FCC Declines to Extend Presumption Favoring Indian Tribes Seeking Spectrum Rights

Affirmative Action for Landed Tribes Only; Others Must Prove Eligibility for Preference

By Stu Nolan

After receiving opposition from the Catholic Radio Association (and solely the CRA), the FCC has declined to extend, at least in a per se fashion, a preference for American Indian applicants based solely on their status as American Indians. The decision concerned whether the so-called "tribal priority" would be extended to tribes without land. The agency announced it will still allow American Indians without tribal lands to receive the preference if they satisfy certain criteria for a waiver of the requirement that only landed tribes are default-eligible for the preferential treatment.

The Commission had adopted previously the preference for landed tribes pursuant to Section 307(b) of the Communications Act, with its mandate to facilitate increased broadcast service to underserved populations. The FCC had claimed this was not a race or ethnic-based classification that would be constitutionally suspect, but rather was justified because Indian Nations are semi-sovereign entities. Think of it as the FCC's own Most Favored Nation status policy.

The decision today (to require Indian applicants to show that they are indeed eligible for a waiver of the normal rule that only landed tribes receive the preference) is at least an improvement over a presumption of eligibility that would have discriminated against non-Indian applicants everywhere.

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