By: Anne Elsberry Kyl , attorney at Brown and Bain in Tucson, e-mail at (akyl@brownbain.com)

Cellular communications, either in the guise of telephone services or the newly developed Local Multipoint Distribution Service and Multiple Multipoint Distributions Service which will allow for two-way video, telephone and high-speed data connections, require relative closely placed antennas to pass along the signal. The crux of the controversy between federal law and Indian sovereignty lies in the fact that while the FCC may regulate the use of bandwidth, it cannot control the land upon which the means of transmitting the signal must be placed. As an example of this growing tension is the dispute mediated by the FCC in In the Mutter of AB Fillins. In July of this year, the FCC decided the rights and limitations of the Tohono O'odham Nation's sovereignty with respect to the FCC's ability to regulate the control of the airwaves and its rules for allocating access to spectrum.

The FCC, in conjunction with the auction of bandwidth suitable for cellular telephone systems designed a system for the allocation of licenses intended to provide service to previously unserved areas and the creation of a "seamless and integrated nationwide cellular service."

The FCC hoped to make cellular service available to the public as quickly as possible. To this end the commission accepted applications for licenses in unserved areas and conducted a lottery for the Tucson Municipal Service Area (MSA) No. 77B.

This MSA includes within its bounds the Sells Reservation, a 5,000 square mile reservation under the authority of the Tohono O'odham Nation and its Legislative Council. Title to the tribal lands of the Reservation is held in trust by the United States for the benefit of the tribe. The local tribal district council, the Legislative Council and the Secretary of the Interior must consent before a nonmember may lease land within the Reservation. In 1992, the Legislative Council gave the Tohono O'odham Utility Authority (TOUA) exclusive power to initiate, operate, provide and acquire cellular radio services and facilities within the Sells Reservation. However, without a license from the FCC, the TOUA cannot provide cellular service to people on the reservation.

Applying 47 C.F.R. 22.31 and 22.33, the Commission was required to randomly select from the applicants for the license. The TOUA petitioned for a waiver of these rules, arguing that because almost half of the applications filed to provide service for this area proposed cell sites on tribal lands that would not be allowed by the Legislative Council, and the remaining applicants could not offer service on the Sells Reservation, TOUA was the only entity that should be given the license. Alternatively, TOUA requested that it be given a separate license to serve the Reservation exclusively. The FCC rejected both suggestions and AB Fillins was chosen by lottery to provide service.

However, AB Fillins then applied for authorization to modify its cellular system by adding new cell sites. Three of these sites would be on the Sells Reservation. Although AB Fillins has been able to provide service to majority of the Tucson MSA No. 77B, the Reservation was unserved, because the AB Fillins may not operate cell sites on the Reservation. AB Fillins then petitioned for a Declaratory Ruling from the FCC, requesting the Commission preempt the authority of the Legislative Council to regulate the entry of any cellular to the Reservation.

Although 47 U.S.C. 332(c)(3)(A) and (c)(7)(B) prohibit any state or local regulation of the placement of transmitting facilities that would prohibit the provision of personal wireless services, the FCC found that tribal governments were not state or local governments under the 1996 Telecommunications Act. Instead tribal authority over the placement of cellular sites on tribal lands is similar to authority of a private landowner to refuse to lease his land. Noting that federal policies and case law favor self-government and economic development for Native Americans support the sanctity of tribal possessory rights, the FCC found that nothing in the Communications Act displaces the Nation's ability to control its assets.

The ability to deny a license-holder access to tribal lands, and thus tribal members access to cellular services, does not, however, warrant a change in FCC rules to allow TOUA the right to license outside the procedures already adopted by the Commission. Although the Commission may waive any provision of its rules or orders if good cause is shown, a showing of good cause requires a demonstration of special circumstances that create a situation where the ordinary rules do not serve the public interest and a deviation from the rules would. In this case, however, the Commission found that no special circumstances warranting a deviation from the rules existed. Rather, the Commission stated that under the Communications Act, the Commission has the sole authority to license and certify carriers to operate cellular systems. Moreover, under federal law when Congress passes a law of national applicability the law applies with equal force to Native Americans, except where intramural matters are involved, where rights are guaranteed to tribal members by treaty, or if Congress has expressly stated that the law does not apply. Thus, there is no authority for the proposition that Indian tribes may exercise independent spectrum management or exempt themselves from the national cellular licensing scheme. Under the law as explained by the Supreme Court in Ashbacker Radio Corp. v. FCC, 326 U.S. 327 (1945), the Commission must use the same set of procedures to process the applications of all similarly situated persons who come before it seeking the same license.

Although under existing law the Tohono O'odham Nation maintains authority to control the occupation and use of tribal lands, and therefore can deny cell sites to the Commission's licensee, it does not have the additional power to displace the Commission's licensing process.

See, In the Matter of AB Fillins, FCC 97238, Memorandum Opinion and Order, adopted July 2, 1997, released August 1, 1997.

The result then is that unless TUOA or the Legislative Council allow for a joint venture, or some other creative solution, with the license holder, a large portion of the residents of the Sells Reservation may remain unserved by this technology. While the lack of this type of telephone service may seem inconsequential, considering the new advances in cellular technology, the lack of a solution may deprive members of the tribe of a wide variety of information and contact with the world.

ENDNOTE:

1. The full text of this decision may be found at the FCC's web site at http://www.fcc.gov/Bureaus/Wireless/Orders/1997/fcc97238.txt.