Senators Hear Support for Long-Term Broadband Funding, Increased Oversight

Senate Communications Subcommittee members from both parties targeted FCC and NTIA implementation of connectivity programs created in the Infrastructure Investment and Jobs Act and COVID-19 aid measures Tuesday, as expected (see 2212120064), including concerns about deficient data the commission used to develop its new broadband maps. Lawmakers also touched on other telecom policymaking matters they hope Capitol Hill can address during the lame-duck session or in the next Congress. Senate Commerce Committee leaders saw a potential one-week extension of their talks on one lame-duck priority, a compromise spectrum legislative package (see 2212070068), appear via a proposed continuing resolution to fund the federal government past Friday.

The CR, filed as an amendment to shell bill HR-1437, would extend the FCC’s spectrum auction authority through Dec. 23. The authority was to expire Friday along with the existing appropriations CR. “Though we’re working tirelessly” to reach a deal on an FY 2023 appropriations omnibus package, “we need a bit more time beyond this week,” Senate Majority Leader Chuck Schumer, D-N.Y., said during a Tuesday news conference. “The Senate should be prepared to pass” the new CR “this week and give negotiators more time to finish up before the holidays.”

Senate Commerce Chair Maria Cantwell, D-Wash., described the one-week reauthorization as “key” to keeping open her talks with panel ranking member Roger Wicker, R-Miss, aimed at reaching a deal that would handle other spectrum policy matters and a longer-term renewal (see 2211300074). Those talks are “still going” and a deal is “possible” by Dec. 23, though “I don’t know what that looks like yet,” Cantwell said in a brief interview.

Senate Communications Chairman Ben Ray Lujan, D-N.M., called during the subpanel hearing for Congress to “find permanent funding” for many broadband programs created in IIJA and other recent measures since they come with extensive but finite appropriations. He cited his Digital Equity Foundation Act (HR-8858/S-4865), which would create a nonprofit foundation to disburse funding for digital equity, inclusion and literacy projects and support related activities (see 2209160047).

Witnesses raised concerns about the long-term financial health of both USF and the FCC-administered affordable connectivity program. National Digital Inclusion Alliance Executive Director Angela Siefer sought “sustained funding" for ACP, saying the IIJA’s initial $14.2 billion appropriation won’t be enough to keep it running for long. “Unless Congress takes action, this vital program will go away in just a few short years,” she said: ISPs’ “low-cost programs are helpful, but they all have participation limitations.”

USTelecom CEO Jonathan Spalter believes USF is “on sound legal footing” as the FCC defends the program in the 5th U.S. Circuit Court of Appeals against Consumers’ Research’s challenge of the commission’s method for funding it under the nondelegation doctrine (see 2212060070), but he warned a ruling that the program is unconstitutional “would be nothing less than a force majeure that would impact our nation's commitment to the future of universal connectivity.” Spalter urged Congress to ensure USF’s long-term sustainability, saying “we have to expand actually the base of contributors that are providing support for” the program “beyond the very small slice of a telephone” or VOIP providers that currently contribute.

Lujan later noted a need for legislation to halt “efforts to create loopholes” in implementation of those broadband programs, which are “going to create more problems” in the federal government’s attempt to ensure universal connectivity. “Some of the comments that have been filed” in the FCC’s Nov. 23 NPRM seeking input on revising ACP data collection rules and whether the FCC should seek more granulated data on enrollment and the digital divide (see 2211230074) suggest ISPs want to find ways of being “held harmless” for not choosing to build broadband that connects users “down a long road,” he told reporters.

Permitting, Oversight Woes

Senate Communications ranking member John Thune, R-S.D., said Tuesday he sent “requests to several federal agencies on the steps that they’ve taken to implement” the 2018 Making Opportunities for Broadband Investment and Limiting Excessive and Needless Obstacles to Wireless Act’s “broadband siting mandates.” With “billions of dollars set to be disbursed to deploy broadband services, it is imperative that federal agencies do not hinder the deployment of this infrastructure,” he said in letters to Defense Secretary Lloyd Austin, Transportation Secretary Pete Buttigieg, Interior Secretary Deb Haaland and Agriculture Secretary Lloyd Austin. Thune sought responses by Jan. 13.

The Mobile Now Act, enacted as part of an FY 2018 omnibus spending measure, “has been an effective tool in moving the federal government in the right direction” to end broadband permitting hurdles,” but “I continue to hear concerns about unnecessary delays and costs associated” with obtaining permits, Thune said: Federal agencies “processing permitting requests need to be held accountable if they're not meeting deadlines.”

There’s “bipartisan” interest in removing broadband permitting hurdles, Lujan later told reporters. “I’m certainly hopeful that a lot can be learned from projects in the past that were delayed if not outright canceled because they couldn’t get the necessary approvals. That’s something that needs to be fixed and it’s an issue that’s been raised for quite some time now.”

“There needs to be more coordinated and accountable efforts on the part of the various of the 13 various agencies that are involved in deploying broadband around our country,” Spalter said. NCTA CEO Michael Powell said permitting and pole access hurdles are "the principal and primary obstacle to utilizing the money effectively" for network deployment. He urged "much deeper coordination among federal agencies for federal lands, a harmonized set of access fees" and increasing agencies’ staffing. "We often call these agencies” and are “told ‘we don't have enough people to work on that,” he said: “That's just kind of unacceptable with the urgency of this program.”

Thune cited the start last week of his review of all federal broadband funding programs in a bid to hold executive branch agencies accountable for their disbursals (see 2212060067). “I'm afraid without stringent oversight, NTIA will make and has already made the same mistakes” in managing the $42.5 billion broadband equity access and deployment program as it made in past efforts like the Broadband Technology Opportunities Program, he said: “If there are changes that need to be made to the various programs Congress has established, we need to get to work to make sure they are as effective as possible and that they work as Congress intended.”

Mapping, Sohn

Lujan and other Senate Communications members noted deep concerns with the FCC’s new maps and the accompanying data challenge process. Lujan specifically asked if the FCC’s current Jan. 13 deadline for challenges is sufficient. Sen. Shelley Moore Capito, R-W.Va., likewise pressed to know when the maps will be “finalized” given their importance to IIJA disbursal. She said about 138,000 locations in West Virginia were “left out” of the current FCC maps.

That’s “absolutely not” enough time, said Connect New Mexico Council interim Chair Kimball Sekaquaptewa: “I know that people are hurting and basic human services are being compromised until we can get broadband deployed,” but “rushing into decision-making and creating funding allocations that might not be in the best interest of those same communities would be a miss, I think, for this generational opportunity we have with this funding.”

“I'm so severely disappointed by” the new maps, “which vastly overstate current coverage in rural Nevada,” said Sen. Jacky Rosen, D-Nev. Much of the IIJA funding is “directly tied to these maps, so we need to get this process right. That means ISPs must be forthcoming about where they actually serve. But it also means that the FCC challenge process must accept challenges based on actual engineering and the facts on the ground, not whether” a provider “can theoretically serve a particular community.”

Lujan connected long-term broadband policymaking needs to FCC nominee Gigi Sohn’s stalled confirmation process. He wants “a vote to take place” on Sohn before the end of this Congress given the commission’s current 2-2 split. He’s “hopeful” an “up-or-down vote” can happen soon. “Many of us have been asking for a vote to take place for a while,” Lujan said.

Siefer likewise urged Senate action on Sohn. “We sorely need a full FCC,” she said: “They have a big job” given “the new maps, the broadband consumer labels, ACP,” the emergency connectivity fund “and many other responsibilities. They cannot do this without” Sohn.