 at ¶ 60.

20
 In 2004, the FCC started reconsidering its spectrum allocation methods and concluded that

more spectrum needed to be allocated to the shared use or “commons” model.37 The

Commission released the Unlicensed 3650 MHz Notice and proposed to allow the operation of

unlicensed devices in the 3650 MHz band.38 The commission's aim was to ensure that service

rules for this band fostered the introduction of affordable broadband service across America,

especially in rural areas that did not have access to a broadband service.39 To this end, in its final

order in 2005, the FCC proposed far higher power limits in this band than allowed for part 15

devices.40 The FCC also required the use of “contention based protocols” to ensure interference

between devices was minimized,41 and required all services operating in this band needed to be

registered with the FCC and all service providers were required to “make every effort” not to

37
See generally 2004 NPRM, supra note 30.
38
Id.
39
Id. at 7546.
40
3650 MHz Order, supra note 29 at ¶ 50.
41
Id. at ¶ 56-58.

21
interfere with each other.42

The FCC's decision to open up the spectrum for non-exclusive use and other aspects of the

service rules included in the order received opposition from several parties. Eight parties

including the WiMAX Forum, the Wireless Communications Association, the Satellite Industry

Association, Motorola, and others asked the FCC to reconsider its decision to adopt a non-

exclusive” licensing scheme for the 3650 band of spectrum.43 Petitions were filed seeking

reconsideration of various aspects of the 3650 MHz Order and about 160 comments were made

by petitioners.44 Petitioners raised concern including the unclear definition of a “contention-

based protocol”, out-of-band interference due to higher power limitations, and insufficient

interference protection due to the non-exclusive licensing. Several suggestions were made by the

petitioners to address these concerns including protections against interference from later

entrants for licensees who have already built facilities, application deadlines to ensure build-out,

time-division access to the spectrum between different service providers, geographic or

frequency based division of spectrum into licensed and unlicensed parts, and others.

In 2007, the FCC issued a Memorandum Opinion & Order to address petitions for

reconsideration filed in response to its Report and Order on wireless operations in 3650-3700

MHz band.45 The FCC was not persuaded by suggestions that exclusive licensing would enable

42
3650 MHz Order, supra note 29.
43
See Wireless Operations in the 3650-3700 MHz Band, ET Docket No. 04-151,
Memorandum Opinion & Order, 20 FCC Rcd 10421 (2007) at footnote 1 (hereafter
“2007 Opinion and Order”) citing the 3650 MHz Order. “The parties petitioning for
reconsideration were: BRN Phoenix; the Enterprise Wireless Alliance (EWA);
Intel Corporation, Redline Communications and Alvarion (jointly); Motorola;
Redline Communications; the Satellite Industry Association (SIA); the
Wireless Communications Association (WCA); and the Wi-Max Forum.”
44
2007 Opinion and Order, supra note 43 at Appendix B, Timely Filed Oppositions, Comments
and Replies.
45
See 2007 Opinion and Order, supra note 43.

22
the most efficient use of the spectrum.46 It also rejected proposals to alter power limits or out-of-

band emissions limits.47 The FCC denied requests to reconsider the non-exclusive license

regime, and a number of other proposed changes stating that its proposed scheme “struck an

appropriate balance, providing a regime with low entry costs and minimum regulatory delay,

while still ensuring orderly operation48...” and thus “would encourage rapid deployment of

broadband technologies and advance the goal of bringing broadband services to all Americans,

including consumers living in less densely populated rural and suburban areas”.49

The FCC believed contention-based protocol provisions would be enough to avoid co-

frequency interference within the band. However, several petitioners noted the lack of existing

devices incorporating contention-based protocols. Some parties found that FCC's rules did not

clearly define “contention based protocols”. There were concerns that devices and services

based on existing wireless protocols such as Wi-fi and Wi-Max would be disqualified from use

in this band if the “contention based protocol” requirement extended to detection and protection

of interference from other, dissimilar contention technologies. In considering these concerns, the

FCC introduced definitions for what it termed restricted and unrestricted contention based

protocol devices. The order categorized devices operating in the band as restricted or

unrestricted protocol devices based on their ability to prevent interference.50 While the FCC

preferred operations based on unrestricted protocols in the band since this would mean better

protection against interference, the lack of existing technology prompted the agency to allow

restricted protocols on a limited basis. The FCC tried to balance the two concerns by allowing

46
See Id. at ¶ 14-15.
47
See Id. at ¶ 57 & 54.
48
See Id. at ¶ 6.
49
See Id. at ¶13.
50
See 47 CFR section 90.7, Definitions, or the 2007 Opinion and Order, supra note 43 at
Appendix A.

23
unrestricted protocol device to operate over the entire 50 MHz while restricted protocol devices

were limited to the lower 25 MHz of the band.51

C. Current Rules for Operation in the 3650 MHz Band

The rules governing operation in the 3650 MHz band can be found at 47 CFR Part 90. The

most recent opinion and order highlights the definition of unrestricted and restricted contention-

based protocols52 and the non-exclusive nature of the band,53 but the power limits and the

required registration are also significant components of the band.54 Spectrum users operating in

the 3650 MHz band have a non-exclusive license to operate approved devices, and must be

registered with the FCC.55 Power limits are segmented at 25W and 1W for fixed and mobile use

respectively, and devices must use either a restricted or an unrestricted contention-based

protocol.56 The current rules for operations in the 3650 are summarized in Figure 1 below.

Figure 3. The 3650 MHz Band at a Glance

• Spectrum Between 3650-3700 MHz

• Non-Exclusive Hybrid License
• Requires Registration and Filing Fee
• Product Certification Required
• Technology Agnostic
• Requires Contention-Based Protocols (Restricted and Unrestricted)
• 25W (44dBm) power limit for fixed operations
• 1W (30dBm) power limit for mobile operations

A further discussion of restricted versus unrestricted contention-based protocol will hopefully

add some clarity. The FCC defines a contention-based protocol as “A protocol that allows

51
See 2007 Opinion and Order, supra note 43 at ¶ 1.
52
See 47 CFR section 90.7, Definitions, or the 2007 Opinion and Order, supra note 43 at
Appendix A.
53
See 47 CFR section 90.1319, Policies governing the use of the 3650-3700 MHz band, or the
2007 Opinion and Order, supra note 43 at Appendix A.
54
See 2007 Opinion and Order, supra note 43.
55
Id.
56
Id.

24
multiple users to share the same spectrum by defining the events that must occur when two or

more transmitters attempt to simultaneously access the same channel and establishing rules by

which a transmitter provides reasonable opportunities for other transmitters to operate.”57 The

FCC defines contention-based protocols as either unrestricted in which case the protocol “can

avoid co-frequency interference with devices using all other types of contention-based

protocols”58 or the protocol defaults to a restricted classification if it fails that definition as an

unrestricted contention-based protocol.59 Basically, the distinction is based on whether device

protocols can prevent interference only with other devices incorporating the same protocol

(restricted) or have the capability to hear a competing signal and avoid interference, regardless of

the format of interference technology associated with the other signals (unrestricted). For

example, Wi-Max is a restricted protocol because while it has the capability to co-ordinate

operations with other Wi-Max systems and avoid interference with them, it does not have the

ability to coordinate and avoid causing interference with other technologies such as Wi-fi. The

current operating rules in the 3650 band require that devices operating in the 25 MHz between

3650-3675 must have a restricted contention-based protocol while devices with unrestricted

contention based protocols can operate throughout the 3650-3700 MHz band.60

D. Economic and Efficiency Considerations

While the FCC’s allowance for multiple contention-based protocols is worthwhile in terms of

maximizing innovation, the hard reality is that one device meets the standard for devices using

an unrestricted contention-based protocol while restricted protocol devices that could be used

throughout the 3650 band are readily available. Today there are several manufacturers like
57
47 CFR section 90.7, Definitions, or the 2007 Opinion and Order, supra note 43 at Appendix
A.
58
Id.
59
See Id.
60
See 2007 Opinion and Order, supra note 43 at ¶ 1.

25
Alvarion, Airspan, and Redmax that have a complete range of Wi-Max products for 3650Mhz

spectrum.61 However, very few of the Wi-Max devices are currently available equipped with

restricted contention based protocols. For example, Alvarion's BreezeMAX products operate

only between 3650-3675MHz, the upper half of the 50MHz spectrum, even though the devices

are hardware-ready to operate in the entire 3650-3700MH range62. One manufacturer does

provide Wi-Max devices certified by FCC for operation over the entire 50 MHz using a non-

standard proprietary interference detection mechanism certified by the FCC,63 but the IEEE

802.16 standards working body is yet to decide on a common standard for an appropriate

unrestricted contention-based protocol.64 A common protocol standard would make these

devices more widely available and cheaper. The standard that Alvarion developed is unlikely to

be adopted by other device manufacturers if that technology is expensive or difficult to license

into their products. It’s more likely that device manufacturers will wait for a standard to be

developed.

E. Proposed Changes to the 3650 MHz Band Order

61
See Alvarion Website, BreezeMax 3650,
http://www.alvarion.com/products/breezemax/components/breezemax_3650/, (last visited May
6, 2009). See also, Redline Communications Website, 3.65GHz RedMAX WiMAX Solutions,
http://www.redlinecommunications.com/products/RedMAX3.65GHz.html, (last visited May 6,
2009).
62
Airspan Website, Airspan Obtains FCC Certification for Products in 3650 MHz Band,
http://www.airspan.com/products_wimax_us3650.aspx, (last visited May 6, 2009).
63
Airspan's 3.65GHz U.S. WiMax products also include a “Detect and Protect” contention
protocol designed to operate in accordance with the FCC ruling enable the use of both the
restricted and unrestricted spectrum blocks as an unrestricted contention based protocol. It is
unclear from the literature of other device manufacturers whether not they are approved to
operate as unrestricted protocol devices.
64
See Paul Piggin, WiMAX/Wi-Fi Coexistence in the 3.65GHz Band - Standardization and
Simulation, Next Wave Wireless, available at http://ursi-france.institut-
telecom.fr/pages/pages_ursi/URSIGA08/papers/C01p1.pdf, The IEEE is working towards a
standardized Unrestricted contention based protocol for 802.16. The License-Exempt Task
Group LETG is developing the amendment P802.16h to include a standardized contention based
protocol within 802.16 protocol standards such that it complies with FCC's Unrestricted CBP
standards.

26
 Until the wireless industry develops an unrestricted contention-based protocol, the FCC

should consider exemptions to allow use of the entire 50 MHz in the 3650-3700 band with

restricted protocol devices. Exemptions could be applied for on a case-by-case basis to be used

especially in circumstances such as rural tribal communities where the additional spectrum

would have high value. The exemption would be least suitable in high population density areas

where market incentives should operate more strongly to create unrestricted protocol devices.

The FCC is likely to be concerned about reliance on the use of restricted protocol devices. A

possible mitigation for this concern might be to include language in the exemption that

essentially terminates the exemption when unrestricted contention-based protocols are

standardized and devices are widely available. Because the exemption would sunset after a

period of years, the FCC could effectively cap the use of restricted devices in the upper 25 MHz

of the 3650 band at a time when unrestricted protocol devices have sufficiently developed. This

proposal strikes a balance between maximizing spectrum, particularly in rural areas where the

band was specifically intended for use, and keeping costs low while still offering incentives for

wireless devices to build unrestricted protocol devices and preserving the flexibility and

innovation incentives the FCC designed. Lastly, more work is needed to identify precise

changes in language to the rules in Part 90. In particular, defining at what point unrestricted

contention-based protocol devices become “widely available” could be difficult to define.

F. Potential for Delayed Development of Unrestricted Contention-Based Protocol

Another concern likely to be raised by the FCC is that allowing exemptions from unrestricted

protocols will delay the development of the new sensing technologies the FCC would like to see

develop. Whether or not granting limited exceptions for restricted devices will really change the

technological advancements of protocol-sensing technology is arguable. It seems highly unlikely

27
that device manufacturers would have incentives to develop new technology solely to serve

sparsely populated, rural communities, regardless of how much spectrum is available. Simply

put, rural communities are not attractive markets for device manufacturers, they are simply too

small. The economically rational way to allow exemptions under limited circumstances while

still offering incentives to device manufacturers is simply to restrict exemptions to small markets

in rural areas where market incentives are likely to be inconsequential.

IV. PROPOSED CHANGES TO WIRELESS POWER LIMITS IN UNLICENSED

SPECTRUM

This section suggests policy changes in unlicensed spectrum that could help increase

broadband access for tribal communities. Increasing power limits in unlicensed bands can

increase the range of wireless access thereby decreasing the cost of providing Internet services to

tribal communities. While spectrum operators in the same and neighboring bands might be

concerned about increasing power limits, risk of harmful interference can be mitigated through

registration, required interference resolution, and contention-based protocols.

A. History of Power Regulations in Unlicensed Spectrum

Since 1934, the FCC has regulated radio spectrum by granting individual operators exclusive

licenses to broadcast in an assigned frequency band, at a particular power level, at a specified

location.65 This exclusive license mechanism ensured minimal risk of harmful interference

between different services. The FCC also has a long history (first regulated in 1938) of

permitting unlicensed devices to be sold and operated under compliance with its part 15 rules.66

The part 15 rules set forth conditions to ensure that the emissions or field strength levels
65
Kenneth Carter, The Information Economy Project at George Mason University School of Law
Conference on the Genesis of Unlicensed Wireless Policy, Unlicensed to Kill: a Brief History of
the FCC Part 15 Rules, April 4, 2008, at 3, available at:
http://iep.gmu.edu/UnlicensedWireless.php.
66
Id. at 3-4.

28
generated by unlicensed wireless devices are limited to a minimum and pose very limited threat

of interference to licensed services. The general conditions for operation under part 15 rules

reads, “Operation of an intentional, unintentional, or incidental radiator is subject to the

conditions that no harmful interference is caused and that interference must be accepted that may

be caused by the operation of an authorized radio station, by another intentional or unintentional

radiator, by industrial, scientific and medical (ISM) equipment, or by an incidental radiator.”67

While periodic updates were made to the part 15 rules to stay in step with latest technical

advances, in 1989 the FCC decided to do a major overhaul. It reclassified unlicensed devices

into the following three categories:

• Unintentional Radiators – devices not intended to radiate RF energy,68

• Incidental Radiators – devices radiate RF energy during their normal course of operation

but are not designed to do so,69 and

• Intentional Radiators – devices intentionally generate and emit RF energy.70

The third category of devices, intentional radiators, were allowed to broadcast presumptively

in any band at very low powers (although transmission was not allowed in certain specified

public safety and other critical bands).71 As part of continued revisions of the part 15 rules, the

FCC has since opened up certain bands of spectrum for unlicensed use (e.g. 2.4 GHz band used

for Wi-Fi.). In addition to 2.4GHz, other common unlicensed bands include 900MHz,

5.2/5.3/5.8GHz, 24GHz and above 60GHz.

The unlicensed spectrum approach follows the commons model where the assigned spectrum

is not exclusive and anyone can use spectrum within the band while complying with the
67
47 C.F.R. section § 15.5(b)
68
Id. at 7 citing 47 C.F.R. § 15.3(z); see also, Part 15, Subpart B §§ 15.101-15.122.
69
Id. at 7 citing 47 C.F.R. § 15.3(n).
70
Id. at 7 citing 47 C.F.R. § 15.3(m); see also Part 15, Subpart C §§ 15.201-15.255.
71
Id. at 8.

29
specified service rules for that band. Again, the FCC service rules for these unlicensed

frequencies limit the maximum power and emissions to minimize interference between the users

of this spectrum. The FCC's intention is to ensure that unlicensed use does not end up being a

victim of its own success resulting in a “tragedy of the commons” whereby there are so many

users of the spectrum that the resulting interference makes the spectrum unusable. However, the

distance electromagnetic radiations travel has a direct correlation with the power radiated. Thus,

lower power limitations result in a highly restricted range for the transmissions on these

unlicensed bands.

B. Why Unlicensed Spectrum Use Makes Sense in Indian County

Spectrum in general is much less used in rural areas. For tribal communities in rural areas,

unlicensed spectrum can be particularly available. The advantage of using unlicensed spectrum

in rural communities is the combination of a small number of users (and therefore interference)

combined with a lower entry cost. The cost of licensing spectrum varies, but as it currently

stands, it is prohibitive to all but a few tribal communities. As an example, the Tribal Digital

Village started using unlicensed spectrum. The limitations it encountered were not caused by

congestion, but by network needs which were too great for the limited amount of unlicensed

spectrum available. Their own use was interfering with their network. The solution in the case

of TDV was to eventually get access to licensed spectrum in addition to unlicensed use. The fact

that TDV didn’t experience significant problems in gaining access to the unlicensed spectrum is

largely due to the isolated nature of the network. Other similarly situated tribes have the

potential to use unlicensed spectrum to provide wireless access in the same way with minimal

risk of harmful interference.

The table below shows a comparative analysis of the various technologies currently being

30
employed in the unlicensed bands (2.4GHz and 5.8GHz). The ranges included are for indoor

spaces, but even the 802.11b standard with a 250 feet range in enclosed space is limited to 800-

1200 feet in open space. For outdoor spaces the range varies based on a multitude of factors

including data rate (bandwidth) desired, line of sight, obstructions, antenna type, antenna cable

length, and the receiving antenna. The range for outdoor spaces can be much farther and in the

most optimal scenario even extend up to 25 miles for some devices.72 However, as the distance

from the base station increases the received power decreases substantially. Decreased power

means reduced data rate, as the maximum data rate for any particular technology is based on the

Carrier to Interference ratio (C/I) and decreased signal power at the receiver means lower C/I

ratio for constant interference. This severely limits deployment of these services in rural regions

because additional access points are needed to extend the range.

Figure 4. Performance Metrics for Selected Wireless Networking Standards

72
Cisco Systems Website, Cisco Aironet Wireless Bridges FAQ, last updated Jan. 21, 2008,
available at:
http://www.cisco.com/en/US/tech/tk722/tk809/technologies_q_and_a_item09186a008015502c.s
html#q15.

31
 C. Proposed Changes to the Part 15 Rules for Unlicensed Spectrum Use

The FCC has already suggested that changes to power limits could be effective for increasing

wireless services in tribal communities. In its 1999 NPRM on extending wireless services to

tribal lands, the FCC wrote that the rules in place were designed to promote efficient spectrum

usage and reduce harmful interference with other users.73 The notice also said: “Although these

restrictions are important, for the numerous tribal areas that are located in remote or sparsely

populated areas, increasing these limits may increase the viability of providing basic

telecommunications services to individuals on those lands by expanding the reach of existing

systems and by reducing the number of transmitting facilities required to provide service in a

certain area.”74 At the time, the FCC did not consider changes to unlicensed spectrum because it

was very limited. Since then, others have looked at increasing power limits in unlicensed

spectrum at 2.4GHz and 5GHz. In 2006, the UK Office of Communication or “Ofcom”,

produced a report on the very subject.75 The report found that, “The broad technical conclusions

from the research project, opinions from industry interviews and economic results from

modeling indicate potential benefits if: A power increase to 10 Watts at 2.4GHz and to between

four and 25 Watts at 5.xGHz is allowed.”76 The report also suggests a scheme to limit higher

power limits in the 2.4GHz and 5.xGHz bands under the following criteria:

• Registration at a publicly-accessible database of any devices operating at the higher

power limits to include details on location, power, and contact information, and,

• Acceptance of responsibility for resolving any interference with lower power

73
Extending Wireless Telecommunications Services to Tribal Lands, Notice of Proposed Rule
Making, WT Docket No. 99-266, 14 FCC Rcd. 13679 (1999) at ¶ 17.
74
Id.
75
Ofcom Office of Communications, Higher Power Limits for Licence Exempt Devices
Understanding the Scope for a Power Increase at 2.4 and 5 GHz, July 2006, (hereafter “Ofcom
Report”) available at http://www.ofcom.org.uk/consult/condocs/powerlimits/statement/.
76
Id. at 2.

32
 devices.77

Amongst the advantages of such a regime, the report hypothesized a low probability that a user

would deploy equipment at a higher power limit in an area that would likely cause interference

given the responsibility for resolving interference issues.78 Finally, the report concluded that

"higher power at 2.4 GHz could improve their business case"79 for rural users finding that the

"number of subscribers increases with higher power, calculated consumer surplus also increases

with power."80

Back in the US, the FCC in its report on TV white spaces allowed for low power devices to

operate in the TV White Space bands.81 These white space devices will have special sensing

capabilities and have the ability to change their transmission to communicate effectively with

other users by actively monitoring the transmissions in the band.82 The FCC is confident that

these capabilities will be enough to ensure a low risk of interference with other unlicensed

services and thus allowed unlicensed services within the TV white spaces band.83 Also in the

White Spaces Report, the FCC expressed the need for a separate notice of inquiry regarding the

suitability of higher powered unlicensed operation in the TV white spaces in rural areas.84

In another FCC docket on cognitive radios, the FCC examined the potential for the use of

sensing technologies in combination with higher power limits in rural areas. The FCC stated,

“In this Notice we proposed to allow unlicensed devices to employ cognitive radio technologies

77
Id. at 24-25.
78
Id. at 25.
79
Id. at 5.
80
Id. at 19.
81
See Unlicensed Operations in the TV Broadcast Bands, Second Report and Order and
Memorandum Opinion and Order, ET Docket No. 04-186, 46 Communications Reg. (P&F) 940
(2008) (hereafter “White Spaces Order”).
82
Id. at ¶ 1.
83
Id. at ¶ 24-31.
84
Id. at ¶ 106.

33
to operate at higher power in rural and other areas with limited spectrum use. While we are not

adopting any changes to allow higher power operation by unlicensed devices in this Report and

Order, we continue to believe that cognitive radio technologies hold great promise to allow such

higher power operation without interference to other spectrum users.85

We submit that based on the White Spaces Order and the Cognitive Radio Order in

conjunction with the findings of the Ofcom Report, the FCC should extend power limits for

increased transmitter power for devices operating in already existing unlicensed bands like 900

MHz, 2.4 GHz, and 5 GHz band in rural tribal communities.86 Furthermore, higher power limits

such as the 10 Watts at 2.4GHz and between 4 and 25 Watts at 5.xGHz suggested by the Ofcom

Report should 1) require registration to a public database, 2) require the higher power limit user

to resolve interference with lower power limit users, and 3) employ some type of contention

based protocol in under to minimize interference. The FCC proceedings evidence that devices

with sensing capabilities are successfully able to avoid interference with other operations in the

bands in which they operate. Additionally, the highly remote location of many of the tribal

communities and the lack of other telecommunications infrastructure in the region means very

little risk of interference with other spectrum users. The additional power would help overcome

the severe range limitations of Wi-Fi and other devices operating in these spectrum bands.

Additional support for this policy change could also come from the FCC’s policy statement

on its relationship with tribes.87 The policy statement is supported by language in the
85
Facilitating Opportunities for Flexible, Efficient, and Reliable Spectrum Use Employing
Cognitive Radio Technologies, Report and Order, ET Docket No. 03-108, 20 FCC Rcd. 5486
(2005) at ¶ 22.
86
More work is needed to identify precisely how the language in the Part 15 Rules should be
changed to effect this policy change.
87
Statement of Policy on Establishing a Government-to-Government Relationship with Indian
Tribes, 16 FCC Rcd 4078 (2000). In particular, sections 7 and 8 of the policy statement are
pertinent. “7. The Commission will work cooperatively with…. Tribal, state and local
governments to further the goals of this policy and to address communications problems, such as

34
Telecommunications Act of 1996 where Congress expressed 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....”88

D. Consideration for Other Licensed and Unlicensed Users

The threat to other licensed and unlicensed users is minimized with the use of contention-

based protocols. The FCC is betting heavily on the communication industry’s ability to develop

leading technologies to take full advantage of unlicensed spectrum, most notably the white

spaces, and licensed spectrum like 3650. To the extent the FCC can create additional incentives

for device manufacturers to develop new contention-based protocols by expanding the market for

such technologies, it should. Furthermore, raising power limits in effect increases the utility of

the otherwise finite resource that is spectrum. While contention-based technology development

will take time and be costly, it is arguably a reasonable means to facilitate greater spectrum use,

especially given the safeguards discussed and the high need in unserved and underserved areas.

V. FURTHER RESEARCH

While investigating the spectrum policy suggested already described, a number of other

equally important and potentially viable policy changes were uncovered. A through

investigation of the following issues is needed: 1) wireless backhaul or other means to connect

tribal communities to fiber backhaul, 2) a spectrum inventory including the potential for

repurposing spectrum on tribal lands and other spectrum licensing opportunities, and 3) use of

the secondary markets in and license disaggregation to provide additional spectrum license

opportunities..

low penetration rates and poor quality services on reservations, and other problems of mutual
concern. 8. The Commission will welcome submissions from Tribal governments and other
concerned parties as to other actions the Commission might take to further the goals and
principles presented herein.”
88
47 U.S.C. § 254(b)(3).

35
 A. Connecting Tribal Communities to Fiber Backhaul

Spectrum access is only a piece of the broadband access puzzle. Meaningful broadband

connectivity requires middle mile and backhaul capacity. The question remains what is the best

way to provide the necessary infrastructure to rural tribal communities. Both laying fiber and

using wireless backhaul are two ways to connect networked fiber to rural communities. Each has

advantages and disadvantages. For example, fiber has much greater capacity but is much more

costly and involves more significant rights-of-way issues. Wireless backhaul, on the other hand,

sacrifices capacity for a lower overhead and ease of installation.

Wireless backhaul in general is an interesting area for further investigation. The Tribal

Digital Village is a striking example of how it can be deployed successfully. TDV’s wireless

backhaul uses towers on average every nine miles with the longest single-hop of over 26 miles.89

Additionally, in rural areas where the ultimate number of subscribers is low, even with 100%

uptake, technologies that offer limited bandwidth but are more cost effective are more realistic.

Creating access to network fiber is also an open question. Network providers have thousands

of miles of fiber optic cable running through or near tribal lands. Approximately every sixty

miles, the signal running through the fiber is repeated. Accessing fiber backhaul via these

repeater, or “ILA,” sites seems promising. If the cost of connecting the fiber network to a middle

mile technology that would run to a tribal community is low, the network providers should have

incentives to provide backhaul capacity even to small communities, thereby increasing the

number of people over which the cost of the network is spread. If, however, the cost to connect

is high, some additional incentive might be necessary, perhaps at the federal level.

B. Spectrum Inventory for Possible Development

Another equally interesting area for exploration is to examine in more detail what potential
89
Matt Rantanen, Tribal Digital Village, phone interview, March 17, 2009.

36
spectrum could be opened up for additional use in rural areas particularly for tribal communities.

While unlicensed and hybrid licensing regimes are viable options for spectrum use, there is

relatively little spectrum available for such uses with frequencies of less than 3 GHz.90

Investigating potential spectrum use in licensed bands should also be a priority. In the 3650

MHz band proceeding, the FCC and other federal agencies showed a willingness to maximize

under-used spectrum for rural use, especially under circumstances where incumbent users are

minimal or primarily concentrated in urban areas. One example is the docket currently open at

the FCC on Educational Broadband Service.91

In a Notice of Proposed Rule Making on Extending Wireless Services to Tribal Lands, the

FCC contemplated the possibility of examining current spectrum use.92 The FCC was opposed to

the allocation of spectrum for tribal use alone, citing a need to balance competing needs and

spectrum demands.93 However, it stated an openness to revisiting the issue of spectrum

allocation “if it becomes necessary.”94 The current state of broadband penetration on tribal lands

should be sufficient to raise the issue again, especially given the lack of success with the tribal

lands bidding credit program. Rather than purposing spectrum solely for tribal use, finding and

repurposing spectrum allocated for uses that are not allowed to operate on tribal lands would be

more effective. Of some concern, however, is the FCC statement that “allocating frequencies to

provide new wireless services would not necessarily be effective in promoting the provision of

90
See Appendix B Licensed vs. Unlicensed Spectrum Available Under 3 GHz.
91
See FCC Modifies Rules for 2496-2690 MHz Broadband Radio Service (BRS)/ Educational
Broadband Service (EBS) Spectrum Band to Facilitate Wireless Broadband Access WT Docket
No. 03-66, 2006 WL 941984.
92
Extending Wireless Telecommunications Services to Tribal Lands, Report and Order and
Further Notice of Proposed Rule Making, WT Docket No. 99-266, 15 FCC Rcd. 11794 (2000) at
¶ 55-57.
93
Id. at ¶ 56.
94
Id. at ¶ 57.

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cellular service to tribal lands and that more allocations do not guarantee more service.”95 While

that statement might be true under the TLBC program, allocating additional spectrum for use by

tribal-owned providers might have a very different result.

C. Licensed Spectrum Access through Secondary Markets

While the focus in this analysis is on the efficient use of unlicensed and “licensed-lite”

spectrum, tribal communities ultimately need additional access to licensed spectrum to ensure

both sufficient bandwidth and legal protection against harmful interference. Tribal lands are

often set up well geographically for either partitioning or dissaggregation of spectrum in existing

licenses. Prioritizing service for unserved and underserved areas in could bridge the gap

between tribal communities who are interested in licensed spectrum and license holders.

Additional support for disaggregating licenses that extend into tribal lands could come from the

unique relationship tribal governments have with the federal government. More research is

necessary to formulate a policy that would combine secondary markets and tribal sovereignty to

allow tribal communities access spectrum over tribal lands.96

VI. CONCLUSION

A telecom expert said it succinctly; there are many paths to the top of the mountain, but only

one mountaintop. The same is true for providing broadband connectivity to tribal communities.

A variety of technologies including wireline, wireless, and even satellite will be necessary to

tailor appropriate broadband solutions for individual communities. Similarly, wireless

technology is evolving rapidly, meaning the policies that make sense today may be obsolete in

the near future. Regular evaluating spectrum policy as it relates to Indian Country is necessary

to maximize the likelihood that tribal communities move to or stay at the forefront of next
95
Id.
96
See David Wilson, supra note 23 for a through discussion on the interplay between
telecommunications, tribal sovereignty, federal trust, and state jurisdiction.

38
generation technologies and their accompanying applications.

Lastly, much more needs to be done to create awareness within tribal communities about the

potential for broadband connectivity to improve health, education, and employment outcomes.

FCC programs like the Indian Telecommunications Initiative (“ITI”) have focused primarily on

creating awareness about Enhanced Lifeline and Link-Up programs that subsidize telephone

service.97 Tribal communities need additional tools to develop infrastructure plans for their

communities, find funding to build the infrastructure when needed, provide equipment like

computers when necessary, and empower members of their communities to use broadband

connectivity by offering classes and computer training.

97
See David Wilson, supra note 23 at Part V.

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 APPENDIX

A. Tribal Digital Village Overview

B. Tribal Digital Village Cluster Topology

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C. Tribal Digital Village Success

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D. Representation of 3650 MHz band

E. Licensed vs. Unlicensed Spectrum Available Under 3GHz

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