Stuck between the FCC and Congress: can Tribal libraries receive federal subsidies on telecommunications services?

I am Kate Hanley, and I am a third year law student at the University of California, Davis, and I am also a librarian. For the next few months, I will be guest-blogging for Legal Ruralism. This blog is hosted by UC Davis Professor Lisa R. Pruitt, and she kindly shares this space with her students. For my introductory post, I wanted to highlight something near and dear to me: the state of Internet access in Indian country, and how Federal Communications Commission (FCC) Chairman Tom Wheeler's comments from a June 2014 panel discussion seem divorced from the reality that many Tribal libraries face when they want to provide Internet access to their communities.

The U.S. estimates that 65% of Americans have wired broadband internet at home. That estimate drops to 50% when looking at Americans who live in rural places. But it is estimated that 10% or fewer Native Americans who live on Tribal lands have wired broadband connectivity at home. The poor state of Internet access in Indian country is a topic of interest for national media.

On June 30th, 2014, FCC Chairman Tom Wheeler publicly noted that 10% estimate to a crowd in Albuquerque, NM, who attended a panel discussion entitled Nuestras Voces/Our Voices: A Youth Dialogue with FCC Chairman Wheeler. Wheeler also acknowledged the expenses that Tribal libraries may pay in order to provide Internet access to its communities. Acoma Pueblo's library, for instance, spends $1,700 for Internet access each month. The library keeps its Internet access running all night so students may access it from the parking lot when the library is closed. In 43% of Tribal communities surveyed by the Association of Tribal Archives, Libraries, and Museums (ATALM), it was found that libraries like Acoma Pueblo's are the only source of free public computer and internet access. ATALM also found that many Tribal libraries offered poor quality connection speeds and services.

From news reports, it appears that Wheeler’s response to Acoma Pueblo’s expense was to encourage schools and libraries to apply for federal subsidies for Internet access. (This program is known as E-rate.) This suggestion makes sense from a distance. The U.S. subsidizes telecommunications and Internet access for schools and libraries as part of its commitment to give everyone in the U.S. access to advanced telecommunications services at reasonable rates regardless of their location. It is generally understood that Tribal schools and libraries are expected to be eligible for E-rate support. And ATALM's studies find that half of Tribal libraries have never heard of E-rate. Considering these facts, advertising and encouraging Tribal libraries to apply for E-rate support makes a lot of sense.

Unfortunately, knowledge of E-rate is not the only issue that Tribal libraries have to contend with. Many Tribes cannot receive E-rate support because of the way the Telecommunications Act of 1996 is phrased. To be eligible for E-rate support, a library must be eligible for funding from a State Library Administrative Agency (SLAA) (47 U.S.C. § 254(h)(4)). These state library programs are intermediaries of a sort; the federal government appropriates money to the federal Institute of Museum and Library Services (IMLS), IMLS parcels out funds to programs (such as state library agencies), and these state agencies provide funding to individual libraries. The majority of U.S. libraries are funded through state library agencies rather than directly through IMLS. Practically speaking, saying a library must be eligible for funding from a SLAA to receive E-rate support is short-hand for “we want this library to meet federal standards for funding”. But the legislators missed one little detail: Tribal libraries often get direct funding from IMLS and, due to specific state statutes and Tribal sovereignty, Tribal libraries that meet IMLS's requirements for funding do not necessarily qualify for funding from a state library agency. In this way, the Telecommunications Act does not appear to apply to a number of Tribal libraries that are eligible for federal funding.

The bottom line is that Tribal libraries will not necessarily get E-rate support if they apply for it, even though people like Wheeler understand that Tribal libraries are supposed to be eligible for the support.

This loophole has been recognized in the federal executive branch for at least the last eight years, but nothing is likely to change until Congress decides to change the Telecommunications Act's wording for E-rate eligibility. It's depressing. There is a lot of movement right now in E-rate as the FCC looks to expand broadband connectivity and implement Wi-Fi in schools and libraries, and legislative red tape is keeping Tribal libraries from participating in the program. I applaud Wheeler to spreading the word about E-rate, as it needs to be done. But considering this state of affairs, I can't help feeling that Wheeler told Indian country that it should eat cake when he was told they don't have access to bread.