Leveraging the Infrastructure Investment and Jobs Act to Develop Broadband in Indian Country

Holland & Knight LLP

Highlights

  • The Infrastructure Investment and Jobs Act (IIJA) (Pub. L. 117-58) provides critical resources to increase access to broadband and build out critical broadband infrastructure in Indian Country. As the Biden Administration prepares to roll out IIJA funds, tribal governments should prepare to take advantage of such funds, including providing written comments that these funds support their broadband infrastructure projects and goals.
  • To ensure appropriate implementation, tribal governments should also address barriers for each funding opportunity. For example, ensuring a wide range of broadband infrastructure is funded (e.g. fiber as well as investments in community internet infrastructure), providing priority consideration for applications that build off of existing infrastructure or are in conjunction with another project (e.g. laying fiber while repairing roads), or supporting innovative solutions to provide services in remote parts of the country).
  • Tribal governments can leverage IIJA funds with funding from other federal programs (such as the American Rescue Plan's Fiscal Recovery Fund), freeing up resources for other critical infrastructure needs and government services.

The Infrastructure Investment and Jobs Act (IIJA) (Pub. L. 117-58) allocates significant resources to increase access to affordable internet and build out critical broadband infrastructure on Indian Reservations. Tribes should prepare to take advantage of these programs and provide written input to ensure IIJA funds are allocated effectively, efficiently and equitably. Most important, they should support the projects most needed in Indian Country.

Opportunities for Tribal Members

Affordable Connectivity Fund – $14.2 Billion for FY 2022-2026. The Federal Communication Commission's (FCC) Affordable Connectivity Fund (ACF) is a new long-term program that replaces the Emergency Broadband Benefit Program (EBB). Households enrolled in EBB as of Dec. 31, 2021, will continue to receive their current monthly benefit until March 1, 2022. However, households that qualified for EBB due to a substantial loss of income due to job loss or furlough since Feb. 29, 2020, or by meeting the eligibility criteria for a participating provider's COVID-19 program, will need to requalify for ACF. The maximum monthly benefit will change from $50 per month to $30 per month for households not located on qualifying tribal lands. The monthly benefit will remain at $75 for households on qualifying tribal lands.

Individual tribal members are eligible for ACF if they:

  • have an income that is at or below 200 percent of Federal Poverty Guidelines or participate in certain assistance programs, such as FDPIR, SNAP, Medicaid, Lifeline or WIC
  • are approved to receive benefits under the free and reduced-price school lunch program or the school breakfast program, including through the USDA Community Eligibility Provision in the 2019-2020, 2020-2021 or 2021-2022 school year
  • received a Federal Pell Grant during the current award year
  • experienced a substantial loss of income due to job loss or furlough since Feb. 29, 2020, and the household had a total income in 2020 at or below $99,000 for single filers and $198,000 for joint filers, or
  • meet the eligibility criteria for a participating provider's existing low-income or COVID-19 program

The FCC has already begun developing rules governing the program. Public comments were due on Dec. 28, 2021.

Opportunities for Tribal Governments and Tribal Telecom Entities

ReConnect Program – $2 Billion for FY 2022-2026. The U.S. Department of Agriculture's (USDA) ReConnect Program is an existing program that offers loans, grants and loan/grant combinations to help construct or improve facilities required to provide broadband access to rural areas. The program can also fund the acquisition or upgrade of existing systems not currently providing sufficient broadband access.

The Notice of Funding Opportunity (NOFO) for USDA's third round of funding for FY 2022 can be found on the USDA website. Applications must be received on or before Feb. 22, 2022, at 11:59 a.m. ET.

Distance Learning, Telemedicine and Broadband Program – $2 Billion to Remain Available Until Expended. The Rural Utility Service's (RUS) Distance Learning, Telemedicine and Broadband Program is an existing program that helps rural communities use the unique capabilities of telecommunications to connect to each other and the world, overcoming the effects of remoteness and low population density. IIJA provides that $74 million shall be for the cost of broadband loans, as authorized by Section 601 of the Rural Electrification Act. RUS has not yet published a NOFO for this funding opportunity.

Tribal Broadband Connectivity Program – $2 Billion for FY 2022-2026. The U.S. Department of Commerce, National Telecommunications and Information Administration's (NTIA) Tribal Broadband Connectivity Program (TBCP) mitigates the effects of the COVID-19 pandemic, which exacerbated the digital divide across Indian Country. NTIA is currently seeking input from Indian Country on three critical questions:

  • Should NTIA make available any of the additional TBCP funding appropriated by IIJA for the applications submitted in response to the June 2021 TBCP NOFO?
  • If so, what percentage of the additional funding should NTIA make available for this purpose?
  • If NTIA were to issue a second TBCP NOFO for the remaining funds appropriated by IIJA, when would be the most accommodating time for tribes to be able to submit applications?

Comments must be submitted to broadbandusa@ntia.gov, with the subject line "Tribal Broadband Grant Program IIJA," on or before Jan. 31, 2022, at 6 p.m. ET.

Enabling Middle Mile Broadband Infrastructure – $1 Billion for FY 2022-2026. IIJA establishes a new NTIA Middle Mile Broadband Grant Program to support the construction, improvement or acquisition of "middle mile" broadband infrastructure. "Middle mile" refers to the installation of a dedicated line that transmits a signal to and from an internet point of presence. Completion of middle mile routes is necessary to serving areas, reducing capital expenditures and lowering operating costs.

NTIA is seeking public input on:

  • How middle mile infrastructure is essential to American connectivity. Lack of affordable middle mile access can have a substantial impact on retail prices charged for broadband services. How should the Assistant Secretary of Commerce ensure that middle mile investments are appropriately targeted to areas where middle mile service is nonexistent or relatively expensive? To what extent should middle mile grants be targeted to areas in which middle mile facilities exist but cannot economically be utilized by providers that do not own them? Should NTIA target middle mile funds to areas where interconnection and backhaul costs are impacted by a lack of competition or other high-cost factors?
  • How the Bipartisan Infrastructure Law's provisions regarding the Middle Mile Broadband Infrastructure Grant Program set out a range of considerations governing NTIA's assessment of proposals seeking middle mile funding, including improving affordability, redundancy and resiliency in existing markets; leveraging existing rights of way, assets and infrastructure; and facilitating the development of carrier-neutral interconnection points. See BIL § 60401(e), (b)(2), (d)(2). How should NTIA implement these requirements, and others listed in the legislation, in prioritizing middle mile grant applications?
  • What requirements, if any, NTIA should impose on federally funded middle mile projects with respect to the placement of splice points and access to those splice points. Should NTIA impose other requirements regarding the location or locations at which a middle mile grantee must allow interconnection by other providers?
  • How the Middle Mile Broadband Infrastructure program can leverage existing middle mile facilities, access to rights of way, poles, conduit and other infrastructure and capabilities that are owned, operated or maintained by traditional and nontraditional providers (public- and investor-owned utilities, grid operators, co-ops, academic institutions, cloud service providers and others) to accelerate the deployment of affordable, accessible, high-speed broadband service to all Americans. What technical assistance or guidance should NTIA provide to encourage applications for this program? Are there examples of successful deployments and/or benefits provided by nontraditional providers to highlight?
  • How, as network demand grows, capacity needs in the middle mile and network core grow as well. What scalability requirements, if any, should NTIA place on middle mile grant recipients?

Comments must be submitted at www.Regulations.gov (NTIA–2021–0002) on or before Feb. 4, 2022, at 5 p.m. ET.

Digital Equity Act – $2.75 Billion for FY 2022-2026. With inclusion of the Digital Equity Act in IIJA, Congress established two NTIA-administered grant programs (formula- and competitive-based) to promote digital inclusion and equity for communities that lack the skills, technologies and support needed to take advantage of broadband connections. The goal of these programs is to promote the meaningful adoption and use of broadband services across targeted populations, including low-income households, aging populations, incarcerated individuals, veterans, individuals with disabilities, individuals with a language barrier, racial and ethnic minorities, and rural inhabitants. Of interest to Indian Country, there is an annual $125 million competitive grant program to support digital inclusion projects undertaken by individual groups, coalitions and/or communities of interest.

NTIA is largely seeking public input on state plans for the formula-funded program on which tribal governments are ineligible to receive funds. Comments must be submitted on at www.Regulations.gov (NTIA–2021–0002) on or before Feb. 4, 2022, at 5 p.m. ET.

Additional Opportunity to Comment on NTIA Grant Programs

NTIA is seeking public input on 36 questions related to programs funded through IIJA. One question specific to Indian Country is:

  • How can NTIA ensure that states/territories consult with tribal governments on how best to meet tribal members' needs when providing funding for broadband service to unserved and underserved locations on tribal lands within state boundaries?

Comments must be submitted on at www.Regulations.gov (NTIA–2021–0002) on or before Feb. 4, 2022, at 5 p.m. ET.

Considerations for Written Comments

While there are various opportunities to provide written input on the implementation of IIJA broadband programs, there are several key points that tribal leaders and telecom entities may want to consider when preparing their response. For example:

  • Do these funds support the broadband infrastructure that my tribal community needs? Do you need to lay fiber or utilize innovative technology such as satellite broadband to provide broadband to your community? Do these funding opportunities provide the flexibility to cover these expenses?
  • What barriers have prevented your tribe from accessing federal funding in the past? Are there lessons learned that can aid the Biden Administration in improving the delivery of these funds?
  • How can we ensure that FCC, USDA and NTIA programs are adequately serving Indian Country? While there are several real opportunities in IIJA to build out broadband, the lack of coordination between the FCC, USDA and NTIA could result in certain tribes or regions receiving more funding than others. How can we ensure that funds are distributed equitably across Indian Country?

Conclusion and Considerations

Tribal governments should consider funding opportunities under IIJA when evaluating broadband projects that could be funded with other federal resources, such as the American Rescue Plan's Fiscal Recovery Fund. Funding broadband infrastructure projects with IIJA funding could free up Fiscal Recovery Funds for other critical infrastructure projects, as well as tribal government services.

 

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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