Court Brings Back Subsidies for Tribal Wireless Providers

WASHINGTON (CN) – The D.C. Circuit on Friday vacated an order by the Federal Communications Commission limiting federal subsidies for wireless providers bringing service to tribal lands, finding it unfairly impacted access and affordability for Native Americans.  

Under the Lifeline Assistance Program, which began in 1985 to make voice and broadband services more widely available, phone and internet providers were eligible for a federal monthly subsidy of up to $34.25 per household for serving low-income people who live on tribal lands.

Even if the provider did not own its own facilities and resold service to customers, the FCC traditionally allowed these companies to participate in the program on a case-by-case basis.

But the FCC made a rule change in 2017 that cut these resale providers off from the subsidy, and it made it so that providers are only eligible for the subsidy of $34.25 per household if the tribal lands they service are in rural areas.

On Friday, a three-judge panel of the D.C. Circuit found the two limitations unfair to customers on tribal lands and wireless providers who are excluded from subsidies under the new rules. The court had appeared sympathetic to the providers at oral arguments in October.

U.S. Circuit Judge Judith Rogers wrote that the FCC did now show that banning resellers from the tribal Lifeline program would promote network build-out, rejecting its argument that such a restriction would enhance long-term investment in tribal infrastructure. 

“The commission ignored that its decision is a fundamental change that adversely affects the access and affordability of service for residents of tribal lands,” the 27-page opinion states.

Rogers also said the FCC’s order “does not indicate consideration of facilities-based providers’ unwillingness to offer tribal Lifeline services,” noting that large providers with their own facilities such as AT&T, T-Mobile, Sprint and Verizon do not offer those services.

In addition, the court found that the FCC did not give adequate notice of the rule change and neglected to include important details in its proposal.

U.S. Circuit Judges Thomas Griffith and Raymond Randolph joined Rogers on the unanimous panel.

Former FCC Commissioner Michael Copps applauded the ruling, criticizing the current board led by Chairman Ajit Pai.

“It’s really good news that court today vacated FCC’s restrictive Tribal Lifeline Order which would have wreaked havoc on communications in tribal lands,” Copps said. “Pai’s majority just can’t seem to get things right.”

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