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Earlier this month, the FCC announced that its 2022 911 Reliability Certification System is now open for Covered 911 Service Providers to file annual reliability certifications.  The filings are due on October 17, 2022.  Failure to submit the certification may result in FCC enforcement action.

Background

In 2013, the FCC adopted rules aimed at improving the reliability and redundancy of the nation’s 911 network.  Those rules require Covered 911 Service Providers (“C9SP”) to take steps that promote reliable 911 service with respect to three network elements: circuit auditing, central-office backup power, and diverse network monitoring.  The Commission identified these three network elements as vulnerabilities following a derecho storm in 2012 that significantly impacted 911 service along the eastern seaboard.

Applicability. The rules apply to all C9SPs, which are defined as any entity that provides 911, E911, or NG911 capabilities such as call routing, automatic location information (ALI), automatic number identification (ANI), or the functional equivalent of those capabilities, directly to a public safety answering point (PSAP).

Certification. The rules require C9SPs to certify annually that they have met the FCC’s safe harbor provisions for each of these elements or have taken reasonable alternative measures in lieu of those safe harbor protections.  The certification must be made under penalty of perjury by a corporate officer with supervisory and budgetary authority over network operations.

In 2018 and 2020, the FCC sought comment on changes to the 911 reliability certification rules, but the rules have not yet been updated as a result of those proceedings.

Enforcement Against Noncompliant Providers

Last year, the FCC entered into eight consent decrees with Covered 911 Service Providers that failed to submit their reliability certifications in 2019, 2020, or both.  A Consent Decree typically requires the recipient to admit it violated an FCC rule, pay a fine to the federal government, and implement a Compliance Plan to guard against future rule violations.  These Compliance Plans required the C9SPs to designate a compliance officer, establish new operating procedures, and develop and distribute a compliance manual to all employees.

Additionally, the providers were required to establish and implement a compliance training program, file periodic compliance reports with the FCC detailing the steps the provider has taken to comply with the 911 rules, and report any noncompliance with 911 rules within 15 days of discovering such noncompliance.

Looking Forward

C9SPs have about one month to confirm compliance with the reliability rules and submit a required certification.  Based on the FCC’s enforcement efforts last year, C9SPs would be well-advised to work diligently to meet this upcoming deadline.

For more information, please do not hesitate to contact Wes Wright (wright@khlaw.com; +1 202.434.4239) or your existing contact at Keller and Heckman LLP.

Keller and Heckman’s Telecommunication’s Practice continues to be the only law firm in the United States included in Broadband Communities Magazine’s esteemed 2022 Fiber-To-The-Home Top 100 list.

“My colleagues and I at Keller and Heckman are dedicated to providing counsel to a wide variety of organizations that are providing fiber optic infrastructure and services in communities across America,” said Partner Jim Baller. “We are thrilled that Broadband Communities Magazine continues to recognize our achievements in this field by once again including our law practice in the Fiber-To-The-Home Top 100.”

Every year, Broadband Communities Magazine celebrates organizations across multiple industries for their contributions toward building a fiber connected future, recognizing them in its highly respected Fiber-To-The-Home (FTTH) Top 100 list. “Fiber-to-the-Home” specifically focuses on the world of fiber optic communications infrastructure extending all the way to residential premises, often referred to as “future proof” because it is the most advanced and highest capacity vehicle for transmission of information.

About Keller and Heckman

Celebrating 60 years of excellence, Keller and Heckman is an internationally renowned law firm with a broad practice in the areas of regulatory law, public policy, and litigation. From offices around the world, they represent global companies and trade associations servicing a range of industries, including food and food additives, plastics, pesticides, industrial and specialty chemicals, consumer products, drugs and medical devices, transportation, and telecommunications. Keller and Heckman is a pioneer in the use of interdisciplinary approaches to problem-solving with an in-house scientific staff that works closely with the attorneys on matters of technical complexity.

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The Federal Communications Commission (“FCC” or “Commission”) launched its Broadband Data Collection (“BDC”) program on June 30, 2022. As we have previously discussed in the first and second blog posts of our BDC series, all facilities-based providers of fixed and mobile broadband Internet access that have one or more end user connections in service are required to file broadband availability data in the BDC system by September 1, 2022. In this post, we highlight resources available to filers navigating the BDC system.

Getting Started

As previously discussed, the purpose of the BDC is to enable the FCC, acting through its contractor (CostQuest Associates), to develop a comprehensive database of serviceable broadband locations where fixed broadband Internet access service has been or could be installed – the “Broadband Serviceable Location Fabric” (“Fabric”). Accordingly, in order to make the Fabric as comprehensive as possible, all facilities-based fixed service providers are required to report broadband Internet access service coverage and identify where such services are offered to residential and business locations. The rules establish speed and latency reporting requirements for fixed service providers and require terrestrial fixed wireless services providers to report the coordinates of their base stations. Mobile service providers are required to provide even more information. Given the breadth of data required to be filed under this new program, the FCC has rolled out a number of on-line resources to assist filers.

In addition to Keller and Heckman’s explanation on The Who, What, When, and Where of the FCC’s New Broadband Data Collection, filers may utilize the FCC’s Information for Filers webpage to gather general information regarding entities that are required to file data and what is expected of them. All data collected must be up to date as of June 30, 2022, and should be submitted by September 1, 2022. The BDC is a biannual data collection, so filers should also be prepared to file data as of December 31, 2022, by March 1, 2023.[1]

For a comprehensive understanding of the BDC system, filers should access the BDC Help Center. This resource is a one-stop-shop for all information relating to the program. Among other resources, the BDC Help Center has a link to the BDC Filer User Guide. The Filer User Guide provides step-by-step instructions on using the BDC system and making filings.

The Help Center also has a link to the BDC Availability Data Specifications. The Availability Data Specifications provide detailed information on the format of data submissions. Filers should review these specifications in order to understand how certain data files should be uploaded to the system and the requirements for entering data appropriately. Filers should reference the Availability Data Specifications while completing their data submission to ensure that all data is filed according to FCC requirements.

The BDC Help Center also has instructional video tutorials and webinars. It is recommended that filers view these videos before beginning the filing process in order to familiarize themselves with the BDC system.[2]

In addition to all of the above resources, should you have any questions on the BDC program or filing Form 477, please do not hesitate to contact Sean Stokes (stokes@khlaw.com), Kathleen Slattery Thompson (slattery@khlaw.com), or your existing contact at Keller and Heckman LLP.

[1] It is important for broadband Internet access service filers of Form 477 to remember that they must also continue to file BDC data until the FCC terminates Form 477. Telecommunications service and interconnected voice over Internet protocol providers that do not offer broadband service are only required to file Form 477 and do not currently need to participate in the BDC program. For those interested in learning more about filing Form 477, the Commission also provides Form 477 Resources.

[2] The BDC Help Center also provides ongoing system updates, public notices, and other news relating to the BDC, as well as answers to frequently asked questions about using the BDC system, and understanding the Location Fabric.

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With tens of billions of dollars being made available for rural broadband infrastructure projects, electric utilities – including rural electric cooperatives, publicly owned power companies, and investor owned utilities – stand ready to play a crucial role in bringing broadband to unserved and underserved areas of the U.S. Easement issues are a significant concern for many of them.

Utilities have easement agreements with private property owners that allow the utility to install poles and run wires across a strip of property. A single utility may have hundreds or even thousands of such agreements adopted at various times over a utility’s long history. While these easements were secured to transmit electric power, the addition of broadband infrastructure for the purpose of providing commercial communications services – even just an additional fiber optic cable –may potentially exceed the scope of the easement, leading to potential claims by landowners for damages based in trespass, unjust enrichment, or other legal theories.

Fortunately, an increasing number of states have alleviated this concern. Seeking to encourage the development of broadband infrastructure in rural areas, roughly 20 states have implemented some form of legislative fix, most within the past three years. These include: Alabama, Arizona, Colorado, Georgia, Hawaii, Maryland, Michigan, Minnesota, Mississippi, Missouri, Nebraska, North Carolina, Ohio, Oregon, Pennsylvania, South Carolina, Tennessee, Texas, Vermont, Virginia, and West Virginia.[1]

Easements are Messy

If a utility’s easements were generally the same, or if they were negotiated with just a handful of landowners, the challenge would be less daunting: the utility could simply propose a set of easement modifications to accommodate communications infrastructure. The landowner may (or may not) seek additional compensation in such a case, but it would probably be manageable.

But electric utilities (or their predecessors in interest) have been around a long time. The easements may have been executed last year or a hundred years ago. They may involve a large number of landowners with disparate priorities. Some may be cooperative; some may not. Some may be difficult to locate. In short, attempting to amend a utility’s existing easement agreements is potentially a tall order.

Will the Existing Easements Work?

It is possible that a utility’s existing easements will accommodate the installation and operation of new fiber optic facilities within the easement. Several factors should be considered, among them:

  • What is the exact language of the easement? Is it expressly limited to the provision of electric service, or can it be interpreted more broadly?
  • Does the existing easement allow the utility to install, maintain, and operate fiber in support of electric service (SCADA, AMI, Distribution Automation, etc.)?
  • Do third-party fiber or cable communication lines exist within the easement?
  • What is the additional physical burden on the servient estate?
  • How do the relevant state’s courts decide cases involving contractual gaps or ambiguities?

While a number of cases have considered whether electric easements may include communications facilities within their scope, they tend to be fact-specific and not entirely consistent.

Assessing Risks and Rewards

Without protective legislation, an electric utility that seeks to deploy fiber infrastructure for commercial broadband within its existing electric easements will need to weigh the benefits of the deployment against the potential risk of legal action, factoring in the significant federal and state funding available to bring fiber-based broadband to unserved and underserved areas of the country.

If your utility has any questions about this topic or would like more information about broadband issues, please do not hesitate to contact Casey Lide (lide@khlaw.com), Tom Magee (magee@khlaw.com), or Keller and Heckman’s Telecommunications Practice Group (broadband@khlaw.com).

[1] The majority of these state laws are directed toward electric cooperative utility easements.

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As discussed in our initial post in this series, the FCC is about to launch its new Broadband Data Collection (“BDC”) program. Starting this summer, all facilities-based providers of fixed and mobile broadband Internet access services will be required to submit broadband data on a biannual basis.

In this post, we delve into the who, what, when, and where of the BDC filing obligations and process.

Who is Required to File?

The purpose of the BDC is to enable the FCC, acting through its contractor (CostQuest Associates), to develop a comprehensive database of serviceable broadband locations where fixed broadband Internet access service has been or could be installed – the “Broadband Serviceable Location Fabric” (“Fabric”).

In support of this initiative, all facilities-based providers of fixed and mobile broadband Internet access who have one or more end user connections in service on June 30, 2022, must file. In most cases, if you are currently required to file FCC Form 477, you must also submit data in the BDC. See details below.

In addition, the FCC’s BDC rules also allow and encourage federal agencies, as well as state, local, and Tribal governmental entities that are primarily responsible for mapping or tracking broadband Internet access service coverage in their areas, to submit verified availability data as of June 30, 2022.[1]

Finally, parties who are not themselves the reporting providers (e.g., public interest groups or competing providers) may submit verified broadband availability data as of June 30, 2022. These third parties will also be able to submit data as part of the BDC challenge and crowdsource processes. The FCC will provide additional information in future announcements about how to participate in these processes.

What Needs to be Filed?

While all facilities-based providers of fixed and mobile broadband Internet access must file information concerning the characteristics of their broadband services and the availability of such services, different information requirements apply depending on the type of facilities being utilized to provide service:

  • Fixed wireline and satellite broadband service providers must submit either polygon shapefiles depicting the locations served or a list of locations that constitute the service area of the provider. This will identify locations where the provider currently provides service, or could provide service, as part of a “standard broadband installation” within ten business days following a request, with no charges or delays resulting from extending the provider’s network.
  • Fixed wireless broadband service providers must submit either propagation maps and propagation model details or a list of locations that constitute the service area of the provider.
  • Mobile wireless broadband service providers must submit propagation maps and propagation model details for each network technology and for both outdoor stationary and in-vehicle mobile network coverage. Mobile wireless broadband service providers must also submit signal strength “heat map” data.

In addition to providing information on serviceable locations, affected broadband providers must  provide supporting data related to broadband services offered, including speed and latency.[2] Data specifications for BDC filings can be found here: BDC Availability Data Specifications.

The BDC rules require all facilities-based broadband providers to submit certifications as to the accuracy of their submissions by a corporate officer and a qualified engineer (if a corporate officer is also an engineer and has the requisite knowledge required under the Broadband DATA Act, a single certification may be submitted). The engineering certification must state that the certified professional engineer or corporate engineering officer is employed by the service provider and has direct knowledge of, or responsibility for, the generation of the service provider’s BDC coverage maps and that the information provided is true and correct.[3] Failure to include such a certification is subject to FCC enforcement penalties.

When to File?

The BDC system will open for filings on June 30, 2022, and all providers are required to file by September 1, 2022. Going forward, the FCC’s Broadband Data Collection will occur twice a year on the same schedule as Form 477 filings.[4]

Fixed broadband service providers may now access a preliminary version of the Broadband Serviceable Location Fabric for the purpose of preparing their data and processes for the initial BDC filing window.[5]

Where (How) to File?

Filers must either submit data into the BDC system via file upload and/or web form or through an Application Programming Interface (API). The FCC has indicated that it will, in the near future, provide a system user guide and instructions on how to use the optional API and other technical assistance resources. Additional resources for filers are available in the BDC Help Center.

Compliance with the BDC will entail a significant amount of time, and broadband service providers should not delay preparing for the upcoming initial filing.

Our next entry will focus on the BDC challenge process.

Should you have any questions on the BDC program or filing Form 477, please do not hesitate to contact Sean Stokes (stokes@khlaw.com), Kathleen Slattery Thompson (slattery@khlaw.com), or your existing contact at Keller and Heckman LLP.

[1] Additional guidance for governmental entities seeking to file verified broadband availability data in the BDC can be found in this Public Notice released on April 14, 2022.

[2] As a reminder, facilities-based broadband providers are required to continue to file Form 477 until instructed otherwise by the FCC.

[3] 47 CFR § 1.7004; Note, the FCC is seeking public comments on a petition filed by the Competitive Carriers Association (“CCA”) requesting that the FCC clarify that BDC filings may be certified by a qualified professional engineer or an otherwise-qualified engineer who does not hold a professional engineer license.

[4] Generally, under the Form 477 program, data as of June 30th is due no later than the following September 1st, and data as of December 31st is due no later than the following March 1st.

[5] Additional information can be found in this Public Notice released on April 14, 2022.

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The Federal Communications Commission (“FCC” or “Commission”) is poised to implement a comprehensive overhaul of its existing broadband data mapping and collection process with a new Broadband Data Collection (“BDC”) program. Under the BDC, all facilities-based providers of fixed and mobile broadband Internet access services will be required to submit broadband data on a biannual basis. As discussed below, the initial filing window is between June 30, 2022, and September 1, 2022.

Ensuring nationwide access to affordable high-speed broadband service is a national priority. A critical but elusive step in this effort is accurate broadband availability data. This challenge is even more pressing in light of the unprecedented federal broadband funding being made available under the Infrastructure Investment and Jobs Act (“IIJA”)(See Keller and Heckman’s Broadband Infrastructure Funding Blog Series | Beyond Telecom Law Blog).

This entry is the first in a series of posts on the FCC’s Broadband Data Collection program and will provide background and an introduction to the program, as well as an overview of key requirements. Subsequent posts will delve more deeply into specific requirements as well as corresponding data collection provisions of the IIJA.

Current Broadband Data Collection Processes and the History of Form 477

Over the past two decades, the FCC has addressed the challenge of obtaining accurate broadband availability data, with the most comprehensive effort to modernize data collection coming in 2019 with the FCC’s adoption of a Digital Opportunity Data Collection (“DODC”) proceeding. Not long after, Congress passed the Broadband Deployment Accuracy and Technological Availability (“DATA Act”). These two efforts pushed the FCC to work towards a data collection solution that fits today’s landscape culminating in the new BDC program.

Historically the FCC has collected broadband deployment data from facility-based service providers through FCC Form 477. In its current iteration, Form 477 collects data twice each year at the census block level, instructing service providers to report as “served” any Census block in which any homes or businesses are served by the service provider. Under this approach, if a provider makes fixed broadband available to one location in a census block, the entire block is considered served by the provider.

Digital Opportunity Data Collection and the Broadband DATA Act

In 2019, the Commission concluded “that there is compelling and immediate need to develop more granular broadband deployment data” and, to meet this goal, initiated a proceeding to create the Digital Opportunity Data Collection (“DODC”) program.[1] The FCC described the DODC initiative as “a new data collection that will collect geospatial broadband coverage maps from fixed broadband Internet service providers of areas where they make fixed service available.”[2] In addition to establishing the Data Collection, the FCC adopted a process for crowdsourcing information to allow the public to provide input regarding providers’ broadband coverage maps. As part of this effort, the FCC sought comment on sunsetting the Form 477.

On March 23, 2020, Congress enacted the DATA Act. The DATA Act requires the FCC to adopt rules regarding the collection and dissemination of granular broadband service availability data, with the goal of establishing a “Broadband Serviceable Location Fabric,” which will be a dataset of all locations in the U.S. where fixed broadband Internet access service can be installed. The data must be geocoded, compatible with commonly used GIS software, and updated at least every 6 months.

In creating the Fabric, the DATA Act requires the Commission to establish processes to (i) verify the accuracy of the data submitted by broadband service providers, (ii) collect verified availability data from other federal agencies, state, local, and Tribal governmental entities, and other third parties, and (iii) facilitate “a user-friendly challenge process through which consumers, state, local, and Tribal governmental entities, and other entities or individuals may submit coverage data to the Commission.

Over the past two years, the Commission has adopted a series of orders aimed at implementing the DATA Act and creating its new BDC program.[3] These include data submission requirements, verification procedures, and coverage maps necessary to create the Fabric, as well as establishing a challenge process as to what constitutes a “broadband serviceable location,” as well as rules on sunsetting the census-block approach used on Form 477.

Under the FCC’s BDC program, all facilities-based fixed service providers are required to report broadband Internet access service coverage and identify where such services are offered to residential and business locations. The rules establish speed and latency reporting requirements for fixed service providers and require terrestrial fixed wireless services providers to report the coordinates of their base stations. Mobile service providers are required to provide even more information.

On February 22, 2022, the Commission issued a Public Notice announcing the filing dates for the inaugural data collection under the new BDC program. Providers can begin submitting data on June 30, 2022, and all data must be submitted by September 1, 2022. On March 4, 2022, the Commission published Data Specifications for the Broadband Data Collection related to the biannual submission of subscription, availability, and supporting data for the BDC. The specifications provide guidance to filers on how to prepare and format availability and other related data for submission. On March 9, 2022, the Commission published two more data specifications, which provided additional detail about the technical elements of the data to be collected as part of the mobile challenge, verification, and crowdsource processes.[4]

The FCC’s implementation of the BDC and the initial filing window does not alter the on-going obligation of facility-based fixed or mobile broadband service providers to file the semiannual Form 477. Until the Commission announces a sunset date for the submission of Form 477 broadband deployment data, all service providers currently required to submit these data under Form 477 must continue to do so.

We encourage broadband service providers to closely review the data specifications in preparation for the upcoming BDC. Once the filing window opens, we recommend that providers submit their information as early as possible to allow for issues that may arise due to the new process.

Our next entry will focus on the who, what, how, when, and where of the BDC filing.

[1] FCC Establishes New Digital Opportunity Data Collection, WC Docket Nos. 19-195, 11-10, Press Release (rel. August 1, 2019).

[2] Id.

[3] Second Report and Order and Third Further Notice of Proposed Rulemaking; Third Report and Order.

[4] FCC Publishes Data Specifications for the Broadband Data Collection; FCC Releases BDC Mobile Technical Requirements Order.

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We understand that regulatory compliance is not the most engaging issue. Whether planning to deploy a new broadband network or operating an existing one, ensuring that the network and services are fully compliant with various state and federal regulatory obligations is an easy task to put off. But if not addressed, regulatory compliance can turn into a very expensive problem.

Now would be an ideal time to identify and address any regulatory compliance issues for several reasons:

  • A regulatory compliance failure could have implications for grant funding. Many broadband projects have received funding support through the American Recovery and Reinvestment Act (ARPA). Subawards made through ARPA typically require recipients to comply with all applicable state and federal regulations as a contractual matter. Broadband grants made under forthcoming Infrastructure Act programs (BEAD, etc.) may include similar requirements.
  • Any transfer of control or acquisition of a broadband network or company will normally require a detailed review of the company’s regulatory compliance status. Transactions involving broadband providers that receive support from one of the FCC’s Universal Service Fund/High Cost Fund programs will involve close scrutiny to ensure the target company is in compliance with applicable requirements. Any outstanding compliance issues can significantly delay those transactions.
  • The FCC could implement an enforcement action, potentially resulting in fines and other adverse consequences.

As readers are probably aware, broadband service is comparatively “unregulated” (as opposed to “telecommunications service”). Consequently, broadband providers that are not also providers of “telecommunications service” have relatively few regulatory obligations. Nevertheless, a number of important regulatory obligations are likely to apply to most broadband providers, including the following:

  • Posting of a “network transparency” statement
  • Annual submission of Form 477 (broadband connection reporting)
  • Submission of data for the new FCC Broadband Data Collection initiative (as finalized)
  • Submission of a CALEA System Security and Integrity Plan
  • Compliance with Digital Millennium Copyright Act safe harbor requirements (copyright policy, etc.)

If interconnected VoIP is provided alongside broadband service, the regulatory compliance obligations expand significantly. In that case, regulatory obligations may also include, for example:

  • Annual submission of Form 499-A, and, if not a de minimis contributor, quarterly 499-Q (Federal Universal Service Program Reporting and Contributions)
  • Development of Customer Proprietary Network Information (CPNI) compliance program and annual certification regarding such compliance
  • STIR/SHAKEN compliance certification
  • Annual disability reporting certification (per CVAA)
  • E-911 fee requirements

Even if you have undertaken a compliance review at some point in the past, keep in mind that the FCC’s rules are constantly evolving, and the nature of your services and customers may have changed as well.   It is important to periodically refresh past compliance decisions to ensure that they are still valid.

If you would like to explore whether your company or project is fully compliant with all applicable regulatory requirements – and what to do if you are not – we would be glad to speak with you. Please contact one of the attorneys in the Telecommunications Practice Group, or email us at khbroadband@khlaw.com to set up an initial discussion.

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Keller and Heckman Partners Jim Baller, Casey Lide, Tracy Marshall, Sean Stokes, and Wes Wright will present at a workshop during the Broadband Communities Summit to take place in Houston, Texas on May 2-5, 2022. The summit will feature presentations by community leaders focusing on providing high-speed broadband networks. It will also address the key legal issues at every stage, from preliminary opportunity assessment to ongoing operation and regulatory compliance. Jim, Wes, Tracy, and Sean’s presentation is titled, “Key Legal Issues Affecting Public Broadband Initiatives and Partnerships.” Additionally, Jim will present at a super session sponsored by the Coalition for Local Internet Choice (CLIC) on, “Broadband Partnerships for these Extraordinary Times.”

For more information on this event, including registration, please click here.

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Broadband grants awarded under programs established by the American Rescue Plan Act (ARPA) and the Infrastructure Investment and Jobs Act (IIJA) could be subject to federal corporate income tax, effectively requiring corporate recipients of grant funds to return 21 percent of it to the federal government.

While the IRS has in the past declared a “safe harbor” from taxation for certain broadband grants (specifically, BTOP and BIP grants, in 2010), doing so now could be more challenging due to statutory changes adopted as part of the 2017 Tax Cuts and Jobs Act, as described below.

If not conclusively addressed, the taxation issue could significantly blunt the positive impact of broadband grants made under ARPA and the IIJA, including the massive $42 billion infusion forthcoming under the BEAD program. Entities expecting to receive grant funds would need to budget for the tax bill, potentially requiring a reduction in the scope of their project. Entities might also consider structuring a project so that grant funds are received by tax-exempt entities.

This blog post provides a high-level overview of these issues. Please note that the following is a greatly simplified discussion provided for general informational purposes only. It is not intended to serve as legal advice and should not be treated as such, especially with respect to an individual entity’s tax status.

1. In general, federal grants are taxable.

As a starting point, the receipt of a government grant by a business is generally not excluded from the business’s gross income under the Internal Revenue Code and is, therefore, taxable.[1] “A federal grant is ordinarily taxable unless stated otherwise in the legislation authorizing the grant.”[2] (A government loan, on the other hand, is not taxable, because it must be paid back.)

2. “Nonshareholder contributions to capital” (Brown Shoe Co., Inc. v. Commissioner).

While the general rule states that a federal grant is taxable income, a doctrine first enunciated in 1950 has provided a basis to hold that a federal grant can be excluded from gross income. In the 1950 case of Brown Shoe Co., Inc. v. Commissioner, the U.S. Supreme Court considered the tax treatment of cash and property received by a shoe company from community groups as an inducement to locate company facilities in the community.[3] The Court held that the income received by the shoe company from the community groups represented “contributions to capital” by nonshareholders, and could, therefore, be excluded from income. The Court’s reasoning emphasized that the contributions to the shoe company by the community were made for a community benefit, and not in exchange for direct service, “their only expectation being that such contributions might prove advantageous to the community at large.”[4]

3. IRC Section 118.

In 1954, Congress enacted IRC Section 118, which directly addressed nonshareholder contributions to capital and essentially codified the Brown Shoe Co. holding. The general rule of Section 118 was that gross income of a corporation does not include any contribution to its capital. As a 2018 publication from Deloitte notes, Section 118 “went on to say that a contribution to capital did not include any contribution in aid of construction or any other contribution from a customer or potential customer, meaning that these amounts were taxable and included in gross income. This meant that other non-shareholder capital contributions could be excluded from a corporation’s gross income.”[5]

4. 2010 BTOP and BIP grant programs: IRS Rev. Proc. 2010-34.

In the American Recovery and Reinvestment Act of 2009, Congress created two significant broadband grant programs: The $4 billion Broadband Technology Opportunities Program (BTOP) administered by NTIA, and the $2.5 billion Broadband Initiatives Program (BIP) administered by the U.S. Department of Agriculture’s Rural Utilities Service.   The BTOP and BIP programs presented the same taxation issue as that currently before us: would corporate grant recipients be required to report the grant funds as gross income?

In 2010, the IRS pronounced that BTOP and BIP grant funds need not be reported as gross income.[6] In doing so, the IRS relied entirely on the aforementioned Section 118. The IRS said: “Section 118(a) of the Code provides that in the case of a corporation, gross income does not include a contribution to the capital of the taxpayer. Section 1.118-1 of the Income Tax Regulations provides that section 118 applies to contributions to capital made by a person other than a shareholder, for example, property contributed to a corporation by a governmental unit for the purpose of enabling the corporation to expand its operating facilities.”[7] On this basis, the IRS said it would not challenge a corporate taxpayer’s exclusion of BTOP and BIP grant funds from gross income.

Based on the IRS’s 2010 determination, one might reasonably assume that broadband grants made under ARPA and IIJA programs could be safely classified as non-taxable income, with the IRS perhaps needing only to update its 2010 determination (which dealt specifically with BTOP and BIP) to apply to the new grant programs. Unfortunately, a 2017 legislative change has complicated the situation.

5. The 2017 Tax Cuts and Jobs Act.

The 2017 Tax Cuts and Jobs Act (TCJA) significantly amended IRC Section 118.[8] Most relevant for our purposes, the TCJA added an exception to the definition of “contribution to the capital of the taxpayer” so that the term no longer includes “any contribution by any governmental entity or civic group….”[9] As the Deloitte paper notes, “[t]he TCJA left unchanged Section 118’s general rule that contributions to capital are not included in gross income. What did change is the addition of language to Section 118 that makes grant proceeds from governmental entities or civic groups to a corporation taxable upon receipt as gross income….”[10]

In short, the legislative changes adopted in 2017 seem to foreclose the rationale used by the IRS in 2010 to allow BTOP and BIP grant funds to be exempt from taxation.

6. What Now?

As explained above, broadband grant funds received by corporations under ARPA (for example, as a subrecipient in a project funded under the Coronavirus State and Local Fiscal Recovery Fund), or under the forthcoming IIJA programs (including the BEAD program) could well be “gross income” subject to taxation at a 21 percent rate. Such an outcome would be clearly contrary to the objectives of ARPA and the IIJA and would hamstring national efforts to deploy vitally needed broadband infrastructure.

Prompt action by the IRS would resolve the issue, but after the 2017 TCJA, it is unclear whether and how the IRS would be able to do so. If the IRS is unable to solve the problem, Congressional action may ultimately be necessary.

[1] Internal Revenue Service, “CARES Act Coronavirus Relief Fund frequently asked questions,” accessed 3/1/2022.

[2] Internal Revenue Service, Publication 937 Business Reporting, IRS Pub. 937, 1989 WL 508466 (1989).

[3] Brown Shoe Co., Inc. v. Commissioner of Internal Revenue, 339 U.S. 583 (1950).

[4] Id., at 591; see, e.g., U.S. v. Chicago, Burlington, and Quincy Railroad Co., 412 U.S. 401 (1973).

[5] Deloitte, “Tax Reform Impacts on Section 118,” Journal of Multistate Taxation and Incentives, Vol. 28, No. 6, September 2018.

[6] Internal Revenue Service Rev. Proc. 2010-34.

[7] Id.

[8] See James Adkinson, “State and Local Location Incentives:  Reminder That the Rules Have Changed,” The Tax Adviser, June 1, 2019.

[9] 26 U.S.C. § 118(b).

[10] Deloitte, supra.

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$10 Billion Treasury Program Makes Available $100 Million+ for Each State – But States Need to Apply For It

Over the past several months, broadband policymakers, advocates, and service providers have focused primarily on two main developments in the world of broadband infrastructure funding:

  1. American Rescue Plan Act (ARPA) funds that are already available to States and local governments through the ARPA State and Local Fiscal Recovery Fund (SLFRF) (ARPA Sections 602 and 603), which may be used for “necessary…broadband infrastructure”; and
  2. The massive broadband funding programs enacted as part of the Infrastructure Investment and Jobs Act (“IIJA”), including the $42.45 billion Broadband Equity and Deployment (BEAD) Program (from which funding is unlikely to be generally available until 2023).

States, local governments, service providers and potential partners should also be aware of the Coronavirus Capital Projects Fund (CPF), another significant broadband infrastructure funding opportunity that seems to have been overshadowed by the other programs above. While States await rules and eligibility determinations for the Infrastructure Act funds, CPF funding may be available in the meantime. Moreover, CPF funding might be suitable for projects that may not otherwise be eligible for funding under the Infrastructure Act: there is no formal requirement that CPF-funded broadband projects serve “unserved” or “underserved” locations, for example (as further discussed below). 

Adopted as Section 604 of ARPA and administered by the Treasury Department, the CPF makes available $10 billion to States, territories, and Tribal governments – not directly to local governments – “to carry out critical capital projects directly enabling work, education, and health monitoring, including remote options, in response to the public health emergency.” Each State is allocated at least $100 million. Note that this is in addition to ARPA SLFRF funds that the State may already have received. 

Unlike the ARPA provision establishing the SLFRF, which enables funds to be used for “necessary… broadband infrastructure,” the CPF statute does not even include the word “broadband.” However, Treasury has made clear that broadband infrastructure is an acceptable use of CPF funds. In fact, Treasury seems to be actively encouraging it, giving more emphasis to broadband than to any other purpose to which the funds may be put: “Treasury is launching the Capital Projects Fund to allow recipients to invest in capital assets that meet communities’ critical needs in the short- and long-term, with a key emphasis on making funding available for broadband infrastructure.”  

100 Mbps symmetrical. A broadband infrastructure project supported with CPF funds must be “designed to deliver service that reliably meets or exceeds symmetrical speeds of 100 Mbps so that communities have future-proof infrastructure to meet their long-term needs.” More to the point, “[r]ecipients are encouraged to prioritize investments in fiber-optic infrastructure where feasible.” As with SLFRF funding, though, if it would be impracticable “because of geography, topography or excessive cost,” a broadband project may provide between 20 Mbps and 100 Mbps upload speeds so long as it is scalable to symmetrical 100 Mbps.

No “unserved”/“underserved” requirement. There is no firm requirement that a CPF-funded broadband project must primarily serve “unserved” or “underserved” locations, but Treasury’s CPF Guidance states that applicants are “encouraged to focus on serving locations without access to reliable wireline speeds of [100/20 Mbps].” State recipients must articulate “why the communities they have identified to be served by Broadband Infrastructure Projects have a critical need for those projects as is related to access, affordability, reliability and/or consistency.” (at p. 4)

“Any available data.” “When determining the communities to be served by Broadband Infrastructure Projects, Recipients may choose to consider any available data including but not limited to documentation of existing broadband internet service performance, federal and/or state collected broadband data, user speed test results, interviews with community members and business owners, reports from community organizations, and any other information they deem relevant.”

Local governments, non-profits, and cooperatives encouraged. As with SLFRF-funded broadband projects, Treasury “encourages Recipients [i.e., States] to prioritize Projects that involve broadband networks owned, operated by or affiliated with local governments, non-profits, and co-operatives—providers with less pressure to generate profits and with a commitment to serving entire communities.” (CPF Guidance, at p. 3)

Affordability. Treasury’s CPF Guidance encourages States to address affordability “as a barrier to full use of the internet when developing their Program Plans for Broadband Infrastructure Projects,” and States are required to consider affordability when selecting broadband infrastructure projects to fund.  States “are also encouraged to consult with the community as part of the process they undertake to consider affordability and are required to publish the description of their process for considering affordability in their project selection process.”
(at p. 4)  

States must submit a “Grant Plan” for CPF funds. Unlike ARPA SLFRF funds, which are automatically provided to States and local governments in accordance with a particular formula, States must submit an application to receive CPF funds. States should have already applied to receive CPF funds generally (the deadline was December 27, 2021). States must then submit a single, detailed Grant Plan proposing how the State will use the funds, along with one or more “Program Plans,” which must be received by September 24, 2022. “For example, a State might file a Grant Plan that indicates that it intends to spend funding on broadband deployment throughout the State, and a Program Plan that provides detailed information on its deployment plan for only some of the counties in the State. Later, it could file Program Plans detailing its deployment plans for other counties in the State.” (CPF Guidance, at p. 15)

State Grant Plans will be reviewed by Treasury, and funds disbursed, on a rolling basis.

Subawards by State Recipients. As noted, CPF funding will be made available only to States, territories, and Tribal governments. Those recipients are expected to award funds to subrecipients, such as other levels or units of government (e.g., municipalities or counties), non-profits, or private entities. 

For additional details on the Coronavirus Capital Projects Fund, please refer to the following Treasury Department publications:

• Treasury Department CPF Website

• CPF Guidance

• CPF FAQ