NTIA Seeks Comment on Infrastructure Investment and Jobs Act Broadband Programs

Please contact Carri Bennet at carri.bennet@wbd-us.com for information. 

The National Telecommunications and Information Administration (NTIA) has released a Request for Comment (RFC) seeking input on three broadband programs established through the Infrastructure Investment and Jobs Act, which NTIA refers to as the Bipartisan Infrastructure Law (BIL): the Broadband Equity, Access, and Deployment (BEAD) Program; the Digital Equity Planning Grant Program; and the Middle Mile Broadband Infrastructure Program.  Comments are due February 4, 2022 at 5 p.m. EST.

The RFC seeks comment on several BIL broadband grant programs to be administered by NTIA, including: the BEAD Program, the Digital Equity Planning Grant Program, and the Middle Mile Broadband Infrastructure Program.  NTIA intends to release a RFC on the two other digital equity programs at a future date: (1) the State Digital Equity Capacity Grant Program and (2) the Digital Equity Competitive Grant Program.  NTIA also plans to gather stakeholder input on questions related to the additional funding provided for the Tribal Broadband Connectivity Program, created under the Consolidated Appropriations Act, 2021, at a later date.

At the outset, NTIA “welcomes input on any matter that commenters believe is important” to its BIL implementation, and not just those raised in the specific questions.  NTIA also expresses particular interest in suggestions for how to effectively implement these new funding programs, based on commenters’ experiences with other federal or state funding programs.  Accordingly, there may be opportunities to influence these new broadband grant programs, for example, by urging NTIA to add to the range of supported services to cover precision agriculture across or emphasizing the role of wireless technologies in broadband deployment.

BIL Broadband Programs General Questions

With regard to the three programs at issue in this RFC, NTIA seeks comments on a full range of issues and invites stakeholders to offer suggestions on how to effectively implement these new funding programs.  NTIA generally seeks comment on how these programs will: (1) bring reliable, affordable, high-speed broadband to all Americans; (2) support states, territories, and sub-grantees in achieving their goals; and (3) incorporate American manufacturing and labor resources.

Bringing Reliable, Affordable, High-Speed Broadband to All Americans
1.    What are the most important steps NTIA can take to meet BIL broadband goals? 
2.    How best can NTIA ensure that all voices and perspectives are heard? 
3.    What types of data should NTIA require funding recipients to maintain and report? 
4.    How should NTIA and grant recipients verify that funding is used efficiently?

Supporting States, Territories, and Sub-Grantees to Achieve the Goal 
5.    What technical assistance should NTIA provide to states, localities, prospective sub-grantees, and other interested parties? 
6.    How should NTIA assess an Eligible Entity’s competitive subgrant award process? 
7.    How can NTIA ensure that a variety of providers, including small and medium providers, cooperatives, non-profits, municipalities, electric utilities, and larger for-profit companies participate in the programs? 
8.    How can NTIA address varying economic and financial circumstances, unique geographic conditions, topologies, or other challenges among different states? 
9.    Under what circumstances, if any, should NTIA waive matching fund requirements?

Ensuring the Future of America Is Made in America by All of America’s Workers 
10.    What steps, if any, should NTIA take to mitigate the impact of workforce or supply-chain limitations? 
11.    What can NTIA do to help ensure that funding is deployed in a way that maximizes the creation of good paying jobs, including for women and people of color? 
12.    What steps, if any, should NTIA take to ensure maximum use of American-made network components and create high quality jobs for all Americans? 

Broadband Equity, Access, and Deployment Program

Summary

The BEAD Program will provide a total of $42.45 billion to Eligible Entities (agencies or other bodies chosen in each state and U.S. territory) to distribute to subgrantees for broadband expansion, with a priority for unserved locations,¹ to rural areas.  The BEAD Program will allocate a minimum of $100 million to each state, including the District of Columbia and Puerto Rico, and $25 million to each of the four other U.S. territories,² and 10 percent of the total allocation of funds will be distributed based on unserved locations in high-cost areas.³  The bulk of the funding will be allocated to the Eligible Entities on the basis of their share of unserved locations.⁴

Funds will be distributed in three phases.  Eligible entities will receive up to $5 million each for planning efforts.  Once the broadband DATA maps⁵ have been made public, funding will be allocated among the states and they will submit initial broadband plans to NTIA describing their objectives and strategic plans, and identifying unserved locations.  Upon approval, Eligible Entities will receive 20% of the allocated funding.  They will then submit final plans to NTIA with detailed plans for allocation of funding, implementation, oversight, and accountability.  When these final plans are approved, Eligible Entities will receive the rest of the allocated funds.  NTIA is required to issue a Notice of Funding Opportunity (NOFO) on the BEAD Program no later than May 16, 2022.

Request for Comment

For the BEAD Program, NTIA asks a series of questions to lead stakeholders in formulating their comments.  Specifically, it asks how NTIA should (1) ensure broadband networks that sustain and scale; (2) use BEAD funds to achieve universal, reliable, affordable, high-speed broadband; (3) establish strong partnerships between state, local, and tribal governments; and (4) structure the low-cost broadband service option and address affordability.

Ensuring Publicly Funded Broadband Networks That Sustain and Scale 
13.    What guidance or requirements, if any, should NTIA consider with respect to network reliability and availability, cybersecurity, resiliency, latency, or other service quality features and metrics? 
14.    What criteria should NTIA require states to consider to ensure that projects will provide robust and sustainable service at affordable prices over the long term?
15.    What sort of speeds, throughput, latencies, or other metrics will be required to fully connect all Americans to meaningful use over the next five, ten, and twenty years? 

Allocation and Use of BEAD Funds to Achieve Universal, Reliable, Affordable, High-Speed Broadband 
16.    How should NTIA treat prior buildout commitments that are not reflected in the updated FCC maps because the projects themselves are not yet complete? 
17.    How should NTIA determine what constitutes a “high-cost area” for the 10% allocation? 
18.    What additional uses, beyond those enumerated in section 60102(f) should NTIA deem eligible for BEAD funding? 

Establishing Strong Partnerships Between State, Local, and Tribal Governments 
19.    What requirements should NTIA establish to ensure that local perspectives are critical factors in the design of state plans?
20.    When formulating state broadband plans, what state agencies or stakeholder groups should be considered in the development of those plans? 
21.    How can NTIA ensure that states/territories consult with Tribal governments? 

Low-Cost Broadband Service Option and Other Ways to Address Affordability 
22.    What factors should qualify an individual or household for a low-cost broadband option? 
23.    What factors should NTIA consider in guiding the states in design of low-cost broadband options? 
24.    What factors should be considered in the deployment of BEAD funds to help drive affordability beyond the low-cost option?

Digital Equity Planning Grant Program

Summary

The Digital Equity Planning Grant Program is a $60 million formula grant program for states and territories to develop digital equity plans.  The Governor of each state, including the District of Columbia and Puerto Rico, may designate a single entity, such as an agency, tribe, non-profit, or other community anchor institution, which would draft a plan for the state.  

The State Digital Equity Plan must outline barriers currently faced in that state, measurable objectives for proposed initiatives, information on the current availability and affordability of broadband services and consumer devices, and expected impact on health, education, and social outcomes.  Once these plans are finalized, NTIA will make planning grants⁶ available under this program to carry out the creation of the State Digital Equity Plans via a direct application process.  Complete plans will delineate proposals for coordinating with local anchor institutions to serve diverse populations.  Plans must be made public for a 30-day comment period and reviewed and revised as necessary before submission to NTIA for review. 

Request for Comment

NTIA seeks input from stakeholders on various topics related to this grant program, including: (1) best practices NTIA should mandate of states in their creation of State Digital Equity Plans; and (2) what steps it should take to ensure that states consult with historically marginalized and disadvantaged groups as well as local governments and other political subdivisions in developing and implementing their State Digital Equity Plans.

State Digital Equity Plans 
25.    What are the most effective digital equity and adoption interventions states should include in their digital equity plans and what evidence of outcomes exists for those solutions?
26.    What types of assistance should NTIA provide so State Digital Equity Plans fully address gaps in broadband adoption, promote digital skills, advance equitable access to education, healthcare and government services, and build information technology capacity to enable full participation in the economy for covered populations? 
27.    How should NTIA ensure that State Digital Equity Plans and the BEAD program are complementary, sequenced and integrated to address broadband access and adoption? 
28.    How should NTIA ensure that State Digital Equity Plans impact and interact with the State’s goals, plans and outcomes related to: (i) economic and workforce development; (ii) education; (iii) health; (iv) civic and social engagement; (v) climate and critical infrastructure resiliency; and (vi) delivery of other essential services? 
29.    What best practices, if any, should states follow in developing measurable objectives for availability, affordability, accessibility, digital literacy, privacy, and cybersecurity? 

Digital Equity Coordination Requirements 
30.    What steps should NTIA take to ensure that states consult historically marginalized and disadvantaged groups, when planning, developing, and implementing their State Digital Equity Plans? 
31.    What steps should states take to coordinate with local governments and other political subdivisions in developing State Digital Equity Plans. to fulfill this mandate? 

Middle Mile Broadband Infrastructure Program

Summary

The BIL creates a $1 billion grant program, the Middle Mile Broadband Infrastructure Program, for technology-neutral competitive grants to eligible entities⁷ for the construction, improvement, or acquisition of middle mile infrastructure.⁸  This grant program is authorized for five years, from FY 2022 through FY 2026.  In evaluating applications for grant funds, NTIA must give priority to applications that satisfy at least two of the following conditions: (1) applicant adopts fiscally sustainable middle mile strategies; (2) applicant commits to offering non-discriminatory interconnection to terrestrial and wireless last mile broadband providers and any other party making a bona fide request; (3) applicant identifies specific terrestrial and wireless last mile broadband providers that have expressed written interest in interconnecting with middle mile infrastructure and have demonstrated sustainable business plans; (4) applicant has identified supplemental investments; and (5) applicant has demonstrated that middle mile infrastructure will benefit U.S. national security interests.

To be eligible, an applicant must prioritize: (1) connecting middle mile infrastructure to last mile networks that provide broadband service to households in unserved areas; (2) connecting non-contiguous trust lands; or (3) offering of wholesale broadband service at reasonable rates.  Once grant funds are made available, eligible entities must complete the buildout of the middle mile infrastructure within five years of funding becoming available.  This deadline may be extended by no more than one year under certain circumstances.

In connecting anchor institutions, eligible entities must buildout middle mile infrastructure that is capable of providing gigabit broadband speeds.  Additionally, middle mile grant funds awarded may not exceed 70 percent of the total project costs.  NTIA will issue a NOFO by May 16, 2022 and awards will be made no later than 270 days after the NOFO is issued.

Request for Comment

NTIA requests comments from stakeholders on implementation of the middle-mile program so as to reduce the cost of connecting unserved and underserved areas to the internet backbone.  While NTIA has experience with middle-mile funding from the Broadband Technology Opportunities Program, many years have passed and staff has changed so it is unclear to what extent that program will provide a baseline for this BIL program.

32.    How should the Assistant Secretary ensure that middle-mile investments are appropriately targeted to areas where middle-mile service is non-existent or relatively expensive? 
33.    How should NTIA implement the BIL requirements, listed above, in prioritizing middle-mile grant applications? 
34.    What requirements, if any, should NTIA impose on federally funded middle-mile projects with respect to the placement of splice points and access to those splice points? 
35.    How can the Middle Mile Broadband Infrastructure program leverage existing middle-mile facilities, access to rights of way, poles, conduit, and other infrastructure? 
36.    What scalability requirements, if any, should NTIA place on middle-mile grant recipients?

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Comments are due on February 4, 2022 at 5 p.m. EST.  If you have any questions or need assistance in filing comments, please contact Carri Bennet at carri.bennet@wbd-us.com.

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¹ An unserved location or area is an area where there is either no access to broadband service or access to broadband speeds less than 25/3 Mbps.
² These territories are the U.S. Virgin Islands, Guam, American Samoa, and the Commonwealth of the Northern Mariana Islands.
³ A high-cost area is defined in part as a location where available broadband speeds are less than 25/3 Mbps and the cost of building broadband service is greater than the cost of building out broadband service on average in unserved areas, as determined by the Assistant Secretary and the FCC.  The following factors are also incorporated in such determination: (1) remoteness of location; (2) population density; (3) topography of area; (4) poverty rate; and (5) any other factors deemed relevant by the Assistant Secretary, in consultation with the FCC.
⁴ NTIA may also use up to two percent of the total allocation for administrative purposes.  
⁵ These maps are currently being developed under the Broadband Data Collection Program to provide more updated and detailed information on the availability of fixed and mobile services.  The broadband DATA maps are expected to be released sometime during 2022.
⁶ These funds will only be available for one year after grant funds are first received by the State.
⁷ Eligible entities include states, political divisions of a state or tribal government, technology companies, electric utilities, utility cooperatives, public utility districts, telecommunications companies or cooperatives, nonprofit foundations or corporations, regional planning counsels, Native entities, and economic development authorities.
⁸ Middle mile infrastructure is any broadband infrastructure that does not connect directly to an end-user location, including an anchor institution.  Some examples are leased dark fiber, interoffice transport, backhaul, and carrier-neutral internet exchange facilities.