But even before Standing Rock and other tribes formally responded to the proposal, Indian Country put the FCC on notice. During an extraordinary January 24 conference call, every single tribal representative -- nearly two dozen were on the line -- made clear that the outreach has been a failure in their eyes. "We never even got the first email about this consultation," said Rhonda Hayworth, the longtime historian and librarian for the Ottawa Tribe. "So, it can't be government-to-government consultation without a formal invitation." Despite the concerns, tribes are facing a formidable opponent -- an industry that boasts of contributing trillions of dollars to the American economy. Wireless firms and advocacy groups are eagerly defending the FCC and are pushing back on complaints about inadequate consultation. According to CTIA, which represents wireless communications companies, the FCC's proposal is "based on substantial record support and engagement from interested parties that properly reflects the commission’s trust responsibility and does not diminish the ability of tribes to protect historic sites of cultural or religious significance." The organization's comment letter, which was submitted on Friday, was critical not just of the National Association of Tribal Historic Preservation Officers, a non-profit, but of the National Congress of American Indians and the United South and Eastern Tribes. It insinuated that the organizations were spreading misinformation about the FCC's initiative, including a controversial component that would address fees paid by wireless firms to tribes. Tribes and their historic preservation offices use the fees to conduct studies and ensure that wireless infrastructure won't harm important sites. Though the payments are entirely voluntary, the industry wants the FCC to declare that they have "no legal obligation to pay up-front fees when providing tribes an opportunity to comment," a comment submitted by T-Mobile, one of the largest telecommunications companies in the world, stated.
But even if industry interests weren't supporting the changes, tribes have reason to worry. The FCC official in charge of the proposal, who was nominated by President Donald Trump, has already singled out the Section 106 fees -- whose name comes from the section of the National Historic Preservation Act that mandates consultation with tribes and Native Hawaiians -- as an obstacle to the deployment of wireless technology. "When one provider deployed a new small cell on a pole outside an industrial steel factory in East Chicago, Indiana, it paid over $12,000 in Section 106 fees -- even though everyone agreed the installation would not affect tribal interests," said Commissioner Brendan Carr, whose February 28 speech at an event hosted by an industry group marked the first sign that the changes were coming despite Indian Country's concerns. "That same provider paid nearly $12,000 in Section 106 fees for one deployment between a highway and a sidewalk in Ohio." According to Carr, another provider -- which he did not name -- expects to spend $29 million in Section 106 fees this year for "small" wireless deployments. He also said a second unidentified firm was going to spend $45 million this year in other "review" fees. Based on CTIA's recently submitted letter, the second firm appears to be AT&T, whose market cap has regularly topped $200 billion since late 2015. The fees being paid represent about 0.02 percent of its value.
Here's a one-page summary of my #5gReady infrastructure speech, which set out a plan for wining the global race to 5G and promoting next-generation innovation in the U.S.https://t.co/GAFXOrEnqS pic.twitter.com/bq3mOEWk03— Brendan Carr (@BrendanCarrFCC) February 28, 2018
Carr and his fellow Trump appointees control three seats on the FCC. That means they are able to push through new policies, even controversial ones like a recent vote affecting net neutrality, over the objections of the other two members, who were nominated by former president Barack Obama and confirmed by the Senate. "When that choice is between tribes and industry, this administration leans heavily, if not entirely, to the industry side,” Rep. Raúl Grijalva (D-Arizona), the top Democrat on the House Committee on Natural Resources, told tribal leaders at NCAI's winter conference in Washington, D.C., last month. Against the backdrop, some of Grijalva's fellow Democrats are calling on Carr to "reconsider" the proposal. In a letter on Tuesday, they said tribes have raised valid concerns about the need to protect their aboriginal lands, grave sites and other important locations. "If the FCC were to carve out small wireless facilities from NHPA, the commission could be subjecting culturally significant sites to death by hundreds of thousands of small-cell cuts," Rep. Anna G. Eshoo (D), Rep. Frank Pallone, Jr. (D-New Jersey) and Rep. Raul Ruiz (D-California) stated in the letter. All three lawmakers serve on the House Energy and Commerce Committee, which has jurisdiction over telecommunications issues. Pallone is the top Democrat on the panel. The FCC will be voting on the Wireless Infrastructure Streamlining Order at the meeting in D.C. on Thursday morning. Interest has been strong -- according to the agency's filings system, more than 840 comments have been submitted, with 171 filed in the past 30 days alone. That makes it one of the most active proceedings on the FCC's docket.