Welcome to the third installment of our multi-part series of Client Alerts that focus on discrete sections of the Infrastructure, Investment & Jobs Act of 2021 (IIJA) that became law on November 15, 2021. Today’s topic is broadband: how Congress sliced and diced a $65 appropriation for various programs aimed at increasing the deployment and availability of high-speed telecommunications to unserved and underserved areas of the United States.

Overview

The IIJA adds to the $5 Billion that Congress allocated to broadband causes in the 2021 Consolidated Appropriations Act that became law on December 27, 2020.  The biggest chunk of that funding – $3.2 Billion – went to establishing the Emergency Broadband Benefit Program (EBBP), which the Federal Communications Commission (FCC) has administered since May 2021. Whereas the IIJA will pay for lasting deployment of transmission facilities, the EBBP was a stopgap measure to keep families connected during the financial upheaval of the COVID-19 pandemic. It will be replaced by a larger, more routinized IIJA plan called the Affordable Connectivity Program that we summarize below.

In less than eleven months, Congress has devoted $70 Billion to broadband. The hope is that the U.S. finally will close the “broadband divide” and the “homework gap” with a durable, robust, and efficient nationwide network supporting affordable Internet and data services for more Americans than ever before.

Who to Watch

At the federal level, the broadband related programs are administered by both the Federal Communications Commission (FCC) and the National Telecommunications and Information Administration (NTIA), an office in the Department of Commerce. In addition, every U.S. State and Territory, along with Tribal entities, will have the opportunity to obtain and parse out various block grants. businesses and organizations interested in participating in the broadband expansion will want to monitor state activity where much of the decisions on how the state allocated funds will be spent will be made. 

When

As detailed below, a few of the programs funded under the IIJA were initiated under the 2021 Consolidated Appropriations Act or earlier, and therefore are already in flight.  The FCC activity and state planning activity to deploy these funds is ongoing, and is expected to intensify throughout 2022, in particular within the first half of the year. 

The Affordable Connectivity Program

The IIJA creates a $14.2 Billion Affordable Connectivity Program (ACP) to assist consumers with paying for broadband service that will enhance and replace the Emergency Broadband Benefit Program (EBBP) established in the Consolidated Appropriations Act. This program is not targeted to States or carriers, but rather directly to consumers. The FCC has administered the EBPP since May 2021 and already has commenced a notice-and-comment period on proposed rules for determining which telecom carriers can participate and which U.S. households are eligible for funds. But whereas the previous statute set a standard EBBP funding amount of $50 per month, the IIJA reduced funding to $30 per month.

The Broadband Equity, Access, and Deployment Program

Title I of the IIJA creates the Broadband Equity, Access, and Deployment Program, appropriating $42.45 Billion for broadband deployment, mapping, and adoption throughout the U.S. and its Territories. Funds will go to “unserved locations” in which residents do not have access to broadband service of at least 25 Megabits per second (Mbps) for downloads and 3 Mbps for uploads (usually expressed as 25/3 Mbps).  Funds will then go to “underserved locations” that lack access to broadband of 100 Mbps down and 20 Mbps up (100/20 Mbps). These areas are, in this order of importance, the targets for IIJA funds. Funding for these areas will go to “reliable broadband service,” which encompasses performance criteria that will be determined by the FCC in consultation with NTIA. The program will be administered by NTIA.

Initial grants to Puerto Rico, DC, and each State will be $100 Million. The U.S. Virgin Islands, Guam, American Samoa, and the Northern Mariana Islands will split an initial grant of $100 Million. Each recipient must submit a five-year deployment plan to NTIA, with the remainder of the $42.45 Billion to be distributed to remaining unserved locations, and then underserved locations, that will be identified according to broadband maps that the FCC will publish in 2022. Grant recipients will then award subgrants to the entities that will actually build, map, and provide broadband service in their State or Territory.

Funds may be used for data collection, broadband planning and mapping, installing infrastructure, supplying reduced-cost service to multi-family dwellings (such as apartment buildings), and starting broadband adoption initiatives. Funding will be stripped from a service provider that fails to perform, fails to comply with applicable law, lacks the requisite technical capability, or fails to act in an equitable and nondiscriminatory manner. A Notice of Funding Opportunity (NOFO) must issue within 180 days of enactment (May 14, 2022) to invite proposals and applications for these grants. NTIA may not use more than 2% of the appropriated funds for administrative purposes.

Digital Equity Act Programs

“Digital Equity” is defined as “condition in which individuals and communities have the information technology capacity that is needed for full participation in the society and economy of the United States.” The IIJA allocates $2.75 Billion for promoting digital inclusion and broadband adoption through block grants, divvied up among these sub-programs that NTIA will administer:

  • State Digital Equity Planning Grants $60 Million to U.S. States and Territories for developing Digital Equity Plans. Applications for funding must be submitted within 60 days of the NOFO. Grants must be expended within one year of the date of award. Each grantee must publish its proposed Plan for notice and comment.
  • State Digital Equity Capacity Grants $1.44 Billion for annual grants over five years to U.S. States and Territories to implement their Digital Equity Plans in order to “to promote the achievement of digital equity, support digital inclusion activities, and build capacity for efforts by States relating to the adoption of broadband by residents of those States.”
  • Digital Equity Competitive Grants $1.25 Billion for annual grants over five years to Tribal governments, non-profit entities, educational agencies, and community anchor institutions to be used for constructing computer centers, purchasing hardware and software, providing computer training, and facilitating broadband adoption. These grants will be awarded at the discretion of NTIA. They will not be awarded to an entity that already has received a Digital Equity Capacity Grant.

The latter two programs permit NTIA to award grants not only to States and Territories, but also to Tribal entities, non-profit organizations other than schools, community anchor institutions, workforce development programs, and any partnership created by these entities. “Anchor institutions” is defined quite broadly as schools, libraries, healthcare providers, institutions of higher learning, and “other community support organizations.” The amount of the grants will be calculated according to a weighted formula based on State population, the proportion of persons in the State who are aged, low-income, veterans, or under a disability, and the relative level of broadband availability (50%/25%/25%).

The Tribal Broadband Connectivity Program

The TBCP is another instance of the IIJA ensuring the continuation of a fund created by the Consolidated Appropriations Act. Congress established and funded the TBCP – allocating $1 Billion in order to facilitate “broadband service on Tribal land” and “remote learning, telework, or telehealth resources during the COVID-19 pandemic.” The IIJA allocates another $2 Billion to this program, which is run by NTIA.

The Enabling Middle Mile Broadband Infrastructure Program

Congress allocated $1 Billion in the IIJA to provide grants to public and private entities, from States and Tribal governments to tech companies and telecommunications carriers, for the construction, improvement, or purchase of “middle-mile” infrastructure. “Middle-mile” is defined as broadband facilities that do not connect directly to a consumer and includes both wireline and wireless technologies. Projects that use existing rights-of-way, that will serve anchor institutions, or that will ensure network resiliency and redundancy will receive priority. Projects must be completed within five years of the grant funds being made available, though the statute does allow NTIA to authorize one-year extensions if work is already underway or “extenuating circumstances” are shown.

To learn more about the issues raised by this client bulletin, please contact Stephanie Joyce at stephanie.@joyce@potomaclaw.com or (202) 838-3173. 

Note: This publication is distributed with the understanding that the author, publisher and distributor of this publication and/or any linked publication are not rendering legal, accounting, or other professional advice or opinions on specific facts or matters and, accordingly, assume no liability whatsoever in connection with its use. Pursuant to applicable rules of professional conduct, portions of this publication may constitute Attorney Advertising.

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