E-rate and the Lands the Information Age Forgot

As the Federal Communications Commission considers proposals and recommendations to update its E-rate program, the Benton Foundation is paying close attention to the role of the E-rate in bringing high-capacity broadband to underserved populations, especially those who either have no access to broadband at home, or cannot afford to pay for it. The lack of fundamental telecommunications infrastructure throughout Tribal Lands and Native Communities in the U.S., and particularly on reservations, is an acute and nagging problem that a reformed E-rate program could do much to address. Members of federally-recognized American Indian Tribes and Alaska Native Villages, “[b]y virtually any measure, … have historically had less access to telecommunications services than any other segment of the population.” In starkest terms, these communities are the lands that the Information Age has forgot:

• Telephone penetration rates are significantly lower than the nationwide rate. Although the national rate of wireline and wireless telephone subscribership was 97.6%, only 67.9% of Native American households on Tribal lands had telephone service.(1)
• The Government Accountability Office noted in 2006 that “the rate of Internet subscribership [on Tribal lands] is unknown because no federal survey has been designed to capture this information for Tribal lands.”
• There is minimal access to broadband in Indian Country. Although 95% of the U.S. population as a whole lives in housing units with access to terrestrial, fixed broadband infrastructure,(2) and approximately two-thirds of all households nationwide subscribe to such services,(3) the best evidence indicates that the broadband deployment rate on Tribal lands is less than 10 percent, and anecdotal evidence suggests that actual usage rates may be as low as 5 to 8 percent, compared to 65 percent nationwide.

Many Tribal communities face significant obstacles to the deployment of broadband infrastructure, including high buildout costs, limited financial resources that deter investment by commercial providers and a shortage of technically trained members who can undertake deployment and adoption planning. American Recovery and Reinvestment Act funding programs administered by National Telecommunications and Information Administration (NTIA) and Rural Utilities Service (RUS) did not specifically target funding for projects on Tribal lands and were insufficient to address all of these challenges. Tribes need substantially greater financial support than is presently available to them, and accelerating Tribal broadband deployment will require increased funding.(4)

In a joint filing in the FCC’s E-rate proceeding, the Department of Interior’s Bureaus of Indian Affairs and Indian Education (BIE) note that programs administered by either Tribes or Indian Affairs through the BIE include an education system consisting of 183 schools and dormitories educating approximately 42,000 elementary and secondary students and 28 tribal colleges, universities, and post-secondary schools. (5) Seventy-five percent of BIE students receive free or reduced lunches. But this is a small percentage of the total Native student population. There are 607,000 native students attending public and BIE schools – two-thirds of which attend rural schools. (6)

Many of these students are struggling to meet standards and reach their full potential: (7)

• In 2011, only 18 percent of Native fourth-graders were proficient or advanced in reading on the National Assessment of Educational Progress (NAEP), as compared with 42 percent of white fourth-graders.
• In 2011, only 17 percent of Native eighth-graders were proficient or advanced in math, and nearly half — 46 percent — were below the basic level. The numbers for white students were exactly the opposite — 17 percent of white eighth-graders were below basic, and 43 percent were proficient or advanced.
• About 69 percent of Native high school students graduate in four years, compared with about 83 percent of white students.
• Only 1 in 4 Native graduates who took the ACT scored at the college-ready level in math, and about one-third scored at the college-ready level in reading. Among white graduates who took the ACT, more than half scored at the college-ready level in math, while nearly two-thirds scored college ready in reading.
• Only 52 percent of Native students who graduated in 2004 enrolled in college immediately after high school, as compared with 74 percent of white students.

These disparities in education outcomes make access to 21st century learning models via technology all the more important for Native students. It is critical that Native students have the same opportunity as their non-Native counterparts in accessing high capacity broadband Internet technologies. Otherwise, Native children will be left behind as education tools increasingly become digital. Native students are already less likely to attend a high school that offers Advanced Placement courses than their peers. (8) But even though more AP courses are available online, without robust broadband access, Native students still will not be able to take these courses.

The Navajo Nation Telecommunications Regulatory Commission (NNTRC) identifies five factors that make it difficult for Tribal lands to participate in the E-rate program:

1. Lack of adequate physical infrastructure on reservations;
2. Difficulty in building anything in Indian Country because of complications with land status, rights of way, and building regulations;
3. Lack of engineering and technical resources available to tribes;
4. Lack of training in E-rate compliance; and
5. Lack of internal financial resources to solve the lack of technical, engineering, and regulatory compliance workforce in Indian Country.

In addition, NNTRC addresses issues surrounding Tribal jurisdiction and sovereignty. In its vast but sparsely-populated lands, the Navajo Nation has designated its 110 Chapter Houses as auxiliary libraries. The Gates Foundation found that these Chapter Houses functioned as libraries and donated computers so that the Navajo Nation could begin participating in the E-rate Program. But in 2011, the Universal Service Administrative Company (USAC), which distributes E-rate funding, determined that these Chapter Houses didn’t “look” like traditional libraries, and therefore ruled that they were not eligible for E-rate support. The Navajo Nation has appealed these USAC decisions. Under the current rules, Tribes are required to have their libraries certified by states. (9) This requirement violates the sovereignty of Native Nations, who under the Constitution are recognized as having jurisdiction over internal affairs.

Given these unique difficulties and systemic structural problems with the E-rate regulations, NNTRC asks the FCC to reform the E-rate to:

• Allow more flexibility for Tribes in build-outs and other activities where doing business on reservations is far more difficult and time consuming; and
• Recognize the sovereign rights of Tribes and honor the government-to-government relationship between Tribes and the FCC.

The National Indian Education Association (NIEA) is offering specific recommendations for how the FCC can reform the E-rate program to help meet the needs of Native communities:

• Increase funding for E-rate to levels that match requested need without diverting funds from other critical universal service programs.
• Develop a ‘tribal priority’ for E-rate funding of tribal schools and libraries, including non-Native institutions serving a high percentage of Native students.
• Increase the discount made available to Native communities.
• If the commission increases matching requirements for E-rate, the FCC should exempt schools and libraries operated by the BIE, tribal governments, or those that predominantly serve Native populations from the matching requirement. Such requirements could likely have the unintended consequence of causing fewer Native-serving institutions to participate in the program because they lack access to private contributions due to their often rural and isolated locations as well as the impoverished nature of some Native communities in which they are situated.
• The FCC should look at other technological advancements that could compliment and upgrade current, existing copper networks located in Native communities.
• The FCC must also take into consideration a school’s rural or isolated location as a key factor in determining E-rate funds to increase that institution’s capacity to deliver high-quality broadband services. Many Native-serving institutions are geographically isolated and rely on copper cables for communication links. While directing resources to fiber networking is necessary to increase broadband access, there must continue to be adequate resources available to maintain and ensure service via traditional models.
• If the FCC directs funds to increase broadband via fiber networks, the commission should ensure traditional models have adequate funding so they will continue to function as a community’s lifeline if other, more modern connections fail.

The FCC has already recognized the important role anchor institutions like schools and libraries can play in bringing broadband to communities as well as the unique circumstances in Tribal lands. In the National Broadband Plan, the FCC recommended that:

• Any approach to increasing broadband availability and adoption should recognize Tribal sovereignty, autonomy and independence, the importance of consultation with Tribal leaders, the critical role of Tribal anchor institutions, and the community oriented nature of demand aggregation on Tribal lands. (Recommendation #68)
• Congress should consider establishing a Tribal Broadband Fund to support sustainable broadband deployment and adoption in Tribal lands, and all federal agencies that upgrade connectivity on Tribal lands should coordinate such upgrades with Tribal governments and the Tribal Broadband Fund grant-making process. (Recommendation #81)
• Federal and state policies should facilitate demand aggregation and use of state, regional and local networks when that is the most cost-efficient solution for anchor institutions to meet their connectivity needs. (Recommendation #82)
• The federal government and state governments should develop an institutional framework that will help America’s anchor institutions obtain broadband connectivity, training, applications and services. (Recommendation #83)
• Congress should consider amending the Communications Act to provide discretion to the FCC to allow anchor institutions on Tribal lands to share broadband network capacity that is funded by the E-rate or the Rural Health Care program with other community institutions designated by Tribal governments. (Recommendation #84)
• The Executive Branch, the Federal Communications Commission and Congress should consider making changes to ensure effective coordination and consultation with Tribes on broadband related issues. (Recommendation #99)
• Congress should consider providing an incremental sum for the Indian Health Service for the purpose of upgrading its broadband service to meet connectivity requirements. (Recommendation #109)
• Congress should consider amending the Communications Act to help Tribal libraries overcome barriers to E-rate eligibility arising from state laws. (Recommendation #132)

There are 4.1 million American Indians and Alaska Natives in the United States and more than 565 federally recognized Tribes with their own unique political and Tribal structures. After attending the Native Public Media and Native American Journalists Association joint conference in Tempe, AZ, earlier this summer, former-FCC Commissioner Michael Copps, in an op-ed for Benton's Digital Beat blog, suggested we declare a national broadband emergency. Copps wrote:

"[T]here is no way—no way at all—for a citizen of Twenty-first century America to get by without ... digital tools. And there is no challenge confronting our nation that does not have a significant broadband component as part of its resolution. Finding and creating good jobs, providing adequate health care, supporting better schools, ensuring energy independence, preserving our environment, opening the doors of opportunity to every American—each of these depends to a large and growing extent on broadband.... Declaring a national broadband emergency means facing up to the magnitude of the problem, incentivizing creative public-private partnerships ... and deciding this mission will be accomplished no matter what. That is when you and I will know that our leaders are finally serious about broadband."

Having identified the extent of the Digital Divide in Indian Country, having set out a course in recommendations in the National Broadband Plan, having specifically asked in the E-rate proceeding whether the unique circumstances on Tribal Lands necessitate a different approach for these areas, will the FCC find a way to deliver high-capacity broadband to Native American students and teachers? Are we serious about Native American broadband? Or will Tribal communities remain the lands the Information Age forgot?

Notes:

1. Telephone Subscribership on American Indian Reservations and Off-Reservation Trust Lands, Federal Communications Commission, May 2003, at 1 (“Telephone Subscribership Report”). The Telephone Subscribership Report uses 2000 decennial census long form information. See also Trends in Telephone Service, Federal Communications Commission, September 2010, at 16-4 (Table 16.2 provides a comparable nationwide number).
2. Connecting America: The National Broadband Plan, p. 20.
3. John Horrigan, Broadband Adoption and Use in America, at 13 (OBI Working Paper No. 1, 2010).
4. Connecting America: The National Broadband Plan, p. 146
5. Bureau of Indian Affairs -- What We Do http://bia.gov/WhatWeDo/ServiceOverview/index.htm
6. See U.S. Department of Education, National Center for Education Statistics, “Public Elementary and Secondary School Student Enrollment and Staff Counts From the Common Core of Data: School Year 2010–11,” Table 2 (Washington, D.C.: April 2012), . U.S. Department of Education, National Center for Education Statistics, “Condition of Education 2012,” Table A-13-2 (Washington, D.C.: 2012). U.S. Department of Education.
7. See Center for Education Statistics, “Public School Graduates and Dropouts from the Common Core of Data: School Year 2009–10” (Washington, D.C.: January 2013). U.S. Department of Education, National Center for Education Statistics, National Indian Education Study NAEP Data Explorer, (Results include public and BIE schools).
8. Christina Theokas and Reid Saaris, Finding America’s Missing AP and IB students (Washington, D.C.: The Education Trust and Equal Opportunity Schools, June 2013), .
9. Under the Communications Act, a library can be eligible for E-rate funding only if it is eligible for assistance from a state library administrative agency under the Library Services and Technology Act (LSTA). LSTA has two types of library grants that primarily relate to governmental entities: one for states and one for federally recognized Tribes and organizations that primarily serve and represent Native Hawaiians. To be eligible for E-rate funds, a Tribal library must be eligible for state LSTA funds and not just Tribal LSTA funds. However, some states preclude Tribal libraries from being eligible to receive state LSTA funds, thus making Tribal libraries in those states ineligible for E-rate funding.