In a case invoking tribal sovereignty, the telephone company owned by the Mescalero Apache Tribe has succeeded in keeping T-Mobile off their reservation lands.
T-Mobile, which offers wireless voice, messaging and data services, was granted the designation as of an Eligible Telecommunications Carrier (ETC) by state regulators but not on the Mescalero Reservation.
ETCs are eligible for government financial support to expand communication services especially in rural, underserved area. And the designation, approved by the New Mexico Public Regulation Commission (PRC), will allow T-Mobile to participate in a September Federal Communications Commission auction of new locations to provide broadband and advanced mobile coverage, excluding the reservation.
In a filing with the PRC, Mescalero Apache Telecom, Inc. (MATI) legal counsel Alan Morel said MATI provides telecommunication services on the reservation. He said MATI also aspires to provide wireless broadband services to the reservation by taking part in an upcoming auction.
"T-Mobile West Corporation's petition for designation as a Eligible Telecommunications Carrier to participate in the Mobility Fund Phase I Auction completely ignores and disrespects the tribal sovereignty of the Mescalero Apache Tribe," Morel told the PRC. "T-Mobile failed to provide the Mescalero Apache Tribe or any other tribal entity within the state of New Mexico notice of their petition until ordered to do so by the New Mexico Public Regulation
MATI also argued that mobile phone and Internet coverage across the reservation would reduce the number of customers with the tribe's currently landline-only phone company and "will have a crippling effect on MATI's bottom line," a filing with the PRC stated.
In testimony before a PRC hearing examiner last month, T-Mobile Vice President David Conn conceded that it would be fair to state that landline phone companies are losing customers to wireless providers.
"If T-Mobile obtains ETC on the Mescalero Apache Reservation and provides wireless services that compete with MATI and that causes MATI to lose customers and thereby harm the tribal-owned telco, is that OK with T-Mobile?" Morel asked Conn.
"If that's the choice that customers make, the answer is yes," Conn replied. "We think customers should get to decide what kind of service they want."
Morel told the PRC that Conn indicated that T-Mobile would provide services on the reservation, "if he could over the tribal council's objection if necessary."
PRC Utility Economist Ken Smith said there were some special provisions in new FCC rules to address problems of telephone service in tribal areas.
"You know, the FCC is calling wireless service a legacy service," Smith testified before the PRC hearing examiner. "But there's areas that don't have cell towers built on the Navajo Reservation. So it's very difficult for something to be a legacy if you've never had it before."
Questioned by Morel, Smith said if the Mescalero Apache Tribe does not want the service on the reservation, it was probably not in the public interest to do so.
In a filing with the PRC, MATI argued that neither the commission nor T-Mobile have the ability to force the Mescalero Apache Tribe to allow T-Mobile onto the reservation to provide wireless services.
"Mescalero Apache Telecom is only one of eight tribally owned telephone companies in the United States," Morel said Monday. "The issue was just tribal sovereignty. T-Mobile just absolutely disrespected that. T-Mobile wanted to get ETC status to directly compete with MATI even though the tribe didn't want for them to come onto the reservation."
In issuing its final order last week and agreeing with the hearing examiner's recommendation, the PRC excluded Mescalero lands to T-Mobile.
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