Department of Commerce Seeks Public Comment on a Range of Broadband Infrastructure Issues Arising from the 2021 Infrastructure Investment and Jobs Act

Faegre Drinker Biddle & Reath LLP

Faegre Drinker Biddle & Reath LLP

On the eve of the U.S. Senate’s confirmation of Alan Davidson as the new Administrator of the National Telecommunications and Information Administration (NTIA), NTIA published a request for public comments on January 10, 2022, on a range of broadband infrastructure issues, paving the way for Davidson’s reported top priority in his term. The request is the first of a series, which together are to establish three new NTIA programs under the appropriations from the November 2021 Infrastructure Investment and Jobs Act: the Broadband Equity, Access, and Deployment (BEAD) Program, the “Middle Mile Infrastructure” Program, and the Digital Equity Inclusion Program.

The Infrastructure Investment and Jobs Act contained a number of infrastructure spending provisions designed to address continuing “digital divide” – broadband availability gaps in rural and high-cost areas. It tasks the NTIA within the Department of Commerce with administering approximately $48 billion to fund grants to individual states and territories, using the criteria set forth in the law, which in turn will provide funding for sub-grantee broadband builds and operations. Among the three programs under this congressional mandate, NTIA has until mid-May 2022 to establish program rules for the BEAD Program using approximately $42 billion of the appropriated funds.

According to the NTIA, the first funding priority of the BEAD Program is states’ proposals that fund communities that are deemed to be “unserved” (with connection speed below 25/3 Mbps), followed by proposals to fund communities that are “underserved” (with connection speed below 100/20 Mbps), so those communities can obtain adequate high-speed broadband Internet access service alternatives. The BEAD Program funds also target critical expansion of broadband in rural areas and in states with lower-than-average broadband access and deployment. Once awarded funding, states are able to call on NTIA for technical and other assistance to facilitate their development of grant applications and to formulate their plans and procedures for funneling funds to chosen subgrantees. Particular emphasis is given to how best to ensure that grants are made to projects that are sustainable and scalable.

Given the tight timeframe for NTIA to stand up its broadband funding framework, this first request focused on what should and should not be funded and asked about procedures, priorities and administrative aspects of the BEAD Program in particular and on “any matter” relating to the NTIA’s implementation of the Infrastructure Investment and Jobs Act. The Request for Comment consists of 36 broad questions that span issues of how to determine what areas are underserved and unserved by broadband today, and how different factors relating to eligibility should be formulated and applied to supply chain and “Buy American” issues. NTIA expects to publish more requests for public comments specific to the other two programs later.

Comments to this request are due at NTIA by the end of the day on Friday, February 4, 2022. We will be following NTIA’s implementation of its broadband grants and can consult on the many aspects of this process.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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