U.S. Senator Mitt Romney (R-UT) joined Senators Susan Collins (R-ME) and Rob Portman (R-OH) in sending a letter to Secretary of Commerce Gina Raimondo, calling on the department to follow congressional intent in implementing the Broadband Equity, Access, and Deployment (BEAD) Program that was created through the bipartisan infrastructure law negotiated by Senator Romney and his colleagues. The bill included $65 billion to improve access to broadband. These funds will supplement the good work already being done at the state level to extend Utah’s broadband infrastructure and provide more families—especially those in rural areas—with affordable, fast, and reliable internet.
The National Telecommunications and Information Administration (NTIA) recently issued its Notice of Funding Opportunity (NOFO) for the $42.45 billion BEAD program. While there are some aspects of the NOFO that track the legislation, there are significant concerns about many aspects of the NOFO that deviate from congressional intent. The letter asks the NTIA to revise the NOFO to ensure the BEAD program is implemented as Congress intended.
“There is much to applaud in the NOFO, and we commend you, Assistant Secretary Davidson, and the rest of the Department of Commerce on this monumental work,” the lawmakers wrote in their letter to Secretary Raimondo. “Nonetheless, we are hopeful that NTIA will expeditiously publish revisions and clarifications to the NOFO to address [our] concerns to ensure that the IIJA’s implementation will be consistent with the congressional intent, allow deployment as swiftly as possible, and benefit the consumer.”
The senators are seeking changes to the following areas:
- Rate Regulation. The bipartisan infrastructure law includes an explicit prohibition of government actions that would otherwise interfere with broadband prices and terms in connection with participation in the BEAD program. The NOFO, however, appears to open the door to rate regulation by imposing several requirements not included in the law. The Senators therefore are urging NTIA to rescind or correct these portions of the NOFO and make clear to states that rate regulation of broadband service is prohibited.
- Technology Neutrality. The bipartisan infrastructure law states that any provider that can reliably provide 100/20 mbps is qualified to participate. The NOFO contradicts this by explicitly stating that fiber is the only technology that can meet the definitions of a priority project. The Senators are urging NTIA to clarify that technologies such as fiber, fixed wireless, cable providers, and others have all demonstrated an ability to reliably serve customers at the 100/20 mbps required speed, an ability to scale up service over time, and an ability to support deployment of other advanced telecommunication services.
- Special Preferences for Certain Providers. The bipartisan infrastructure law requires NTIA to “distribute the funds in an equitable and nondiscriminatory manner” and to focus assessments of participating providers on their substantive qualifications. Instead, the NOFO favors certain bidders for reasons unrelated to capability or performance. For example, it requires that Final Proposals include a description of efforts undertaken by states to ensure the participation of “non-traditional broadband providers.” These preferences will deter state broadband offices from selecting the provider that is best equipped to deliver broadband to unserved and underserved households. The Senators are urging NTIA to remove these preferences from the NOFO.
- BEAD and Digital Equity Participation. The NOFO implies that states that do not choose to participate in the Digital Equity Program could be disadvantaged in their BEAD grant applications. To provide greater certainty to states and better conform to the law, the Senators are urging NTIA to revise the NOFO to clarify that a state’s participation in one of these programs will not affect participation in the other.
- Workforce Preferences. Many of the specific workforce-related obligations set out in the NOFO erect considerable roadblocks to ensuring swift deployment of broadband access to all Americans. For example, the NOFO authorizes states to prefer or even mandate a provider’s use of a “directly employed workforce,” as opposed to using contractors and subcontractors. Consequently, the NOFO risks exacerbating the current labor shortage by making it even harder for participating providers to find and employ workers who are not only capable of doing the job but also satisfy these additional extraneous requirements. The Senators are urging NTIA to eliminate those workforce obligations and preferences that could have this deleterious effect.
- Middle Mile Deployment. The NOFO requires participating service providers in the BEAD program to accommodate requests for interconnection outside of the planned deployment of such projects even though the bipartisan infrastructure law includes the separate middle mile grant program to meet these interconnection needs. This requirement is unnecessary and will discourage deployment of broadband service to unserved and underserved locations, which is why the Senators are urging NTIA to remove it.
- Unnecessary Burdens in the NTIA Review Process. The NOFO creates a complex, nine-step, “iterative” structure and review process that is likely to mire state broadband offices in excessive bureaucracy and delay connecting unserved and underserved Americans as quickly as possible. For example, the planning sections on climate resiliency and system hardening for the useful life of the fiber contain multiple layers of research, reporting, and justification that are typically well beyond the focus or expertise of state broadband offices. The Senators are urging NTIA to remove any non-essential bidding processes and research and reporting requirements, and instead focus on rules that prioritize swift review and deployment.
In addition to Senators Romney, Collins, and Portman, the letter was signed by Senators Roger Wicker (R-MS), James Risch (R-ID), Mike Crapo (R-ID), Chuck Grassley (R-IA), Thom Tillis (R-NC), Deb Fischer (R-NE), Kevin Cramer (R-ND), Richard Burr (R-NC), Bill Cassidy (R-LA), Roy Blunt (R-MO). The full text of the letter can be found here.