Appeals court hands lifeline to 'Lifeline' program in Indian Country

Tuesday, August 14, 2018  

Controversial changes to a program that helps tribal citizens obtain telephone, cell phone and internet service are on hold thanks to a federal appeals court.

In an order on Friday, the D.C. Circuit Court of Appeals handed a lifeline to the Tribal Lifeline program at the Federal Communications Commission. The move temporarily prevents the FCC, an independent federal agency, from cutting off a subsidy deemed essential for tribal citizens who often struggle to find adequate phone and broadband service on their homelands.

"Our people have long suffered from flawed federal government policies and actions, so the court's decision today is an important step in righting past injustices and allowing residents of tribal lands to obtain critical Lifeline services," said Joe RedCloud, who serves as the executive director of the Oceti Sakowin Tribal Utility Authority, one of the groups fighting to keep the Tribal Lifeline alive.

The order, issued by the clerk of the court, does not completely protect the Tribal Lifeline, which began during the Reagan administration and has long been seen as a way to bridge the so-called digital divide in Indian Country. The D.C. Circuit is still accepting briefs and must schedule arguments before making a ruling on the merits.

But the document notes that Oceti Sakowin and the Crow Creek Sioux Tribe have already provided enough evidence to undermine the FCC, which narrowly voted 3 to 2 late last year to eliminate the $25 subsidy provided to eligible residents.

"Residents of tribal lands, like many low-income consumers, rely on Lifeline service from wireless resellers, who are the primary, and sometimes only, providers of Lifeline service," said Gene DeJordy, an attorney for the Crow Creek Sioux Tribe. "The victory today is for the people -- tribal members who cannot afford many of the basic necessities of life and rely on Lifeline service for their telephone and broadband needs."

The changes at issue were approved by the FCC over tribal objections in November 2017. In what is known as a Fourth Report and Order, the agency claimed that getting rid of the $25 subsidy would eliminate "waste" and "incentivize" telecommunications development in Indian Country

"Targeting enhanced Lifeline Tribal support to rural tribal areas ends this waste and directs federal help to members who really need the help," Chairman Ajit Pai, who was designated to his post by President Donald Trump, said at the time.

Pai's efforts are supported by two fellow Republicans on the regulatory body -- commissioners Michael O'Rielly and Brendan Carr.

The court's order, however, paints the opposite picture. According to the document, the FCC has so far failed to justify any of the reasoning behind its controversial action.

"The Federal Communications Commission has identified no evidence of fraud or misuse of funds in the aspects of the program at issue here," the order reads.

"On the other hand, petitioners have shown a substantial risk that tribal populations will suffer widespread loss of vital telecommunications services absent a stay," it continues.

The order also contradicts Pai's assertion about encouraging service providers to expand their offerings on tribal lands. Cutting off the Lifeline subsidy might actually have the opposite effect, the court said.

"On the contrary, petitioners credibly assert that providers have generally declined to offer Lifeline service in many tribal regions in the nearly two decades since the implementation of the Tribal Lifeline program, and furthermore that the order’s new eligibility requirements do not attract providers to expand into those previously-ignored regions," the court stated.

Oceti Sakowin and Crow Creek had asked the FCC to reconsider its earlier action but the agency denied the request in early July. But the tribes aren't alone in their quest to protect the Lifeline either -- consumer advocates, civil rights and faith-based groups are also calling on the agency to maintain the subsidy.

The advocacy community was very disappointed by the FCC’s failure to engage in government-to-government tribal consultations per the FCC’s own long-established procedure concerning proposals that impact Indian Country,” said Olivia Wein, an attorney with the National Consumer Law Center, which supports the tribal efforts.

The Lifeline program, first established in 1985, provides qualified recipients with a $9.25 monthly credit toward the costs of telephone (wired or wireless) service. It can also be used to offset the costs of internet service.

Due to limited infrastructure in Indian Country, the Tribal Lifeline program provides an "enhanced" benefit, amounting to an additional $25 credit for eligible consumers on tribal lands. It is this subsidy which Pai and his Republican allies on the FCC are trying to eliminate.

According to the FCC's own documents, some 361,000 customers on tribal lands benefited from the "enhanced" Lifeline program in 2016. That's actually a decrease from the year prior, when 418,000 participated.

The program expanded in popularity during the Obama administration, according to the figures. The peak number of Indian Country subscribers to Tribal Lifeline was 761,000 in 2012.

The FCC's elimination of the Tribal Lifeline subsidy isn't the only decision being opposed in Indian Country. Tribes are also in court in hopes of blocking changes they say will make it harder to protect sacred sites and ancestral territories. The changes were advanced by Pai and his Republican allies on the FCC.

The Lifeline case, National Lifeline Association v. FCC, No. 18-1026, has been assigned to Judges Sri Srinivasan, Patricia A. Millett and Cornelia T.L. Pillard. All three were nominees of former president Barack Obama.

Additional Action Needed to Address Significant Risks in FCC's Lifeline Program (June 2017)

Tribes prepare court challenge after FCC adopts contentious policy (March 22, 2018)