Many Seek to Shape NTIA Infrastructure Rules

State and local governments sought close coordination as billions of broadband dollars come from the federal infrastructure law, in comments we received. Comments were due Friday on NTIA’s request for comments on implementing broadband programs in the Infrastructure Investment and Jobs Act (IIJA). Industry groups sought NTIA assurance the broadband equity, access and deployment (BEAD) and middle mile programs would be technologically neutral. Advocacy groups wanted maximum stakeholder participation and a focus on equitable deployment.

NTIA received more than 750 comments, though it didn’t immediately make comments public. Some may have been express comments, industry experts told us. A spokesperson told us the comments are being reviewed for “duplicates or obvious obscenities” and should be posted either Tuesday or Wednesday.

To most efficiently target funds and limit waste, fraud and abuse, NTIA rules "should encourage states to at least coordinate with the current [state] telecommunications regulators," NARUC commented. To prevent overlapping subsidies, "encourage the FCC to engage all state and federal sources to provide an overlay to the US broadband map with as accurate and up-to-date information as possible," including "detailed information on the amounts provided or committed by all federal and state sources.”

While not required, NTIA could encourage states to tap their commissions’ existing eligible telecom carrier designation processes to prequalify carriers, NARUC said. Tell states to consider conditioning grants on recipients offering state in addition to federal low income subsidies, it said.

The program should support states' work to disburse funds "in the most cost-effective manner, as quickly as possible," and with enough federal resources for planning, outreach and data management to guide large capital projects, said the California Public Utilities Commission. Make funding available for state implementation of coming FCC broadband maps, the CPUC said. NTIA rules should recognize local factors that affect infrastructure costs, such as topography and permitting costs, it said. The CPUC said allotting 10% of infrastructure funds for high-cost places “is likely to be insufficient to reach all areas that are both unserved and above the national average for deployment cost.” Consider resiliency needs in areas threatened by wildfire and other natural disasters, it added.

The National Governors Association filed with NTIA a letter it sent Dec. 17 to OMB. NGA Executive Committee's chairman, Arkansas Gov. Asa Hutchinson (R), and co-chairman, New Jersey Gov. Phil Murphy (D), sought flexibility for states and territories to use the IIJA money.

Sen. Steve Daines of Montana and 18 other Republicans urged NTIA Friday to “outline rules” for the IIJA money “that specifically prohibit overbuilding and “that set clear criteria to ensure projects targeted at unserved areas are actually prioritized.” The “regulations and methodology for the distribution of these funds must prioritize projects that are connecting customers and communities to broadband for the first time and avoid projects in areas where reliable broadband is already being provided or where there is an enforceable commitment to build high-speed broadband using federal or state funds,” the Republican senators wrote NTIA Administrator Alan Davidson. “Further, you must work in concert with other broadband programs to avoid duplication of state or federal government efforts and your department should ensure that all technological options are on the table to bring broadband service to unserved areas.”

Senate Commerce Committee ranking member Roger Wicker, R-Miss., urged White House Infrastructure Coordinator Mitch Landrieu Monday to “prioritize working closely with states and localities on best practices to streamline the processes for broadband network buildout” as the administration prepares to distribute the BEAD money. “A streamlined permitting and approval process would certainly expedite deployment of broadband. Having best practices in place before these funds are distributed would allow states and localities to focus their limited resources on cases where attention is most needed,” Wicker wrote Landrieu. “In addition, reducing overall hurdles to deployment would ultimately speed the process of connecting Americans, who cannot afford to wait years for better quality broadband.” Providing “states and localities with technical assistance, promoting the use of model codes … and prioritizing funding for projects that adhere to productive permitting processes are all ways to encourage the most efficient use of taxpayer dollars,” he said.

Localities Seek Engagement

Ensure that states engage local governments, commented localities. Enforce “Congress’s directive that eligible entities coordinate with local governments and subgrantees respect all applicable local laws and regulations,” said NATOA. “Include clear consequences.”

Don't let states restrict local right-of-way authority or ability to provide municipal networks, NATOA warned: Clarify that IIJA imposes a condition that states may not enforce any law that restricts muni broadband networks. If states refuse, withhold all or part of the state's allocation so localities can directly apply for funds, it said.

Consider affordability rather than only internet speeds when determining unserved and underserved areas, NATOA said. Establish "additional uses directed toward communities of color and lower-income or rural areas where the digital divide is evident even though they are not in" unserved or underserved locations.

Recognize both rural and urban areas have unserved and underserved locations, said the U.S. Conference of Mayors with local governments including those of Boston, Chicago and Washington, D.C. Use affordability as a metric to identify those areas, and require state plans to support historically disadvantaged communities, they said. If NTIA or any state defines unserved as only places lacking 25/3 Mbps speeds, “at least five of the permitted uses would be rendered meaningless,” the mayors said: Also, mandate municipal consultation at every phase and don't undercut state and local authority or property rights.

Develop an outreach plan that "invites representatives from some of the most disconnected, economically depressed, and hard-to-reach areas" to participate, Next Century Cities commented.

Industry Seeks Tech Neutrality, Transparency

“Promote better accountability on the parts of applicants” by publishing “objective standards” for vetting applicants, said NTCA. Providers should be able to “stand on equal footing,” it said, and NTIA should “[give] proper credit to proven track records of performance.” The group recommended a waiver process of matching fund requirements for applications to serve 100% unserved high-cost areas.

NTIA should avoid “unnecessary technical requirements” that “disfavor effective solutions such as fixed wireless broadband,” said CTIA, urging technology neutrality. Participation in the FCC’s affordable connectivity program should satisfy the obligation to provide a low-cost option, the wireless industry association said.

Ensure states follow a competitive bidding process that's publicly available, said Incompas. The group raised concerns about prioritizing networks owned or operated by local governments, nonprofit organizations and co-ops: “Recipients should be judged on their ability to meet the requirements of the grant and their proposals.”

Prioritizing entities "merely on their organizational structure should be rejected," said USTelecom. BEAD shouldn't be "operated like a venture capital fund," it said, and NTIA "must put guardrails in place to ensure that subgrantees have the financial wherewithal to deploy, maintain, and operate funded networks." NTIA should "incorporate existing federal government program requirements" in the program and require consistency across all states, USTelecom said.

Give smaller and fixed wireless providers “fair and equal access” to funding, said the Wireless ISP Association, noting a competitive application process is “best implemented through a request for proposals.” Exclude areas where an FCC Rural Digital Opportunity Fund Phase I auction applicant’s long-form application may still be pending from BEAD funding, WISPA said, and middle-mile grants should be prioritized for projects that will “provide backhaul and point-to-point connectivity to unserved areas.”

Establish "uniform qualifying location, application, competitive bidding, evaluation, and accountability mechanisms" when evaluating applications, said ACA Connects. States should be required to distribute funds to "all" unserved locations before moving on to underserved areas. Use a "single round, sealed bid process with quantitative metrics" to evaluate applicants, ACA said, citing the FCC's Uniendo a Puerto Rico Fund and Connect USVI Fund.

Don’t authorize the use of BEAD funding to expand the definition of areas served beyond the definitions in IIJA and the Broadband Data Act, said Smith Bagley. Ensure that states don’t add additional grant qualifications or performance requirements, it said. Smith Bagley backed rules that “encourage the expansion of fixed and mobile 5G availability.”

Fund areas with “the most pressing need for quality service” and avoid overbuilding, NTCA said. Take “measured steps” to coordinate with other agencies on existing broadband programs, it said, noting BEAD program grants should complement the FCC’s high-cost USF programs. Establish a “clear and heavily weighted priority” through BEAD for networks that will deliver service that “reliably meets or exceeds symmetrical upload and download speeds of 100 Mbps,” NTCA said.

Encourage “increasing broadband providers’ access to public rights-of-way, accelerating approval of permits” and charging fees based on “actual, objectively reasonable costs” for the middle-mile infrastructure program, Incompas said, suggesting the fees be made public. The group said fiber investments “should be a critical component” in meeting the “increasing demand on our nation’s networks.”

Rely on “existing state grant and funding processes to the greatest extent possible,” said NCTA: Subgrantees should be allowed to use BEAD funds to “deploy new facilities underground in areas where it is feasible and appropriate.” Consider “including a robust challenge process” to prevent waste, fraud, and abuse, the group said. Middle-mile funding should be limited to deployment in “lower-density areas, based on the proportion of unserved households, where network development is typically more costly and less economic than in other areas,” NCTA said

Industry worried about IIJA’s “buy American” provision. The Telecom Industry Association had “serious concerns” that it would “make it difficult, if not impossible” to reach 100% connectivity to high-speed broadband “in the timeline envisioned by Congress,” recommending a waiver process. Incompas agreed it “may be very hard or impossible” for its members to meet this requirement. WISPA suggested entertaining waivers based on specific supply chain constraints if NTIA doesn’t adopt a blanket waiver. Smith Bagley agreed. Given “supply chain realities,” don’t let “buy America” impede deployment using BEAD funding, CTIA said.

Transparency and public accountability “should be the cornerstone” of implementing the new programs, said the U.S. Chamber of Commerce. Collect data on the length of the permitting process, regulatory burdens, and the long-term viability of subgrantees’ proposed broadband projects, it said, noting this information should be made public and NTIA should give states technical support on “how to best leverage IIJA broadband funding with existing broadband programs.”

Digital Equity, Prioritizing Unserved Areas

Prioritize funding for projects that would “have the greatest impact in addressing the inequities of the digital divide” by serving “multicultural, low-wealth, rural, and urban communities,” said the Multicultural Media, Telecom and Internet Council, ALLvanza, LGBT Tech and TechLatino. Require states to include plans in their BEAD applications to “mitigate the likelihood that pole attachment disputes will arise,” the groups said, saying states should allocate BEAD funding to cover the cost of pole replacements.

Coordinate with other agencies to “align programmatic requirements and practices whenever possible” and ensure tribal entities are “engaged during the earliest planning stages,” said Public Knowledge and The Utility Reform Network. Issue guidance to states to “substantially involve local stakeholders” in its broadband plans, said New America’s Open Technology Institute, saying BEAD recipients should be required to participate in ACP.

The BEAD program’s “top priority” should be deployment in unserved areas, said the Free State Foundation. Targeted subsidies in rural and low-populated areas “present the most compelling case for focused government intervention,” FSF said: NTIA should be technologically neutral and not disadvantage non-fiber proposals.

Require states to build symmetrical, “future proof” speeds with scalable networks, PK and TURN said, and open access, municipal and co-op networks should be prioritized. The Benton Institute for Broadband & Society agreed and said NTIA should enable “municipal experimentation” with broadband deployment.

Encourage states to use funds for digital literacy efforts and a “device voucher program,” the groups said. NTIA “should not fear ‘overbuilding,’” OTI said, noting it’s a “misleading term often used by incumbent providers to describe competition.” Building competitive networks in “underbuilt” areas is “precisely what the market needs and what BEAD should support,” OTI said.