Establishing a 5G Fund for Rural America, 76016-76020 [2024-20979]

Download as PDF ddrumheller on DSK120RN23PROD with PROPOSALS1 76016 Federal Register / Vol. 89, No. 180 / Tuesday, September 17, 2024 / Proposed Rules • Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001); • Is not subject to requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian Tribe has demonstrated that a Tribe has jurisdiction. In those areas of Indian country, the proposed rule does not have Tribal implications and will not impose substantial direct costs on Tribal governments or preempt Tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). Executive Order 12898 (Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, 59 FR 7629, Feb. 16, 1994) directs Federal agencies to identify and address ‘‘disproportionately high and adverse human health or environmental effects’’ of their actions on minority populations and low-income populations to the greatest extent practicable and permitted by law. EPA defines environmental justice (EJ) as ‘‘the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.’’ EPA further defines the term fair treatment to mean that ‘‘no group of people should bear a disproportionate burden of environmental harms and risks, including those resulting from the negative environmental consequences of industrial, governmental, and commercial operations or programs and policies.’’ The Montana Department of Environmental Quality did not evaluate environmental justice considerations as part of its SIP submittal; the CAA and applicable implementing regulations neither prohibit nor require such an evaluation. EPA did not perform an EJ analysis and did not consider EJ in this action. Due to the nature of the action being taken here, this action is expected to have a neutral to positive impact on the air quality of the affected area. Consideration of EJ is not required as part of this action, and there is no information in the record inconsistent with the stated goal of E.O. 12898 of achieving environmental justice for people of color, low-income populations, and Indigenous peoples. VerDate Sep<11>2014 16:52 Sep 16, 2024 Jkt 262001 List of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control, Carbon monoxide, Greenhouse gases, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds. Authority: 42 U.S.C. 7401 et seq. Dated: September 11, 2024. KC Becker, Regional Administrator, Region 8. [FR Doc. 2024–20997 Filed 9–16–24; 8:45 am] BILLING CODE 6560–50–P FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 54 [GN Docket No. 20–32; FCC 24–89; FR ID 243903] Establishing a 5G Fund for Rural America Federal Communications Commission. ACTION: Proposed rule. AGENCY: In this document, the Federal Communications Commission (Commission or FCC) seeks comment on whether to require a winning bidder in the 5G Fund Phase I auction to demonstrate during the long-form application process that it has obtained the consent of the relevant Tribal government(s) for any necessary access to deploy network facilities using its 5G Fund support on Tribal lands within the area(s) of its winning bid(s). DATES: Comments are due on or before October 17, 2024; reply comments are due on or before November 1, 2024. ADDRESSES: Pursuant to §§ 1.415 and 1.419 of the Commission’s rules, 47 CFR 1.415, 1.419, interested parties may file comments and reply comments on or before the dates indicated on the first page of this document. You may submit comments, identified by GN Docket No. 20–32, by any of the following methods: • Electronic Filers: Comments may be filed electronically using the internet by accessing the ECFS: https:// www.fcc.gov/ecfs/. • Paper Filers: Parties who choose to file by paper must file an original and one copy of each filing. • Filings can be sent by hand or messenger delivery, by commercial courier, or by the U.S. Postal Service Express Mail. All filings must be addressed to the Secretary, Federal Communications Commission. SUMMARY: PO 00000 Frm 00040 Fmt 4702 Sfmt 4702 • Hand-delivered or messengerdelivered paper filings for the Commission’s Secretary are accepted between 8:00 a.m. and 4:00 p.m. by the FCC’s mailing contractor at 9050 Junction Drive, Annapolis Junction, MD 20701. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes and boxes must be disposed of before entering the building. • Commercial courier deliveries (any deliveries not by the U.S. Postal Service) must be sent to 9050 Junction Drive, Annapolis Junction, MD 20701. Filings sent by U.S. Postal Service First-Class Mail, Priority Mail, and Priority Mail Express must be sent to 45 L Street NE, Washington, DC 20554. • People With Disabilities: To request materials in accessible formats for people with disabilities (braille, large print, electronic files, audio format) send an email to fcc504@fcc.gov or call the Consumer & Governmental Affairs Bureau at (202) 418–0530. FOR FURTHER INFORMATION CONTACT: Kelly Quinn of the Office of Economics and Analytics, Auction Division, at (202) 418–0660 or Kelly.Quinn@fcc.gov, or Valerie Barrish of the Office of Economics and Analytics, Auction Division, at (202) 418–0354 or Valerie.Barrish@fcc.gov. SUPPLEMENTARY INFORMATION: This is a summary of the Commission’s Second Further Notice of Proposed Rulemaking (Second FNPRM) in GN Docket No. 20– 32, FCC 24–89, adopted on August 14, 2024 and released on August 29, 2024. The full text of this document is available for public inspection at the following internet address: https:// docs.fcc.gov/public/attachments/FCC24-89A1.pdf. Providing Accountability Through Transparency Act. Consistent with the Providing Accountability Through Transparency Act, Public Law 118–9, a summary of this Notice of Proposed Rulemaking will be available on https:// www.fcc.gov/proposed-rulemakings. Synopsis 1. In the Second FNPRM, the Commission seeks comment on whether to require a winning bidder in the 5G Fund Phase I auction to demonstrate during the long-form application process, and prior to being authorized to receive support, that it has obtained the consent of the relevant Tribal government(s) for any necessary access to deploy network facilities using its 5G Fund support on Tribal lands within the area(s) of its winning bid(s). For purposes of a requirement such as this, the Commission would follow the longstanding precedent articulated in its E:\FR\FM\17SEP1.SGM 17SEP1 ddrumheller on DSK120RN23PROD with PROPOSALS1 Federal Register / Vol. 89, No. 180 / Tuesday, September 17, 2024 / Proposed Rules Statement of Policy on Establishing a Government-to-Government Relationship with Indian Tribes (Policy Statement), 16 FCC Rcd 4078 (2020), of using the term ‘‘Tribal Government’’ to mean ‘‘the recognized government of an Indian Tribe that has been determined eligible to receive services from the Department of Interior, Bureau of Indian Affairs.’’ The term ‘‘Indian Tribe,’’ in turn, is defined in the Policy Statement to mean ‘‘any Indian or Alaska Native tribe, band, nation, pueblo, village or community which is acknowledged by the federal government to constitute a government-to-government relationship with the United States and eligible for the programs and services established by the United States for Indians.’’ The Commission recognizes that the definition of ‘‘Tribal lands’’ adopted by the Commission for the 5G Fund in the 5G Fund Report and Order, 85 FR 75770 (Nov. 25, 2020), may not fully align with a Tribal Government’s jurisdiction for purposes of providing Tribal consent for all of the areas within a particular winning bid. In that circumstance, a winning bidder would nonetheless need to obtain Tribal consent for any area(s) within the area of a winning bid for which the relevant Tribal Government has jurisdiction to grant such consent before we would award support for that particular winning bid. 2. In its reply comments concerning the 5G Fund Further Notice of Proposed Rulemaking, 88 FR 66781 (Sept. 28, 2024), National Tribal Telecommunications Association (NTTA) supports the adoption of a Tribal consent requirement during the long-form process and before the Commission authorizes any 5G Fund support to serve Tribal lands. 3. The Commission seeks comment on whether including a Tribal consent requirement would advance the goals of the 5G Fund and would be administratively efficient for all parties and the Commission. The Commission tentatively concludes that adopting a Tribal consent requirement in its 5G Fund rules is consistent with its longstanding recognition that engagement between Tribal governments and communications providers, particularly early engagement, is an important element to promote the successful deployment and provision of service on Tribal lands. 4. In seeking comment on this issue, the Commission asks commenters to provide input on how it can best assess an applicant’s eligibility to be authorized to receive 5G Fund support for the purpose of deploying network facilities that would enable 5G mobile broadband service located on Tribal VerDate Sep<11>2014 16:52 Sep 16, 2024 Jkt 262001 lands, while incorporating Tribal government consent into the Commission’s approval process. The Commission notes that, under the Broadband Equity, Access, and Deployment (BEAD) Program, ‘‘an Eligible Entity may not treat as ‘unserved’ or ‘underserved’ any location that is already subject to an enforceable federal, state, or local commitment to deploy qualifying broadband’’ and a commitment to deploy broadband will not be considered an enforceable commitment ‘‘unless it includes a legally binding agreement, which includes a Tribal Government Resolution, between the Tribal Government of the Tribal Lands encompassing that location, or its authorized agent, and a service provider offering qualifying broadband service to that location.’’ Does including a requirement for a winning bidder to demonstrate that it has obtained Tribal consent during the 5G Fund Phase I long-form application process ensure that evidence of Tribal government consent will be included in the Commission’s process of authorizing the winning bidder to receive support? Does such a requirement also provide such evidence during a 5G Fund support recipient’s deployment of network facilities to provide 5G mobile broadband service that are located on Tribal lands? 5. The Commission envisions that any Tribal consent requirement it may adopt for the 5G Fund will be a continuation of the Commission’s commitment to ensuring Tribal engagement by service providers that receive high-cost universal service support and in furtherance of the Commission’s Policy Statement establishing a government-togovernment relationship with Tribes. In the Policy Statement, the Commission stated that it ‘‘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.’’ Most recently, in the Enhanced Alternative-Connect America Cost Model Report and Order (Enhanced A– CAM Report and Order), 88 FR 55918 (Aug. 17, 2023), the Commission recognized ‘‘the deep digital divide that persists between Tribal lands and the rest of the country and emphasized that engagement between Tribal governments and communications providers, either currently providing service or contemplating the provision of service on Tribal lands, is vitally PO 00000 Frm 00041 Fmt 4702 Sfmt 4702 76017 important to the successful deployment and provision of service.’’ 6. As the Commission explained in the Enhanced A–CAM Report and Order, the rules governing the disbursement of high-cost universal service support already include an annual requirement for high-cost recipients whose support areas include Tribal lands to undertake Tribal engagement. Pursuant to § 54.313(a)(5) of the Commission’s rules, 47 CFR 54.313(a)(5), a recipient of high-cost support that serves Tribal lands must demonstrate that it has engaged with the relevant Tribal government on a range of issues, including compliance with local rights of way, land use permitting, facilities siting, and environmental and cultural preservation review processes, as well as Tribal business and licensing requirements, that are necessary for a carrier to obtain. The Commission also has historic preservation requirements. See 47 CFR 1.1305–1.1320; 47 CFR 17.4; 47 CFR part 1, Appendix B and C. The Commission also reasoned in the Enhanced A–CAM Report and Order that ‘‘[t]hrough these obligatory Tribal engagements, and as demonstrated through successfully satisfying the deployment obligations through previous high-cost programs, carriers receiving high-cost support through previous universal service programs should have received consent from the local Tribal government to satisfy the requisite permissions to deploy to certain locations.’’ Building on its existing rules, and in order to leverage any preexisting coordination and collaboration obligations that a service provider has with a Tribal government to complete the deployment required by the Enhanced A–CAM program, the Commission also determined that it would require carriers receiving Enhanced A–CAM support to initiate engagement with any relevant Tribal government within 90 days of the Wireline Competition Bureau extending an Enhanced A–CAM offer in the Enhanced A–CAM Report and Order. In so doing, the Commission explained that it expects ‘‘carriers that intend to accept Enhanced A–CAM offers will act in good faith to provide the relevant Tribe(s) with an opportunity to consent to the Enhanced A–CAM carrier’s deployment of broadband in the Tribal area.’’ 7. Referencing the Tribal engagement rules the Commission adopted in the Enhanced A–CAM proceeding, NTTA states ‘‘[a] similar process for the 5G Fund is perhaps even more important due to the structure of the 5G Fund award system (reverse auction) and the fact that, as it now stands, any provider E:\FR\FM\17SEP1.SGM 17SEP1 ddrumheller on DSK120RN23PROD with PROPOSALS1 76018 Federal Register / Vol. 89, No. 180 / Tuesday, September 17, 2024 / Proposed Rules may bid on eligible Tribal areas.’’ The Commission is mindful that, as NTTA advocates, a similar or even more developed process for the 5G Fund may be appropriate because, whereas an Enhanced A–CAM carrier already had a history of tribal engagement, in the 5G Fund Phase I auction any applicant may bid on support to serve eligible Tribal areas. Given the potential challenges that incorporating a Tribal consent requirement might raise in the 5G Fund long-form application process, should the Commission consider following the same Tribal engagement approach as the Commission adopted in the Enhanced A–CAM Report and Order? Are the provisions included in the Enhanced A– CAM and/or the BEAD programs good analogues for the 5G Fund, given the differences between fixed service and mobile service? Are there other alternatives that the Commission should consider that would result in more equitable and informed outcomes in connection with using 5G Fund support to fund proposed projects to provide advanced, 5G mobile broadband service using facilities that would be located on Tribal lands that would benefit Tribal communities and serve the public interest? Should the Commission use existing high-cost universal service Tribal engagement requirements to develop the criteria necessary to evidence Tribal consent in order to provide more consistency and predictability for both Tribal governments and service providers during the 5G Fund long-form application authorization process? 8. If the Commission adopts a Tribal consent requirement during the 5G Fund long-form application process, how could it structure a requirement for a 5G Fund Phase I auction winning bidder to demonstrate during the longform application process, and prior to being authorized to receive support, that it has obtained the relevant Tribal government’s consent? Given Tribal sovereignty, how should the Commission address circumstances in which a Tribal government neither declines nor provides consent? How might the Commission use existing Tribal engagement requirements to assess the winning bidder’s efforts to obtain Tribal consent? What are the costs and burdens of such requirements to providers? How might they be expected to influence auction participation or bidding for support in Tribal lands? As the Commission considers how to frame a requirement for Tribal consent, it also seeks comment on whether it should include parameters similar to the those that the VerDate Sep<11>2014 16:52 Sep 16, 2024 Jkt 262001 Commission includes for a winning bidder that is applying for a Tribal Land Bidding Credit (TLBC) to demonstrate its compliance with any Tribal consent requirement the Commission may adopt. 9. For instance, using the TLBC requirements as a guide, the Commission could include a requirement that within 180 calendar days after the filing deadline for a 5G Fund long-form application, an applicant seeking 5G Fund support to provide service on Tribal lands must amend its application to submit a certification from the Tribal government(s) that it has granted any required Tribal consent. See 47 CFR 1.2110(f)(3)(ii)(A). In particular, the Commission could require that the certification of Tribal consent include: the signature of an official of the Tribal Government and their title; a statement that the Tribal government has not and will not enter into an exclusive contract with the applicant to preclude entry by other carriers and will not unreasonably discriminate among wireless carriers seeking to provide service on the eligible Tribal land; and a statement that the Tribal government will, as applicable, permit the applicant to locate and deploy facilities on the Tribal land consistent with the 5G Fund public interest obligations and performance requirements. The Commission’s existing 5G Fund long-form application rules already require an applicant to certify that it will comply with all 5G Fund program requirements, including its public interest obligations and performance requirements, in the areas for which it is a winning bidder, including any such areas that are on Tribal lands. See 47 CFR 54.1014(b)(2)(vii). Would using the TLBC certification model, together with this existing long-form application certification required of an applicant seeking to be authorized for 5G Fund support, adequately reflect the contours of Tribal government consent in this context? Under this model, once the certifications from the applicant and the consent of the Tribal government(s) being served are received and reviewed by the Commission and determined to be consistent with the 5G Fund rules, 5G Fund support may be authorized. Should the Commission consider revising the TLBC certification parameters for the purposes of the 5G Fund? Should the Commission include any additional provisions to demonstrate Tribal consent if it adopts such a requirement? Should the Commission require fewer or alternative provisions? Should a process such as PO 00000 Frm 00042 Fmt 4702 Sfmt 4702 the TLBC certification process be adopted, the Commission seeks comment on how it might be able to incorporate flexibility in such a process. 10. In the event that the Commission adopts a Tribal consent requirement for the 5G Fund Phase I auction long-form application process, how can it ensure that consent is valid throughout the term of support? Should a winning bidder’s failure to obtain Tribal consent be considered an auction default under the Commission’s existing rules? Should there be additional or alternative compliance or enforcement mechanisms? 11. Finally, if the Commission adopts a Tribal consent requirement for the 5G Fund, how can it assist in dispute resolution in the event that a Tribal government reconsiders its consent? Would the Commission need to adopt a specific Tribal consent dispute resolution process? Commenters should address any other issues the Commission should consider in adopting rules related to a Tribal consent requirement for a 5G Fund Phase I auction long form applicant to demonstrate that it has obtained the consent of the relevant Tribal government(s) for any necessary access to deploy network facilities using its 5G Fund support on Tribal lands within the area(s) of its winning bid(s). 12. Are there any reasons why the Commission should decline to adopt such a requirement? Should the Commission consider requiring something less than Tribal consent (e.g., a different type of engagement than the current requirement in § 54.313(a)(5) of the Commission’s rules, 54 CFR 313(a)(5))? Procedural Matters 13. Regulatory Flexibility Act. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), the Commission has prepared this Supplemental Initial Regulatory Flexibility Analysis (Supplemental IRFA) of the possible significant economic impact on a substantial number of small entities by the policies and rules proposed in the Second FNPRM to supplement the Commission’s Regulatory Flexibility Analyses completed in the 5G Fund NPRM, 85 FR 31616 (May 26, 2020), 5G Fund Report and Order, 5G Fund FNPRM, and 5G Fund Second Report and Order and Order on Reconsideration. The Commission requests written public comment on this Supplemental IRFA. Comments must be identified as responses to the Supplemental IRFA and must be filed by the deadlines for comments on the E:\FR\FM\17SEP1.SGM 17SEP1 ddrumheller on DSK120RN23PROD with PROPOSALS1 Federal Register / Vol. 89, No. 180 / Tuesday, September 17, 2024 / Proposed Rules Second FNPRM. The Commission will send a copy of the Second FNPRM, including this Supplemental IRFA, to the Chief Counsel for Advocacy of the Small Business Administration (SBA). 14. The Commission seeks comment in the Second FNPRM on whether to require a winning bidder in the 5G Fund Phase I auction to demonstrate during the long-form application process, and prior to being authorized to receive support, that it has obtained the consent of the relevant Tribal government(s) for any necessary access to deploy network facilities using its 5G Fund support on Tribal lands within the area(s) of its winning bid(s). The Commission seeks comment on whether including a Tribal consent requirement would advance the goals of the 5G Fund and would be administratively efficient for all parties and the Commission. The Commission tentatively concludes that adopting a Tribal consent requirement in its 5G Fund rules is consistent with its longstanding recognition that engagement between Tribal governments and communications providers, particularly early engagement, is an important element to promote the successful deployment and provision of service on Tribal lands. In seeking comment on this issue, the Commission asks commenters to provide input on how it can best assess an applicant’s eligibility to be authorized to receive 5G Fund support for the purpose of deploying network facilities that would enable 5G mobile broadband service located on Tribal lands, while incorporating Tribal government consent into the Commission’s approval process. 15. The proposed action is authorized pursuant to sections 4(i), 214, 254, 303(r), and 403 of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 214, 254, 303(r), and 403, and §§ 1.1 and 1.421 of the Commission’s rules, 47 CFR 1.1 and 1.421. 16. The RFA directs agencies to provide a description of, and, where feasible, an estimate of the number of small entities that may be affected by the proposed rules, if adopted. The RFA generally defines the term ‘‘small entity’’ as having the same meaning as the terms ‘‘small business,’’ ‘‘small organization,’’ and ‘‘small governmental jurisdiction.’’ In addition, the term ‘‘small business’’ has the same meaning as the term ‘‘small-business concern’’ under the Small Business Act. A ‘‘smallbusiness concern’’ is one which: (1) is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the SBA. 17. Regulatory Flexibility Analyses were incorporated into the 5G Fund VerDate Sep<11>2014 16:52 Sep 16, 2024 Jkt 262001 NPRM, 5G Fund Report and Order, 5G Fund FNPRM, and 5G Fund Second Report and Order and Order on Reconsideration. In those analyses, the Commission described in detail the small entities that might be significantly affected. In this Supplemental IRFA, the Commission hereby adopts by reference the descriptions and estimates of the number of small entities from the previous Regulatory Flexibility Analyses in the 5G Fund NPRM, 5G Fund Report and Order, 5G Fund NPRM, 5G Fund Report and Order, 5G Fund FNPRM, and 5G Fund Second Report and Order and Order on Reconsideration. 18. In the 5G Fund Report and Order, the Commission adopted requirements for winning bidders to submit a postauction long-form application in which they must submit ownership, agreement, and spectrum access information, as well as information about their qualifications, funding, and the networks they intend to use to meet their 5G Fund public interest obligations and performance requirements. In the Second FNPRM, the Commission seeks comment on whether to add to the existing long-form application requirements a requirement that a winning bidder in the 5G Fund Phase I auction demonstrate during the long-form application process that it has obtained the consent of the relevant Tribal government(s) for any necessary access to deploy network facilities using its 5G Fund support on Tribal lands within the area(s) of its winning bid(s). If the Commission ultimately adopts a rule that would amend its existing rules to require that 5G Fund Phase I auction winning bidders make this demonstration during the long-form application process, it would impact the reporting, recordkeeping, and other compliance requirements for small business and other carriers that apply for 5G Fund support to serve Tribal lands within the area(s) of their winning bid(s). 19. In assessing the cost of compliance for small entities, record does not include a detailed cost-benefit analysis that would allow the Commission to quantify such costs, including whether small entities will be required to hire professionals, and therefore cannot currently quantify the cost of compliance resulting from an adopted requirement that winning bidders demonstrate during the longform application process that they have obtained the consent of the relevant Tribal government(s) for any necessary access to deploy network facilities using its 5G Fund support on Tribal lands within the area(s) of their winning PO 00000 Frm 00043 Fmt 4702 Sfmt 4702 76019 bid(s). The Commission anticipates, however, that the comments the Commission receives will discuss the compliance costs or burdens resulting from any potential changes to the longform application rules, and may help the Commission identify and evaluate other relevant compliance matters for small entities associated with this possible requirement, should changes be adopted in this proceeding. 20. The RFA requires an agency to describe any significant alternatives that could minimize impacts to small entities that it has considered in reaching its proposed approach, which may include the following four alternatives (among others): ‘‘(1) the establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for such small entities; (3) the use of performance rather than design standards; and (4) an exemption from coverage of the rule, or any part thereof, for such small entities.’’ 21. The Commission has taken steps to minimize any economic impact from a potential requirement that a winning bidder in the 5G Fund Phase I auction demonstrate during the long-form application process that it has obtained the consent of the relevant Tribal government(s) for any necessary access to deploy network facilities using its 5G Fund support on Tribal lands within the area(s) of its winning bid(s) on small entities. For example, given the potential challenges that incorporating a Tribal consent requirement might raise in the 5G Fund long-form application process, the Commission seeks comment in the Second FNPRM on whether it should consider following the same Tribal engagement approach used by the Commission in the Enhanced A–CAM program, rather than adopting a Tribal consent requirement. The Commission also asks in the Second FNPRM whether there are other alternatives to a Tribal consent requirement we should consider that would result in more equitable and informed outcomes in connection with using 5G Fund support to fund proposed projects to provide advanced, 5G mobile broadband service using facilities that would be located on Tribal lands that would benefit Tribal communities and serve the public interest. 22. The Commission likewise seeks comment in the Second FNPRM on how it could structure a potential requirement for a 5G Fund Phase I E:\FR\FM\17SEP1.SGM 17SEP1 ddrumheller on DSK120RN23PROD with PROPOSALS1 76020 Federal Register / Vol. 89, No. 180 / Tuesday, September 17, 2024 / Proposed Rules auction winning bidder to demonstrate during the long-form application process that it has obtained the relevant Tribal government’s consent and, for example, whether we should include parameters similar to the those that the Commission includes for a spectrum auction winning bidder that is applying for a Tribal land bidding credit (TLBC) for a 5G Fund winning bidder to demonstrate its compliance with any Tribal consent demonstration requirement the Commission may adopt. The Commission also seeks comment on whether, if it were to include parameters similar to the those that the Commission includes for a spectrum auction winning bidder that is applying for a Tribal land bidding credit in any such 5G Fund Tribal consent requirement it may adopt, whether it should include all of the TLBC certification parameters for the purposes of the 5G Fund or, alternatively, whether it should adopt additional or fewer provisions than required for spectrum auction winning bidders seeking a TLBC. Further, the Commission seeks comment on how it might be able to incorporate flexibility if we were to adopt a process such as the TLBC certification process in connection with any Tribal consent demonstration requirement it may adopt. Finally, the Commission seeks comment on whether it should consider requiring something less than Tribal consent of winning bidders (e.g., a different type of engagement than the current requirement in § 54.313(a)(5)). 23. The Commission expects to more fully consider the economic impact and alternatives for small entities following the review of comments and costs and benefits analyses filed in response to the Second FNPRM. The Commission’s evaluation of this information will shape the final alternatives it considers, the final conclusions it reaches, and any final actions it ultimately takes in this proceeding to minimize any significant economic impact that may occur on small entities. 24. There are no federal rules that duplicate, overlap, or conflict with the rules proposed herein. 25. Ex Parte Presentations—PermitBut-Disclose. The proceeding this document initiates shall be treated as a ‘‘permit-but-disclose’’ proceeding in accordance with the Commission’s ex parte rules. Persons making ex parte presentations must file a copy of any written presentation or a memorandum summarizing any oral presentation within two business days after the presentation (unless a different deadline applicable to the Sunshine period applies). Persons making oral ex parte VerDate Sep<11>2014 16:52 Sep 16, 2024 Jkt 262001 presentations are reminded that memoranda summarizing the presentation must: (1) list all persons attending or otherwise participating in the meeting at which the ex parte presentation was made; and (2) summarize all data presented and arguments made during the presentation. If the presentation consisted in whole or in part of the presentation of data or arguments already reflected in the presenter’s written comments, memoranda or other filings in the proceeding, the presenter may provide citations to such data or arguments in his or her prior comments, memoranda, or other filings (specifying the relevant page and/or paragraph numbers where such data or arguments can be found) in lieu of summarizing them in the memorandum. Documents shown or given to Commission staff during ex parte meetings are deemed to be written ex parte presentations and must be filed consistent with § 1.1206(b) of the Commission’s rules. In proceedings governed by § 1.49(f) of the Commission’s rules or for which the Commission has made available a method of electronic filing, written ex parte presentations and memoranda summarizing oral ex parte presentations, and all attachments thereto, must be filed through the electronic comment filing system available for that proceeding, and must be filed in their native format (e.g., .doc, .xml, .ppt, searchable .pdf). Participants in this proceeding should familiarize themselves with the Commission’s ex parte rules. Ordering Clauses 26. It is ordered that, pursuant to the authority contained in sections 4(i), 214, 254, 303(r), and 403 of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 214, 254, 303(r), 403, and §§ 1.1 and 1.421 of the Commission’s rules, 47 CFR 1.1, 1.421, this Second FNPRM is adopted. 27. It is further ordered that the Commission’s Office of the Secretary, shall send a copy of this Second FNPRM, including the Supplemental Initial Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration. Federal Communications Commission. Marlene Dortch, Secretary. [FR Doc. 2024–20979 Filed 9–16–24; 8:45 am] BILLING CODE 6712–01–P PO 00000 Frm 00044 Fmt 4702 Sfmt 4702 FEDERAL COMMUNICATIONS COMMISSION 47 CFR Chapter I [CB Docket No. 24–245; DA 24–782; FR ID 241932] Possible Revision or Elimination of Rules Federal Communications Commission. ACTION: Regulatory review; comments requested. AGENCY: In this document, the Federal Communication Commission (FCC or Commission) invites the general public to comment on the Commission’s rules to be reviewed pursuant to the Regulatory Flexibility Act of 1980. The purpose of the review is to determine whether Commission rules that the FCC adopted in calendar year 2013 should be continued without change, amended, or rescinded in order to minimize any significant impact the rule(s) may have on a substantial number of small entities. Upon receiving comments from the public, the Commission will evaluate those comments and consider whether action should be taken to rescind or amend the relevant rule(s), or retain the rule(s) without modification. DATES: Comments may be filed on or before November 18, 2024. ADDRESSES: You may submit comments, identified by CB Docket No. 24–245 by any of the following methods: • Electronic Filers: Comments may be filed electronically using the internet by accessing the ECFS: https:// www.fcc.gov/ecfs. • Paper Filers: Parties who choose to file by paper must file an original and one copy of each filing. • Filings can be sent by hand or messenger delivery, by commercial courier, or by the U.S. Postal Service. All filings must be addressed to the Secretary, Federal Communications Commission. • Hand-delivered or messengerdelivered paper filings for the Commission’s Secretary are accepted between 8:00 a.m. and 4:00 p.m. by the FCC’s mailing contractor at 9050 Junction Drive, Annapolis Junction, MD 20701. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes and boxes must be disposed of before entering the building. • Commercial courier deliveries (any deliveries not by the U.S. Postal Service) must be sent to 9050 Junction Drive, Annapolis Junction, MD 20701. Filings sent by U.S. Postal Service First-Class Mail, Priority Mail, and Priority Mail SUMMARY: E:\FR\FM\17SEP1.SGM 17SEP1

Agencies

[Federal Register Volume 89, Number 180 (Tuesday, September 17, 2024)]
[Proposed Rules]
[Pages 76016-76020]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-20979]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 54

[GN Docket No. 20-32; FCC 24-89; FR ID 243903]


Establishing a 5G Fund for Rural America

AGENCY: Federal Communications Commission.

ACTION: Proposed rule.

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SUMMARY: In this document, the Federal Communications Commission 
(Commission or FCC) seeks comment on whether to require a winning 
bidder in the 5G Fund Phase I auction to demonstrate during the long-
form application process that it has obtained the consent of the 
relevant Tribal government(s) for any necessary access to deploy 
network facilities using its 5G Fund support on Tribal lands within the 
area(s) of its winning bid(s).

DATES: Comments are due on or before October 17, 2024; reply comments 
are due on or before November 1, 2024.

ADDRESSES: Pursuant to Sec. Sec.  1.415 and 1.419 of the Commission's 
rules, 47 CFR 1.415, 1.419, interested parties may file comments and 
reply comments on or before the dates indicated on the first page of 
this document. You may submit comments, identified by GN Docket No. 20-
32, by any of the following methods:
     Electronic Filers: Comments may be filed electronically 
using the internet by accessing the ECFS: https://www.fcc.gov/ecfs/.
     Paper Filers: Parties who choose to file by paper must 
file an original and one copy of each filing.
     Filings can be sent by hand or messenger delivery, by 
commercial courier, or by the U.S. Postal Service Express Mail. All 
filings must be addressed to the Secretary, Federal Communications 
Commission.
     Hand-delivered or messenger-delivered paper filings for 
the Commission's Secretary are accepted between 8:00 a.m. and 4:00 p.m. 
by the FCC's mailing contractor at 9050 Junction Drive, Annapolis 
Junction, MD 20701. All hand deliveries must be held together with 
rubber bands or fasteners. Any envelopes and boxes must be disposed of 
before entering the building.
     Commercial courier deliveries (any deliveries not by the 
U.S. Postal Service) must be sent to 9050 Junction Drive, Annapolis 
Junction, MD 20701. Filings sent by U.S. Postal Service First-Class 
Mail, Priority Mail, and Priority Mail Express must be sent to 45 L 
Street NE, Washington, DC 20554.
     People With Disabilities: To request materials in 
accessible formats for people with disabilities (braille, large print, 
electronic files, audio format) send an email to [email protected] or call 
the Consumer & Governmental Affairs Bureau at (202) 418-0530.

FOR FURTHER INFORMATION CONTACT: Kelly Quinn of the Office of Economics 
and Analytics, Auction Division, at (202) 418-0660 or 
[email protected], or Valerie Barrish of the Office of Economics and 
Analytics, Auction Division, at (202) 418-0354 or 
[email protected].

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Second 
Further Notice of Proposed Rulemaking (Second FNPRM) in GN Docket No. 
20-32, FCC 24-89, adopted on August 14, 2024 and released on August 29, 
2024. The full text of this document is available for public inspection 
at the following internet address: https://docs.fcc.gov/public/attachments/FCC-24-89A1.pdf.
    Providing Accountability Through Transparency Act. Consistent with 
the Providing Accountability Through Transparency Act, Public Law 118-
9, a summary of this Notice of Proposed Rulemaking will be available on 
https://www.fcc.gov/proposed-rulemakings.

Synopsis

    1. In the Second FNPRM, the Commission seeks comment on whether to 
require a winning bidder in the 5G Fund Phase I auction to demonstrate 
during the long-form application process, and prior to being authorized 
to receive support, that it has obtained the consent of the relevant 
Tribal government(s) for any necessary access to deploy network 
facilities using its 5G Fund support on Tribal lands within the area(s) 
of its winning bid(s). For purposes of a requirement such as this, the 
Commission would follow the long-standing precedent articulated in its

[[Page 76017]]

Statement of Policy on Establishing a Government-to-Government 
Relationship with Indian Tribes (Policy Statement), 16 FCC Rcd 4078 
(2020), of using the term ``Tribal Government'' to mean ``the 
recognized government of an Indian Tribe that has been determined 
eligible to receive services from the Department of Interior, Bureau of 
Indian Affairs.'' The term ``Indian Tribe,'' in turn, is defined in the 
Policy Statement to mean ``any Indian or Alaska Native tribe, band, 
nation, pueblo, village or community which is acknowledged by the 
federal government to constitute a government-to-government 
relationship with the United States and eligible for the programs and 
services established by the United States for Indians.'' The Commission 
recognizes that the definition of ``Tribal lands'' adopted by the 
Commission for the 5G Fund in the 5G Fund Report and Order, 85 FR 75770 
(Nov. 25, 2020), may not fully align with a Tribal Government's 
jurisdiction for purposes of providing Tribal consent for all of the 
areas within a particular winning bid. In that circumstance, a winning 
bidder would nonetheless need to obtain Tribal consent for any area(s) 
within the area of a winning bid for which the relevant Tribal 
Government has jurisdiction to grant such consent before we would award 
support for that particular winning bid.
    2. In its reply comments concerning the 5G Fund Further Notice of 
Proposed Rulemaking, 88 FR 66781 (Sept. 28, 2024), National Tribal 
Telecommunications Association (NTTA) supports the adoption of a Tribal 
consent requirement during the long-form process and before the 
Commission authorizes any 5G Fund support to serve Tribal lands.
    3. The Commission seeks comment on whether including a Tribal 
consent requirement would advance the goals of the 5G Fund and would be 
administratively efficient for all parties and the Commission. The 
Commission tentatively concludes that adopting a Tribal consent 
requirement in its 5G Fund rules is consistent with its long-standing 
recognition that engagement between Tribal governments and 
communications providers, particularly early engagement, is an 
important element to promote the successful deployment and provision of 
service on Tribal lands.
    4. In seeking comment on this issue, the Commission asks commenters 
to provide input on how it can best assess an applicant's eligibility 
to be authorized to receive 5G Fund support for the purpose of 
deploying network facilities that would enable 5G mobile broadband 
service located on Tribal lands, while incorporating Tribal government 
consent into the Commission's approval process. The Commission notes 
that, under the Broadband Equity, Access, and Deployment (BEAD) 
Program, ``an Eligible Entity may not treat as `unserved' or 
`underserved' any location that is already subject to an enforceable 
federal, state, or local commitment to deploy qualifying broadband'' 
and a commitment to deploy broadband will not be considered an 
enforceable commitment ``unless it includes a legally binding 
agreement, which includes a Tribal Government Resolution, between the 
Tribal Government of the Tribal Lands encompassing that location, or 
its authorized agent, and a service provider offering qualifying 
broadband service to that location.'' Does including a requirement for 
a winning bidder to demonstrate that it has obtained Tribal consent 
during the 5G Fund Phase I long-form application process ensure that 
evidence of Tribal government consent will be included in the 
Commission's process of authorizing the winning bidder to receive 
support? Does such a requirement also provide such evidence during a 5G 
Fund support recipient's deployment of network facilities to provide 5G 
mobile broadband service that are located on Tribal lands?
    5. The Commission envisions that any Tribal consent requirement it 
may adopt for the 5G Fund will be a continuation of the Commission's 
commitment to ensuring Tribal engagement by service providers that 
receive high-cost universal service support and in furtherance of the 
Commission's Policy Statement establishing a government-to-government 
relationship with Tribes. In the Policy Statement, the Commission 
stated that it ``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.'' Most 
recently, in the Enhanced Alternative-Connect America Cost Model Report 
and Order (Enhanced A-CAM Report and Order), 88 FR 55918 (Aug. 17, 
2023), the Commission recognized ``the deep digital divide that 
persists between Tribal lands and the rest of the country and 
emphasized that engagement between Tribal governments and 
communications providers, either currently providing service or 
contemplating the provision of service on Tribal lands, is vitally 
important to the successful deployment and provision of service.''
    6. As the Commission explained in the Enhanced A-CAM Report and 
Order, the rules governing the disbursement of high-cost universal 
service support already include an annual requirement for high-cost 
recipients whose support areas include Tribal lands to undertake Tribal 
engagement. Pursuant to Sec.  54.313(a)(5) of the Commission's rules, 
47 CFR 54.313(a)(5), a recipient of high-cost support that serves 
Tribal lands must demonstrate that it has engaged with the relevant 
Tribal government on a range of issues, including compliance with local 
rights of way, land use permitting, facilities siting, and 
environmental and cultural preservation review processes, as well as 
Tribal business and licensing requirements, that are necessary for a 
carrier to obtain. The Commission also has historic preservation 
requirements. See 47 CFR 1.1305-1.1320; 47 CFR 17.4; 47 CFR part 1, 
Appendix B and C. The Commission also reasoned in the Enhanced A-CAM 
Report and Order that ``[t]hrough these obligatory Tribal engagements, 
and as demonstrated through successfully satisfying the deployment 
obligations through previous high-cost programs, carriers receiving 
high-cost support through previous universal service programs should 
have received consent from the local Tribal government to satisfy the 
requisite permissions to deploy to certain locations.'' Building on its 
existing rules, and in order to leverage any preexisting coordination 
and collaboration obligations that a service provider has with a Tribal 
government to complete the deployment required by the Enhanced A-CAM 
program, the Commission also determined that it would require carriers 
receiving Enhanced A-CAM support to initiate engagement with any 
relevant Tribal government within 90 days of the Wireline Competition 
Bureau extending an Enhanced A-CAM offer in the Enhanced A-CAM Report 
and Order. In so doing, the Commission explained that it expects 
``carriers that intend to accept Enhanced A-CAM offers will act in good 
faith to provide the relevant Tribe(s) with an opportunity to consent 
to the Enhanced A-CAM carrier's deployment of broadband in the Tribal 
area.''
    7. Referencing the Tribal engagement rules the Commission adopted 
in the Enhanced A-CAM proceeding, NTTA states ``[a] similar process for 
the 5G Fund is perhaps even more important due to the structure of the 
5G Fund award system (reverse auction) and the fact that, as it now 
stands, any provider

[[Page 76018]]

may bid on eligible Tribal areas.'' The Commission is mindful that, as 
NTTA advocates, a similar or even more developed process for the 5G 
Fund may be appropriate because, whereas an Enhanced A-CAM carrier 
already had a history of tribal engagement, in the 5G Fund Phase I 
auction any applicant may bid on support to serve eligible Tribal 
areas. Given the potential challenges that incorporating a Tribal 
consent requirement might raise in the 5G Fund long-form application 
process, should the Commission consider following the same Tribal 
engagement approach as the Commission adopted in the Enhanced A-CAM 
Report and Order? Are the provisions included in the Enhanced A-CAM 
and/or the BEAD programs good analogues for the 5G Fund, given the 
differences between fixed service and mobile service? Are there other 
alternatives that the Commission should consider that would result in 
more equitable and informed outcomes in connection with using 5G Fund 
support to fund proposed projects to provide advanced, 5G mobile 
broadband service using facilities that would be located on Tribal 
lands that would benefit Tribal communities and serve the public 
interest? Should the Commission use existing high-cost universal 
service Tribal engagement requirements to develop the criteria 
necessary to evidence Tribal consent in order to provide more 
consistency and predictability for both Tribal governments and service 
providers during the 5G Fund long-form application authorization 
process?
    8. If the Commission adopts a Tribal consent requirement during the 
5G Fund long-form application process, how could it structure a 
requirement for a 5G Fund Phase I auction winning bidder to demonstrate 
during the long-form application process, and prior to being authorized 
to receive support, that it has obtained the relevant Tribal 
government's consent? Given Tribal sovereignty, how should the 
Commission address circumstances in which a Tribal government neither 
declines nor provides consent? How might the Commission use existing 
Tribal engagement requirements to assess the winning bidder's efforts 
to obtain Tribal consent? What are the costs and burdens of such 
requirements to providers? How might they be expected to influence 
auction participation or bidding for support in Tribal lands? As the 
Commission considers how to frame a requirement for Tribal consent, it 
also seeks comment on whether it should include parameters similar to 
the those that the Commission includes for a winning bidder that is 
applying for a Tribal Land Bidding Credit (TLBC) to demonstrate its 
compliance with any Tribal consent requirement the Commission may 
adopt.
    9. For instance, using the TLBC requirements as a guide, the 
Commission could include a requirement that within 180 calendar days 
after the filing deadline for a 5G Fund long-form application, an 
applicant seeking 5G Fund support to provide service on Tribal lands 
must amend its application to submit a certification from the Tribal 
government(s) that it has granted any required Tribal consent. See 47 
CFR 1.2110(f)(3)(ii)(A). In particular, the Commission could require 
that the certification of Tribal consent include: the signature of an 
official of the Tribal Government and their title; a statement that the 
Tribal government has not and will not enter into an exclusive contract 
with the applicant to preclude entry by other carriers and will not 
unreasonably discriminate among wireless carriers seeking to provide 
service on the eligible Tribal land; and a statement that the Tribal 
government will, as applicable, permit the applicant to locate and 
deploy facilities on the Tribal land consistent with the 5G Fund public 
interest obligations and performance requirements. The Commission's 
existing 5G Fund long-form application rules already require an 
applicant to certify that it will comply with all 5G Fund program 
requirements, including its public interest obligations and performance 
requirements, in the areas for which it is a winning bidder, including 
any such areas that are on Tribal lands. See 47 CFR 54.1014(b)(2)(vii). 
Would using the TLBC certification model, together with this existing 
long-form application certification required of an applicant seeking to 
be authorized for 5G Fund support, adequately reflect the contours of 
Tribal government consent in this context? Under this model, once the 
certifications from the applicant and the consent of the Tribal 
government(s) being served are received and reviewed by the Commission 
and determined to be consistent with the 5G Fund rules, 5G Fund support 
may be authorized. Should the Commission consider revising the TLBC 
certification parameters for the purposes of the 5G Fund? Should the 
Commission include any additional provisions to demonstrate Tribal 
consent if it adopts such a requirement? Should the Commission require 
fewer or alternative provisions? Should a process such as the TLBC 
certification process be adopted, the Commission seeks comment on how 
it might be able to incorporate flexibility in such a process.
    10. In the event that the Commission adopts a Tribal consent 
requirement for the 5G Fund Phase I auction long-form application 
process, how can it ensure that consent is valid throughout the term of 
support? Should a winning bidder's failure to obtain Tribal consent be 
considered an auction default under the Commission's existing rules? 
Should there be additional or alternative compliance or enforcement 
mechanisms?
    11. Finally, if the Commission adopts a Tribal consent requirement 
for the 5G Fund, how can it assist in dispute resolution in the event 
that a Tribal government reconsiders its consent? Would the Commission 
need to adopt a specific Tribal consent dispute resolution process? 
Commenters should address any other issues the Commission should 
consider in adopting rules related to a Tribal consent requirement for 
a 5G Fund Phase I auction long form applicant to demonstrate that it 
has obtained the consent of the relevant Tribal government(s) for any 
necessary access to deploy network facilities using its 5G Fund support 
on Tribal lands within the area(s) of its winning bid(s).
    12. Are there any reasons why the Commission should decline to 
adopt such a requirement? Should the Commission consider requiring 
something less than Tribal consent (e.g., a different type of 
engagement than the current requirement in Sec.  54.313(a)(5) of the 
Commission's rules, 54 CFR 313(a)(5))?

Procedural Matters

    13. Regulatory Flexibility Act. As required by the Regulatory 
Flexibility Act of 1980, as amended (RFA), the Commission has prepared 
this Supplemental Initial Regulatory Flexibility Analysis (Supplemental 
IRFA) of the possible significant economic impact on a substantial 
number of small entities by the policies and rules proposed in the 
Second FNPRM to supplement the Commission's Regulatory Flexibility 
Analyses completed in the 5G Fund NPRM, 85 FR 31616 (May 26, 2020), 5G 
Fund Report and Order, 5G Fund FNPRM, and 5G Fund Second Report and 
Order and Order on Reconsideration. The Commission requests written 
public comment on this Supplemental IRFA. Comments must be identified 
as responses to the Supplemental IRFA and must be filed by the 
deadlines for comments on the

[[Page 76019]]

Second FNPRM. The Commission will send a copy of the Second FNPRM, 
including this Supplemental IRFA, to the Chief Counsel for Advocacy of 
the Small Business Administration (SBA).
    14. The Commission seeks comment in the Second FNPRM on whether to 
require a winning bidder in the 5G Fund Phase I auction to demonstrate 
during the long-form application process, and prior to being authorized 
to receive support, that it has obtained the consent of the relevant 
Tribal government(s) for any necessary access to deploy network 
facilities using its 5G Fund support on Tribal lands within the area(s) 
of its winning bid(s). The Commission seeks comment on whether 
including a Tribal consent requirement would advance the goals of the 
5G Fund and would be administratively efficient for all parties and the 
Commission. The Commission tentatively concludes that adopting a Tribal 
consent requirement in its 5G Fund rules is consistent with its long-
standing recognition that engagement between Tribal governments and 
communications providers, particularly early engagement, is an 
important element to promote the successful deployment and provision of 
service on Tribal lands. In seeking comment on this issue, the 
Commission asks commenters to provide input on how it can best assess 
an applicant's eligibility to be authorized to receive 5G Fund support 
for the purpose of deploying network facilities that would enable 5G 
mobile broadband service located on Tribal lands, while incorporating 
Tribal government consent into the Commission's approval process.
    15. The proposed action is authorized pursuant to sections 4(i), 
214, 254, 303(r), and 403 of the Communications Act of 1934, as 
amended, 47 U.S.C. 154(i), 214, 254, 303(r), and 403, and Sec. Sec.  
1.1 and 1.421 of the Commission's rules, 47 CFR 1.1 and 1.421.
    16. The RFA directs agencies to provide a description of, and, 
where feasible, an estimate of the number of small entities that may be 
affected by the proposed rules, if adopted. The RFA generally defines 
the term ``small entity'' as having the same meaning as the terms 
``small business,'' ``small organization,'' and ``small governmental 
jurisdiction.'' In addition, the term ``small business'' has the same 
meaning as the term ``small-business concern'' under the Small Business 
Act. A ``small-business concern'' is one which: (1) is independently 
owned and operated; (2) is not dominant in its field of operation; and 
(3) satisfies any additional criteria established by the SBA.
    17. Regulatory Flexibility Analyses were incorporated into the 5G 
Fund NPRM, 5G Fund Report and Order, 5G Fund FNPRM, and 5G Fund Second 
Report and Order and Order on Reconsideration. In those analyses, the 
Commission described in detail the small entities that might be 
significantly affected. In this Supplemental IRFA, the Commission 
hereby adopts by reference the descriptions and estimates of the number 
of small entities from the previous Regulatory Flexibility Analyses in 
the 5G Fund NPRM, 5G Fund Report and Order, 5G Fund NPRM, 5G Fund 
Report and Order, 5G Fund FNPRM, and 5G Fund Second Report and Order 
and Order on Reconsideration.
    18. In the 5G Fund Report and Order, the Commission adopted 
requirements for winning bidders to submit a post-auction long-form 
application in which they must submit ownership, agreement, and 
spectrum access information, as well as information about their 
qualifications, funding, and the networks they intend to use to meet 
their 5G Fund public interest obligations and performance requirements. 
In the Second FNPRM, the Commission seeks comment on whether to add to 
the existing long-form application requirements a requirement that a 
winning bidder in the 5G Fund Phase I auction demonstrate during the 
long-form application process that it has obtained the consent of the 
relevant Tribal government(s) for any necessary access to deploy 
network facilities using its 5G Fund support on Tribal lands within the 
area(s) of its winning bid(s). If the Commission ultimately adopts a 
rule that would amend its existing rules to require that 5G Fund Phase 
I auction winning bidders make this demonstration during the long-form 
application process, it would impact the reporting, recordkeeping, and 
other compliance requirements for small business and other carriers 
that apply for 5G Fund support to serve Tribal lands within the area(s) 
of their winning bid(s).
    19. In assessing the cost of compliance for small entities, record 
does not include a detailed cost-benefit analysis that would allow the 
Commission to quantify such costs, including whether small entities 
will be required to hire professionals, and therefore cannot currently 
quantify the cost of compliance resulting from an adopted requirement 
that winning bidders demonstrate during the long-form application 
process that they have obtained the consent of the relevant Tribal 
government(s) for any necessary access to deploy network facilities 
using its 5G Fund support on Tribal lands within the area(s) of their 
winning bid(s). The Commission anticipates, however, that the comments 
the Commission receives will discuss the compliance costs or burdens 
resulting from any potential changes to the long-form application 
rules, and may help the Commission identify and evaluate other relevant 
compliance matters for small entities associated with this possible 
requirement, should changes be adopted in this proceeding.
    20. The RFA requires an agency to describe any significant 
alternatives that could minimize impacts to small entities that it has 
considered in reaching its proposed approach, which may include the 
following four alternatives (among others): ``(1) the establishment of 
differing compliance or reporting requirements or timetables that take 
into account the resources available to small entities; (2) the 
clarification, consolidation, or simplification of compliance or 
reporting requirements under the rule for such small entities; (3) the 
use of performance rather than design standards; and (4) an exemption 
from coverage of the rule, or any part thereof, for such small 
entities.''
    21. The Commission has taken steps to minimize any economic impact 
from a potential requirement that a winning bidder in the 5G Fund Phase 
I auction demonstrate during the long-form application process that it 
has obtained the consent of the relevant Tribal government(s) for any 
necessary access to deploy network facilities using its 5G Fund support 
on Tribal lands within the area(s) of its winning bid(s) on small 
entities. For example, given the potential challenges that 
incorporating a Tribal consent requirement might raise in the 5G Fund 
long-form application process, the Commission seeks comment in the 
Second FNPRM on whether it should consider following the same Tribal 
engagement approach used by the Commission in the Enhanced A-CAM 
program, rather than adopting a Tribal consent requirement. The 
Commission also asks in the Second FNPRM whether there are other 
alternatives to a Tribal consent requirement we should consider that 
would result in more equitable and informed outcomes in connection with 
using 5G Fund support to fund proposed projects to provide advanced, 5G 
mobile broadband service using facilities that would be located on 
Tribal lands that would benefit Tribal communities and serve the public 
interest.
    22. The Commission likewise seeks comment in the Second FNPRM on 
how it could structure a potential requirement for a 5G Fund Phase I

[[Page 76020]]

auction winning bidder to demonstrate during the long-form application 
process that it has obtained the relevant Tribal government's consent 
and, for example, whether we should include parameters similar to the 
those that the Commission includes for a spectrum auction winning 
bidder that is applying for a Tribal land bidding credit (TLBC) for a 
5G Fund winning bidder to demonstrate its compliance with any Tribal 
consent demonstration requirement the Commission may adopt. The 
Commission also seeks comment on whether, if it were to include 
parameters similar to the those that the Commission includes for a 
spectrum auction winning bidder that is applying for a Tribal land 
bidding credit in any such 5G Fund Tribal consent requirement it may 
adopt, whether it should include all of the TLBC certification 
parameters for the purposes of the 5G Fund or, alternatively, whether 
it should adopt additional or fewer provisions than required for 
spectrum auction winning bidders seeking a TLBC. Further, the 
Commission seeks comment on how it might be able to incorporate 
flexibility if we were to adopt a process such as the TLBC 
certification process in connection with any Tribal consent 
demonstration requirement it may adopt. Finally, the Commission seeks 
comment on whether it should consider requiring something less than 
Tribal consent of winning bidders (e.g., a different type of engagement 
than the current requirement in Sec.  54.313(a)(5)).
    23. The Commission expects to more fully consider the economic 
impact and alternatives for small entities following the review of 
comments and costs and benefits analyses filed in response to the 
Second FNPRM. The Commission's evaluation of this information will 
shape the final alternatives it considers, the final conclusions it 
reaches, and any final actions it ultimately takes in this proceeding 
to minimize any significant economic impact that may occur on small 
entities.
    24. There are no federal rules that duplicate, overlap, or conflict 
with the rules proposed herein.
    25. Ex Parte Presentations--Permit-But-Disclose. The proceeding 
this document initiates shall be treated as a ``permit-but-disclose'' 
proceeding in accordance with the Commission's ex parte rules. Persons 
making ex parte presentations must file a copy of any written 
presentation or a memorandum summarizing any oral presentation within 
two business days after the presentation (unless a different deadline 
applicable to the Sunshine period applies). Persons making oral ex 
parte presentations are reminded that memoranda summarizing the 
presentation must: (1) list all persons attending or otherwise 
participating in the meeting at which the ex parte presentation was 
made; and (2) summarize all data presented and arguments made during 
the presentation. If the presentation consisted in whole or in part of 
the presentation of data or arguments already reflected in the 
presenter's written comments, memoranda or other filings in the 
proceeding, the presenter may provide citations to such data or 
arguments in his or her prior comments, memoranda, or other filings 
(specifying the relevant page and/or paragraph numbers where such data 
or arguments can be found) in lieu of summarizing them in the 
memorandum. Documents shown or given to Commission staff during ex 
parte meetings are deemed to be written ex parte presentations and must 
be filed consistent with Sec.  1.1206(b) of the Commission's rules. In 
proceedings governed by Sec.  1.49(f) of the Commission's rules or for 
which the Commission has made available a method of electronic filing, 
written ex parte presentations and memoranda summarizing oral ex parte 
presentations, and all attachments thereto, must be filed through the 
electronic comment filing system available for that proceeding, and 
must be filed in their native format (e.g., .doc, .xml, .ppt, 
searchable .pdf). Participants in this proceeding should familiarize 
themselves with the Commission's ex parte rules.

Ordering Clauses

    26. It is ordered that, pursuant to the authority contained in 
sections 4(i), 214, 254, 303(r), and 403 of the Communications Act of 
1934, as amended, 47 U.S.C. 154(i), 214, 254, 303(r), 403, and 
Sec. Sec.  1.1 and 1.421 of the Commission's rules, 47 CFR 1.1, 1.421, 
this Second FNPRM is adopted.
    27. It is further ordered that the Commission's Office of the 
Secretary, shall send a copy of this Second FNPRM, including the 
Supplemental Initial Regulatory Flexibility Analysis, to the Chief 
Counsel for Advocacy of the Small Business Administration.

Federal Communications Commission.
Marlene Dortch,
Secretary.
[FR Doc. 2024-20979 Filed 9-16-24; 8:45 am]
BILLING CODE 6712-01-P
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