Weighing in on the NTIA’s BEAD NOFO

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The Biden administration is expected to issue a notice soon that lays out the parameters of the more than $42.5 billion in broadband funding allocated by the Infrastructure, Investment and Jobs Act. 

The Notice of Funding Opportunity (NOFO) will invite states to submit letters of intent to apply for up to $5 million in planning grants.

The Commerce Department's National Telecommunications and Information Administration asked for public comments before embarking on this rule-making exercise. It received 561 of them. 

Commenters ranged from individuals concerned about state preemption laws that prevent local governments from entering the broadband market, to several coalitions of groups that have been historically marginalized. 

State broadband administrators who will be responsible for managing the funds weighed in, as did large telecommunications companies and associations representing regional providers. 

Many of the usual inside-the-Beltway groups also weighed in. 

The comments varied widely across the spectrum in terms of how much leeway the NTIA should provide states to make their own decisions. Some, like Chad Rupe, the former administrator for the United States Department of Agriculture's Rural Utilities Service and current broadband program manager for Montana, urged the NTIA to provide the states as much leeway as possible in terms of decision-making. 

Others, such as the NTCA, the Rural Broadband Association, urged the NTIA to impose strict accountability requirements for sub-grantees receiving funds, but allow each state to taylor their own approaches to local conditions for when it comes to digital equity and inclusion programs. 

Here are some of the other comments that came across out radar: 

The Illinois Broadband Office

The Illinois Broadband office, one of the pioneers in working to get every state resident wired up, urged the NTIA to enable states to promptly engage in planning activities, and provide states with the flexibility and discretion to develop a program design to meet IIJA’s requirement to ensure unserved areas receive broadband connectivity and simultaneously address select underserved markets and eligible community anchor institutions.

They urged that Rural Digital Opportunity Fund and Connect America Fund recipients provide a detailed project status update to the NTIA, FCC, and state broadband offices. 

Additionally, NTIA should work with state broadband offices to learn about their best practices for affordability and develop a reference guide. NTIA should share guidance on the factors to consider when evaluating actual broadband performance tests.

The National States Geographic Information Council

The Council, made up of state geographic information systems professionals, said that broadband mapping must be done at the individual address level rather than the current approach taken by the Federal Communications, which is at the census block level. 

The council urged the NTIA to develop a database that would live in the public domain and would be free to use, saving taxpayer money. The comment letter speaks about developing a method to provide an incentive for states to provide their data to federal mapping efforts and strengthen the National Address Database. 

It urged cooperation between the FCC, the NTIA and the USDA on data gathering and management efforts through their Interagency Agreement. In determining what areas are considered “high cost,” the tools of state GIS offices should be used and information on elevation topography across states should be taken into account. In the challenge process, the public should have a single location and process for filing comments and challenges rather than having multiple agencies separately manage processes.

Akamai

Akamai requested that the NTIA guidelines incentivize strong cybersecurity by subsidizing providers making use of best cyber security practices and working proactively to secure their networks. Akamai also stated that the NTIA should evaluate the extent to which small and medium sized service providers have cybersecurity tools to make their networks safer; it also asked the NTIA to evaluate the extent to which funding applicants are considering cybersecurity options when building out their own networks. Lastly, Akamai requested that the NTIA ensure that broadband buildouts are compatible with “robust [content delivery networks],”and asked the NTIA to “examine the extent to which subsidized operators will be encouraged to provide CDNs with opportunities to deploy technologies deep into last-mile networks, so that it can maximize security, traffic acceleration, and load reduction benefits for newly connected Americans.”

The Electronic Frontier Foundation

The San Francisco non-profit argued at length for the benefits and necessity of funding fiber networks. 

It also urged the NTIA to approach funding in the same way as the federal government had historically with rural electrification – by partnering with local entities. 

It said: "NTIA should form tight partnerships with local entities and offer technical assistance to those entities. This technical assistance should include, at a minimum: 1) assistance with accessing grant funds 2) training on building future-proof fiber networks. More generally, EFF recommends that NTIA establish a franchise-like model of broadband deployment, with NTIA lending its expertise to motivated local partners in exchange for local partners developing and maintaining fiber-optic broadband networks that serve their communities in compliance with the Bipartisan Infrastructure Law."

The Fiber Broadband Association

The association recommended that states and territories should favor all-fiber networks in fund deployment and rationalizes the organization’s decision to advocate for such. 

It emphasized that the NTIA should base the BEAD program upon transparency, objectivity and accountability. 

Rather than reverse auctions, the organization believes states should use a “sealed” bid process since they have little experience with the FCC’s reverse auction mechanism. This also allows the NTIA to audit results as the statute requires. 

FBA also stated that the NTIA should encourage or require states to partially spend grants on adoption, cybersecurity protections and workforce development.

NTCA, the Rural Broadband Association

The NTCA, the Rural Broadband Association strongly urged the NTIA to focus on the accountability of subgrant recipients. "The NTIA should publish objective standards by which applicants for funding will be vetted to ensure that the states adhere to such measures when evaluating applicants," its said in its comment letter. 

The NTIA should also make sure states target unserved areas first, it said. The agency should also “aim higher and do better by consumers" by requiring subgrantees to provide networks of at least 100 Mbps symmetrical service. 

And rather than preferencing providers based on the kind of organization they are, the agency should instead use track records as a yardstick as to whether a provider should be awarded a grant.

The NTCA also had specific recommendations for the NTIA when it came to rules surrounding the low-cost plan requirement. The IIJA requires BEAD recipients to offer eligible subscribers a low-cost internet subscription plan option. The NTCA recommended that states should mirror the basic provisions of the IIJA's Affordable Connectivity Plan. Having a consistent requirement across states would make it simpler for both ISPs to comply with this requirement, and for consumers applying for the benefit, the NTCA argued. 

AT&T

The telecommunications incumbent says that the NTIA should stick closely to the IIJA as written, and avoid adopting extraneous requirements that will increase the costs for areas that already face significant cost barriers and overly burden providers with requirements that make program participation unattractive. Reverse auctions are discouraged and said to be too complicated. The company also says the NTIA should “rely on participation in existing federal affordability programs or a commensurate program to satisfy the BEAD Program’s low-cost broadband service option.” This includes the ACP, and the same eligibility criteria should be used “to determine which consumers are eligible for a subgrantee’s low-cost broadband service option.”

Verizon

Verizon encouraged the NTIA to ensure that states maintain technological neutrality in fund distribution, consistent with the requirements of IIJA. Grantees must consider multiple competing factors, considering for example fiber-to-the-premises in one area and 5G fixed wireless access in another. Verizon said NTIA should attract a wide audience of applicants by implementing a model, standardized process for evaluating and awarding applications which is not overly burdensome or detailed beyond necessity. They should implement a standardized, low-cost broadband service option. Additionally, middle-mile funding should be required to be targeted to areas where it is lacking, and such funding recipients should be required to offer dark fiber at reasonable prices.

T-Mobile

T-Mobile said that the NTIA should maximize the reach of its funding by promoting technological neutrality and thus ensure meaningful accessibility of BEAD funding to all providers. 

Regarding procedures at the state level, the company emphasized that they should be “clearly defined, rigorously enforced, transparent, and objective.” This includes imposing technological neutrality and nondiscrimination obligations on localities and enforcing a “robust,” “transparent, evidence-based, and expeditious challenge process” before any funds are released. Sufficient review procedures and opportunities for stakeholder input should be adopted, consistency in mapping procedures and reliance on federal maps should both be promoted, and BEAD must overall promote sustainability and affordability.

The Rural Wireless Association 

The Rural Wireless Association stated that the deployment of wireless networks “must be a major focus” of BEAD program, and while it conceded that fiber will play a role in the infrastructure, it called on the NTIA to “permit states and subgrantees the flexibility to deploy fixed and mobile wireless networks at the onset.” The organization also asked the NTIA to allow broadband programs to serve unpopulated areas, arguing that closing the digital divide includes providing broadband service to infrastructure in unpopulated regions to enable activities like precision agriculture and oil and gas drilling. An additional area the RWA focused on was workforce and asked the NTIA to “be cognizant” to ongoing workforce shortages while developing its guidelines. The RWA also asked the NTIA to prioritize funding for wireless backhaul.

US Cellular 

US Cellular took a stance against expanding the definition of BEAD-eligible areas beyond the IIJA or Broadband Data Act’s definition. 

It said that both projects planning middle mile upgrades and those in persistent poverty counties should be given some priority in grant distribution, as well as generally commit to supporting technological neutrality. 

The organization specifically asks that a limited programmatic waiver of Buy American be issued for equipment largely unavailable from U.S. suppliers, and that all areas not recorded in the FCC’s DATA Act map be eligible for BEAD funding. They also oppose Congress mandating specific splice points.

INCOMPAS, the Internet and Competitive Networks Association 

INCOMPAS, the Internet and competitive networks association, urged the NTIA embrace three principles: First, competition. Because the Infrastructure Investment and Jobs Act contemplates competitive grant opportunities that permit many types of organizations to compete for program funding, the NTIA should clearly set forth that the broadband programs be awarded through a competitive process and must permit competitive any type of provider to offer service. Second, networks should be primarily fiber insofar as is technically and geographically possible. Third, because there are significant delays in building middle and last mile broadband infrastructure from excessive permitting and rights-of-way fees, NTIA should address and combat these issues head on.

Public Knowledge 

Public Knowledge, a public interest non profit, urged the NTIA to coordinate broadband expansion efforts with federal agencies along with community-based organizations, and people who are negatively impacted by the digital divide to ensure that the funding is being deployed effectively. 

Furthermore, Public knowledge encouraged the NTIA to prioritize net neutrality principles, future-proof networks, open access, municipal networks, reliable networks, disaster resistant networks, and that broadband is distributed through high quality jobs. 

Public Knowledge stressed the importance of prioritizing Tribal communities as they are disproportionately affected by the digital divide. It also said that low-cost broadband options should be available to everyone.

The ACA Connects 

The ACA Connects' comments focused primarily on how the NTIA should work with the states. 

Specifically, they asked that the NTIA make states have uniform, impartial, and auditable processes and standards for all broadband-related programs. It argued that because this new project is so large and the NTIA now has to manage over 50 different jurisdictions, the NTIA and the states would benefit from clear guidelines that each party is required to abide by. It proposed more than 15 direct ways that the NTIA can do so and explained each way in detail. The ACA also maintained the position that these new directives will help mitigate fraud and increase efficiency across the board.

ITIF 

The ITIF proposed targeted use of IIJA funds by prioritizing areas that are completely unserved and not use funds to overbuild areas with functioning networks. 

NTIA should encourage states to adopt cost-saving measures such as one-dig policies, access to right of ways and pole attachments. 

Technology-neutral approaches will ensure flexible means of connection: fixed wireless, satellite, and cable may be appropriate. 

When defining adequate service, NTIA should consider how Americans actually use broadband. 

Maximizing coverage should take priority over maximizing speeds because getting more users online outweighs increasing existing users’ speeds. 

The requirement for symmetrical speeds is arbitrary because users download more data than they upload. 

NTIA needs robust oversight procedures to ensure accountability. Instead of allocating project funds through phases, NTIA should consider not releasing most of the money until the presentation of the finished and working project. NTIA should encourage that the distribution of funds to subgrantees should be conducted through reverse auction (See the FCC’s USF as successful examples). 

NTIA should reject favoritism toward government-run networks or undercapitalized small businesses because experienced broadband providers have a better record of broad, high-quality deployment. 

Subsidies that lower broadband network costs should be carrier neutral and made available to the highest-quality bidder.

WISPA

Interim benchmarks for deployment should be established to promote transparency. 

NTIA funds should not be “used to overbuild locations that are already served with 100/20 Mbps or faster service.” 

The application process should be implemented through a request for proposals, and should include an approval letter from the applicant’s financing source. 

The NTIA should not impose restrictive financial requirements that are difficult for small providers to meet. 

The National Rural Electric Cooperative Association

The National Rural Electric Cooperative Association's response to the NTIA’s request for public comments hinged on several key points. 

Their first point called for funding to prioritize electric cooperatives and nonprofit entities. 

The NRECA also called for improved electrical easements and rights of way to better leverage existing electrical facility infrastructure for broadband services.

In terms of speed requirements, NRECA called for symmetrical, 100 Mbps services over fixed, terrestrial infrastructure. The NRECA also argued that funding should be increased for middle-mile infrastructure, prioritized for areas considered “high-cost,” and made available for cybersecurity purposes; additionally, NRECA requested that middle-mile providers “should be encouraged, if not required, to allow interconnection all along the middle-mile route.” 

The organization also called on state maps to be “flexible but inclusive.”

NCTA – The Internet and Television Association

The NTCA appeared to side against overbuilding, calling for the NTIA to ensure building to unserved areas before underserved locations. 

The NTCA also called on the NTIA to collect and publish data relating to newly connected locations, broadband speeds, and project progress, from funding recipients. Though the NTCA stated that it wanted the NTIA to mandate “enforceable guardrails and safeguards for funding,” it also asked the NTIA to prevent funding recipients from imposing “undue regulatory obligations” on subgrantees but argued that the NTIA should adopt a “presumptive reliance” on state broadband offices and programs “so long as they are consistent with the requirements” established by the NTIA. 

The NTCA called for matching fund requirement waivers to “be granted sparingly,” and to largely abstain for blanket waivers to the matching requirement.” 

NTCA also called for the NTIA to adopt a “blanket waiver of the ‘[Build America], Buy America’” IIJA requirements in order to prevent program deployment from being delayed.

CTIA

Three basic principles should guide NTIA’s administration of the NTIA’s BEAD programs, said the wireless association CTIA. 

First, BEAD should be implemented in a technologically neutral manner so as to not disfavor fixed wireless broadband. 

Second, NTIA should declare than an applicant’s participation in the Affordable Connectivity Program satisfies the obligation to make a low-cost service option available. 

Third the NTIA needs to recognize supply chain realities and ensure that the Buy America provisions do not impede broadband deployment by creating obstacles to using BEAD funds. 

The association also highlighted cybersecurity issues and recommended that NTIA condition grants on recipients’ commitment to use the NIST Cybersecurity Framework to manage cybersecurity and supply chain security risks.

TechFreedom

TechFreedom, a non-profit libertarian think tank in Washington D.C., said that the NTIA is generally ill-equipped to oversee its disbursement of IIJA funds, in part due to a lack of inter-agency coordination and inaccurate past mapping efforts. 

TechFreedom pointed out how FCC maps have overestimated broadband coverage in the U.S., and how on the other hand NTIA maps have underestimated coverage. It stressed that inaccurate maps used for fund disbursement will result in overbuilding where it is not necessary. It also said that the IIJA may prevent private networks from receiving capital to continue with builds. It emphasized that taxpayer dollars should not go to places where private investment had already being received.