On January 5, 2022, the National Telecommunications and Information Administration ("NTIA") released a request for comment on how best to design and implement the broadband programs that NTIA is responsible for administering under the $1.2 Trillion Infrastructure Investment and Jobs Act of 2021, also known as the Bipartisan Infrastructure Law (BIL). This legislation involves an historic (and record) congressional appropriation of $65 billion to finally close the digital divide to ensure that virtually all Americans have access to reliable, affordable, broadband. $48 Billion of this amount is to be administered by NTIA through several different programs. NTIA is requesting public comment on various questions regarding these programs by February 4, 2022.
The broadband funding awards process under the BIL involves an unprecedented federal/state construct for a two-stage application process. Initially, states and territories, relying on new FCC broadband mapping data to be released in 2022, will access up to $5 million to support planning efforts and to expand capacity in state broadband offices, before submitting a broadband plan to NTIA for approval. Once initial broadband plans are approved by NTIA, states will be able to access additional funds from their state allocation. Once that process of apportionment of funding to states and territories has occurred, states and territories will launch a competitive selection process to make broadband funding awards to “subgrantees” by a request for proposal or similar process.
Among the many questions raised by the Request for Comment, the following may be of particular interest to subgrantees of the state competitive award process:
(1) How should the state sub-award process be run? - How should NTIA evaluate the adequacy of a particular state’s sub-award process, particularly for the $42.45 Billion Broadband Equity, Access and Deployment (“BEAD”) infrastructure program? How can NTIA best ensure that all potential subgrantees have opportunities to partner and compete for funding under the programs? How will small and medium providers, non-profits, municipalities and larger for-profit providers all have meaningful participation to “partner and compete” for funding? NTIA seeks to ensure that “networks built using taxpayer funds are capable of meeting Americans’ evolving digital needs,” including sufficient broadband speeds, and are reliable, sustainable and can be upgraded. Should any particular broadband technologies be given priority or favored under project scoring as has been done under recent FCC-administered reverse auctions (such as fiber to the premises technology)?
(2) The matching funds requirement - Much like the NTIA BTOP Program under the 2009 ARRA, several BIL broadband programs provide that unless a waiver is obtained, a grant or subgrant recipient must contribute its own funding from a non-federal source to “match” funding provided by the BIL program. Under what circumstances should NTIA agree to waive a matching funds requirement for broadband infrastructure funding and what should be the criteria for assessing whether a waiver is appropriate?
(3) How should FCC broadband mapping reflect unbuilt, pending buildout commitments? - How should prior buildout commitments — including those of winning bidders under the Connect American Fund Phase II or Rural Digital Opportunity Fund reverse auctions — that are not reflected in the to-be-released FCC broadband mapping be treated? Should buildout commitments under federal reverse auctions that have not been completed be considered areas that are “served” and ineligible for BIL funding, tentatively served, or something else to reflect the risk of uncompleted projects? How will unserved locations that are the subject of a defaulted prior buildout commitment be protected?
(4) “Establishing Strong Partnerships Between State, Local and Tribal Governments” - Most Tribes are unaccustomed to, or uncomfortable with, working with states for infrastructure deployment, or subjecting themselves to state jurisdiction or authority. When formulating state broadband plans or the allocation of funding to individual states, what state agencies or stakeholder groups should be considered in the development of those plans? How can NTIA ensure that states “consult with Tribal governments about how best to meet Tribal members’ needs” when providing broadband funding to unserved locations on Tribal lands within state boundaries?
(5) “Buy American” requirements - The BIL has certain "Buy American" provisions to promote employment of American workers and minorities. How will workforce and supply chain constraints created by the COVID-19 pandemic affect implementation of the “Buy American” requirements of the BIL?