Part 2 of the Keller and Heckman Infrastructure Act Blog Series

Keller and Heckman’s Telecommunications Practice Group is publishing a series of Blog Posts to explore various provisions of the Infrastructure Investment and Jobs Act (“the Act”), which allocates $65 billion to support various types of broadband initiatives. The first substantive post in our series, on November 12, examined the $42.45 billion Broadband Equity, Access and Deployment (“BEAD”) program to fund a last-mile broadband development grant program.

This blog post – Part 2 of our series – dissects a portion of the Act allocating an additional $1 billion for middle mile broadband infrastructure projects (see Div. F, Title IV, “Enabling Middle Mile Broadband Infrastructure”).

Background

Middle mile infrastructure does not provide service directly to end users but is critical for expanding reliable broadband service into unserved and underserved areas. A way to maximize the likelihood of securing federal funding for middle mile projects is to enter into creative partnerships with entities that have existing infrastructure and expertise to provide an end-to-end solution.

The energy sector – utilities, electric cooperatives, oil & gas companies – and public entities could serve as invaluable partners on these projects.

We are not the only ones who think so. Last week, the National Association of Regulatory Utility Commissioners (“NARUC”) issued a Resolution Supporting Energy Company Communications Infrastructure for Broadband Expansion. It encourages, “energy companies to consider sharing wired and wireless ‘middle mile’ communications infrastructure to support expansion of consumer broadband access and, with respect to any wireless networks, coordinate to reduce equipment costs and enable provision of network services to other utilities with overlapping service territories.”

The NARUC Resolution dovetails nicely with the unique requirements of the middle mile program, which encourages partnerships and identifies critical infrastructure companies as desirable partners for several reasons. First, the middle mile program explicitly prioritizes projects that are able to, “leverage existing rights-of-way, assets, and infrastructure to minimize financial, regulatory and permitting challenges.” (emphasis added).  Second, eligible applicants include a virtually unlimited range of public and private entities. In light of the 30% matching requirement (discussed further below), owners of existing infrastructure or rights-of-way that can be used to support network development have an opportunity to provide a meaningful contribution toward a middle mile application.

In the coming months, the National Telecommunications and Information Administration (NTIA) will adopt application rules and procedures providing more specificity and timelines for the middle mile program. For now, though, let’s explore the key statutory provisions:

Program Purpose. The purpose of the middle mile funding program is twofold: (i) to expand and extend infrastructure to reduce the cost of connecting unserved and underserved areas to the backbone of the Internet; and (ii) to promote broadband resiliency through the creation of alternative network connection paths designed to prevent single points of failure on a broadband network. These twin objectives of: (a) enhancing connectivity for last-mile un/underserved networks; and (b) promoting network resiliency, inform the overall structure of the program and its requirements.

Eligibility. Entities eligible to participate in the program include State and local governments, Tribal governments, technology companies, electric utilities, utility cooperatives, public utility districts, telecommunications companies, telecommunications cooperatives, nonprofit foundations, corporations, nonprofit institutions, nonprofit associations, regional planning counsels, Native entities, or economic development authorities.

Partnerships of two or more of these types of entities are also explicitly permitted and encouraged.

Administration. The Program will be administered by NTIA. Unlike the BEAD Program, the middle mile program will not flow through the States; applicants will apply directly to NTIA for funds.

Priority. The Act requires the agency to prioritize projects that: (i) leverage existing rights-of-way, assets, and infrastructure (as noted above); (ii) enable the connection of unserved anchor institutions, including Tribal anchor institutions; (iii) facilitate the development of carrier-neutral interconnection facilities; and, (iv) improve redundancy and resilience while reducing regulatory and permitting barriers.

NTIA also is required to prioritize any project in which the applicant has done two or more of the following:

  • adopted fiscally sustainable middle mile strategies;
  • committed to offering non-discriminatory interconnection to wired and wireless last mile broadband providers and any other party making a bona fide request;
  • identified in the application specific terrestrial and wireless last mile broadband providers that have expressed written interest in interconnecting and demonstrated sustainable business plans or adequate funding;
  • identified supplemental investments or in-kind support (such as waived franchise or permitting fees) that will accelerate the completion of the planned project; and
  • demonstrated that the middle mile infrastructure will benefit national security interests of the United States and the Department of Defense.

Connections to Anchor Institutions. To the extent feasible, an entity that receives a middle mile grant “using fiber optic technology” must ensure the network is capable of providing 1Gbps service to anchor institutions and must offer direct interconnection to anchor institutions located within 1,000 feet of the middle mile facilities.

Interconnection and Nondiscrimination. Middle mile grant recipients that use fiber optic technology must also “offer interconnection in perpetuity, where technically feasible, without exceeding current or reasonably anticipated capacity limitations, on reasonable rates and terms to be negotiated with requesting parties.” The nature of the interconnection must include the ability to connect to the public Internet, as well as physical interconnection for the exchange of traffic.

Determining Need and Expending Funds. Funds should be spent to provide service to unserved and underserved areas and facilitate broadband resiliency and redundancy. In determining whether a particular area is unserved or underserved, the applicant should rely on recent broadband mapping data from: (i) the FCC fixed broadband map; (ii) the State in which the area to be served by the middle mile infrastructure is located; or, (iii) speed and usage surveys of existing broadband service conducted by an eligible entity and demonstrating that more than 25% of respondents display a broadband service speed slower than speeds required for an area to qualify as unserved. It is likely that NTIA’s final rules will permit funds awarded under this program to be used for a host of projects, including laying fiber to expand and extend existing networks, leasing dark fiber, connecting data centers, building wireless microwave backhaul infrastructure and other similar projects.

Matching Funds and Timeline. The amount of a middle mile grant awarded to an eligible entity may not exceed 70% of the total project cost. This is where critical infrastructure companies can contribute to a successful application by providing in-kind assets, including rights-of-way, existing fiber capacity, tower space and radio equipment infrastructure to support the middle mile project. The contribution of existing infrastructure also will help the applicant meet statutory deadlines. A winning applicant must complete its buildout of the middle mile infrastructure within five years of the date the grant is made available.

Notably, unlike the BEAD Program and other broadband-related programs established under the Act, the statute does not task NTIA with promulgating rules or issuing a Notice of Funding Opportunity for the middle mile program within a particular timeframe. While it would seem logical to do so, whether NTIA will attempt to stand up the middle-mile program in a similar timeframe as the BEAD last-mile broadband program is unknown.

As always, if you require additional information or would like to discuss any aspect of the above, please reach out to any of the attorneys in the KH Telecommunications Practice Group. We also welcome your feedback and questions via KHBroadband@khlaw.com.

***Next up in the blog series:  Focusing on Partnerships***

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Part 1 of the Keller and Heckman Infrastructure Act Blog Series

(Coming up next:  The Middle Mile Program)

Among the $65 billion allocated to broadband in the Infrastructure Investment and Jobs Act (“the Act”), $42.45 billion will be used to fund a last-mile broadband development grant program administered by the National Telecommunications and Information Administration (“NTIA”). As noted in our introduction to this blog series, the scale of this investment is unlike anything seen before in US history.

This blog entry begins with a quick review of the basics of the BEAD Program. We then turn to a few discrete topics that may be of particular interest at this early stage, including (1) the central role of the States, (2) the matching requirement, (3) the challenge process, and (4) the broadband DATA map.

1. The Basics

The following is a non-exhaustive, high-level overview of the BEAD Program’s scope and requirements. A more detailed review may be found in our previous blog post on this subject and from a variety of other sources. Note also that NTIA will flesh out the statutory requirements as it develops program rules.

  • $42.45 billion will be available for grants from the federal government (administered by NTIA) to the various States (and the District of Columbia, Puerto Rico, and Territories) — at least $100 million to each. Subgrants may be distributed by States consistent with the Act, and in accordance with a five-year action plan to be developed by the States and approved by NTIA.
  • State subgrants may be used to fund infrastructure:
    • Unserved service projects (80% of locations in the proposal area lack access to reliable 25Mbps/3Mbps)
    • Underserved service projects (80% of locations in the proposal area lack access to reliable 100Mbps/20Mbps service)
    • Community anchor institutions (“CAIs”), such as schools, libraries, and hospitals, lacking access to 1Gbps service
  • Infrastructure funding prioritization: A State “must award funding in a manner that prioritizes unserved service projects.” After certifying to NTIA that it “will ensure coverage” to “all unserved locations” in the State, the State must prioritize underserved service projects. After “prioritizing underserved service projects,” the State may fund eligible CAIs.
  • Projects must provide at least 100Mbps/20Mbps service to be eligible for funding.
  • State subgrant programs cannot exclude “cooperatives, nonprofit organizations, public-private partnerships, private companies, public or private utilities, public utility districts, or local governments.”
  • Entities that have received other federal, state, or local government broadband funding (RDOF, etc.) may receive subgrants under BEAD.
  • In addition to broadband infrastructure, States may use BEAD grants for data collection, broadband mapping, installing Internet infrastructure or providing reduced-cost broadband within a qualifying low-income multifamily residential building, broadband adoption (including provision of devices), and additional uses determined necessary by NTIA.
  • Timing: NTIA has 180 days from the enactment of the Act to issue a Notice of Funding Opportunity (“NOFO”) directed to the States. Assuming President Biden signs the legislation on November 15 as expected, this means the NOFO will likely be published in the May 2022 timeframe. Several layers of State submissions and NTIA processing will follow before funding will be made available to subgrantees, including submission and evaluation of State five-year plans. The process is also dependent on broadband DATA maps being published (as discussed further below). While the Biden Administration may hope to expedite the process for purposes of the 2022 mid-terms, we expect funding will not be awarded to subgrantees and begin flowing until sometime in 2023.

With that general backdrop, we shift focus to several topics that may be of particular interest in the formative stages of the program.

2. Focus on the States

The BEAD Program places the States at the center of the entire program. While NTIA will set the rules and administer the issuance of federal funds to the States, each State will generate a five-year plan, will identify its particular statewide needs, and will ultimately decide where and to whom the funds are directed.

Some States will be better positioned to perform these tasks than others. According to the Fiber Broadband Association, only 26 states currently have formal broadband offices. Others have multi-agency task forces. About 40 have broadband programs of some sort. While we have little doubt that each State will ultimately have the administrative means to participate in the program, the depth, capabilities, and priorities of each State could vary widely.

In any event, the main point of reference over the next year or so for prospective applicants/subgrantees will be upon the policy decisions and rules established by their particular State, rather than the federal government. Under the Act, a State is required to solicit input from eligible entities – including local governments, cooperatives, utilities, partnerships, etc. – as it develops its five-year plan and subgrant program. States must also provide to NTIA a “description of coordination with local governments, along with local and regional broadband planning processes.”

This planning exercise is no small feat, and time is (relatively) short if a State intends to respond promptly to the NTIA NOFO and subsequent filing requirements.

So, for those desiring a voice in how their State uses its portion of the $42 billion in broadband development funds, opportunities should emerge in the very near future. As a preliminary matter, BEAD Program participants should become acquainted with their State broadband coordination office.

3. The Matching Requirement

The BEAD Program requires a 25 percent match (a “non-Federal contribution”) for awarded projects, which may be provided by the State or the subgrantee. (Note, though, that the matching requirement does not apply to projects in high-cost areas, which may encompass a significant proportion of BEAD-funded initiatives.) The match may come from a unit of local government, a utility company, a cooperative, a nonprofit organization, a for-profit company, regional planning or governmental organization, a Federal regional commission or authority, or any combination thereof. This matching requirement is interesting in several respects.

First, like most other federal grant programs (including previous broadband grant programs), the BEAD program generally prohibits the use of federal funds – such as grant funds from other sources – as a component of the match. However, the BEAD program specifically permits the use of federal matching funds if they were provided to a State or subgrantee under any of the several recent COVID-19 relief statutes (including the CARES Act, the Consolidated Appropriations Act of 2021, and the American Rescue Plan Act of 2021 (“ARPA”)). There is no restriction on the type of entity that may provide the match.

Meanwhile, many local and state governments have significant unused funds issued under those Acts, particularly State and Local Fiscal Recovery Funds provided under ARPA. Subject to statutory requirements that funds must be spent by a certain date, a forward-thinking local or State government should consider whether it makes sense to hold some of those funds to put toward a potential match as part of a BEAD Program application. More broadly, the provision of matching funds by a local government could prove to be an important component of a public-private partnership, or of a consortium application.

In addition, it is also worth noting that the Act specifically permits the match to be in the form of an in-kind contribution, for which local governments and utilities of all types could be well-suited to contribute access to rights of way and/or infrastructure such as poles, ducts, and conduits.

4. The Challenge Process

Recent broadband support programs at the federal and state levels have generally included a method by which an incumbent service provider (or others) can object to a particular application on the ground that effective service already exists in the area. From the policymaker perspective, the general idea is that government funds should be directed to where they are needed most and, rightly or wrongly, that federal funds should not support the development of competitive broadband service.

The BEAD Program is no different, except that it leaves the process and the decision entirely up to the States, with only vague guidance as to the method or criteria. The Act provides only that a State “shall ensure a transparent, evidence-based, and expeditious challenge process” under which a challenge can object to the State’s determination that a particular location is eligible for grant funds, “including whether a particular location is served or unserved.”

In short, the BEAD Program challenge process apparently will not occur in response to a particular subgrantee application. Challenges will happen at the State level, and the statute requires that they be resolved before the State allocates funds to subgrantees. (One caveat: the Act enables NTIA to modify the challenge process “as necessary.”)

This process emphasizes the importance of the new national broadband mapping effort. Ideally, the new mapping information will be sufficiently detailed and reliable so that such challenges are uncommon, and for those that do arise, easily resolved.

5. Broadband DATA Maps

Among the various statutory requirements that must be met before NTIA is permitted to approve distribution of BEAD Program funds is the publication of “broadband DATA maps.” This refers to the improved federal broadband mapping initiative commenced under the 2020 Broadband DATA Act, under which the Federal Communications Commission “is required to establish the Broadband Serviceable Location Fabric (a dataset of geocoded information for all broadband service locations, atop which broadband maps are overlaid) as the vehicle for reporting broadband service availability data.”[1]

The implementation of this next-generation broadband map has been challenging so far, as indicated in this September 2021 report from the GAO, and the timing of publication is unclear.

As always, if you require additional information or would like to discuss any aspect of the above, please reach out to any of the attorneys in the KH Telecommunications Practice Group. We also welcome your feedback and questions via KHBroadband@khlaw.com.

***Next up in the blog series:  The Middle Mile Program***

(To receive alerts when new blogs are published, please subscribe to the Beyond Telecom Law Blog by entering your email where indicated on the right side of this page, or subscribe to the KH Broadband Digest (an email compendium of broadband news delivered every couple of days)).

[1] Congress.gov, Summary of S.1822 – 116th Congress (2019-2020) (https://www.congress.gov/bill/116th-congress/senate-bill/1822)

As readers of our Beyond Telecom Law Blog know by now, Congress has just passed the largest broadband infrastructure funding package in US history. After a contentious few months in which its prospects were very much in question, the Infrastructure Investment and Jobs Act (H.R.3684) (the Act) is now heading to President Biden’s desk.

For broadband service providers, broadband users, and broadband advocates of all stripes, it is difficult to overstate the magnitude of this funding infusion and its potential impact in the coming years. The broadband infrastructure grant program alone – with $42.45 billion appropriated – dwarfs all previous US broadband grant programs combined. Approximately $23 billion of additional funding is dedicated to a wide variety of other purposes, including multiple digital equity and broadband affordability initiatives, middle mile investment, and broadband mapping.

Over the coming days, the Telecommunications Practice Group at Keller and Heckman will publish a series of blog posts analyzing various aspects of the Act in depth. Earlier this summer, we published an analysis of the legislation (then in draft form) in which we outlined some of the key broadband provisions, the general mechanics of the programs, and the key timeframes. These points are of course crucial, and our blog series will endeavor to provide at least a high-level understanding of the key provisions in the Act.

Our primary objective, however, will be to provide useful analysis enabling readers to prepare for and take maximum advantage of the opportunity, in addition to highlighting some of the challenges that may complicate this watershed moment. It is our hope that this information will prove useful to current broadband service providers, as well as new initiatives involving local and state government entities, cooperatives, public private partnerships, power utilities, energy companies, and private sector providers.

We currently intend to publish analyses addressing the following topics:

  • Broadband Infrastructure Grants for States (The Broadband Equity, Access & Deployment Program)
  • Middle Mile Funding
  • Focus on Partnerships
  • Cybersecurity
  • The Digital Equity Act and Broadband Affordability Provisions
  • How to Prepare

Finally, we invite your questions and feedback. If a given issue or angle is of particular interest, please feel free to let us know by sending an email to KHBroadband@khlaw.com.

(To receive alerts when new blogs are published, please subscribe to the Beyond Telecom Law Blog by entering your email where indicated on the right side of this page, or subscribe to the KH Broadband Digest (a compendium of broadband news delivered periodically via email)).

Photo of Wesley K. Wright

Last week, the National Association of State 911 Administrators (NASNA) filed a Petition for Rulemaking; Alternatively, Petition for Notice of Inquiry (Petition) with the Federal Communications Commission (FCC or Commission) asking the Commission to take a more active role in regulating Next Generation 911 (NG911) deployments throughout the country.

In particular, the Petition asks the Commission to update its rules to:

  1. establish authority over origination service providers (OSPs) delivery of 911 services through IP-based emergency services networks (ESInets);
  2. amend its rules to advance the transition to – and implementation of – NG911 services; and
  3. require OSPs to bear the cost of delivering NG911 calls, unless the state has an alternative cost-recovery mechanism.

NASNA’s Requests

NASNA’s first request is the easiest to digest: it urges the Commission to establish authority over the delivery of 911 services through ESInets by OSPs (e.g., wireless, landline, interconnected VoIP). This request is closely tied to NASNA’s second request, which asks the Commission to amend Section 9.4 and Section 9.5 of its rules to provide clarity and establish deadlines around the ongoing NG911 transition.

Section 9.4 of the FCC’s rules requires OSPs to transmit all calls to a Public Safety Answering Point (PSAP) or other appropriate emergency authority. The Petition asks the FCC to expand this obligation to require these calls be transmitted in an NG911 format using NG911 protocols.

Section 9.5 provides deadlines that have long since passed (e.g., 2001 and 2002) by which OSPs must deliver 911 calls to designated answering points. The Petition asks the Commission to update this rule and provide future deadlines by which OSPs must deliver 911 calls with standardized NG911 components (e.g., in SIP format, with location information attached to the SIP header, and using compatible location information). These deadlines would be dictated at the state and local level.

The Petition asks the FCC to establish an NG911 Readiness Registry. The deadline for an OSP to transmit calls in an NG911-compliant format would follow the appropriate 911 authority submitting its NG911 Readiness Certification. This idea mirrors the FCC’s text-to-911 rules, which require carriers to deliver text messages to PSAPs within six months of the PSAP certifying it is capable of receiving texts. A database of public safety answering points (PSAPs) capable of receiving texts is available on the Commission’s website.

NASNA’s final request may prove to be the most contentious because it deals with NG911 deployment costs. NASNA argues that allocating costs among the parties is essential to efficiently recognize the full benefits of an end-to-end NG911 call delivery system. A regulatory framework that allocates costs would provide state and local governments with budgetary certainty and expedite these deployments by minimizing cost allocation negotiations between the parties.

The Commission has established a cost allocation demarcation point in the past, but for a limited subset of wireless Enhanced 911 (E911) deployments as part of the agency’s 2001 King County Letter NASNA asks the FCC to take the same approach in a broader, NG911 manner. Under NASNA’s proposal, the Commission’s cost allocation demarcation point would act as a floor – much like the Commission’s rules implementing Kari’s Law – and would govern in the absence of stricter state law.

Conclusion

If you view the FCC’s rulemaking process as a marathon, this Petition represents the starting line. The Commission must now review NASNA’s request and determine whether to:

  1. do nothing;
  2. seek comment on the Petition, as filed;
  3. draft and issue a Notice of Inquiry (NOI) that would gather information about NASNA’s proposal; or
  4. propose rule changes that would be subject to public input and debate before being adopted.

It is an important decision because the Commission’s next step will shape future NG911 deployments for decades. For a more thorough discussion of the Petition, sign up for a seminar through the Federal Communications Bar Association on November 4, 2021 from 3:00 – 5:00 PM (EST).

Photo of Wesley K. Wright

Last week, the Federal Communications Commission (FCC) entered into Consent Decrees with eight Covered 911 Service Providers for failing to timely file their required 911 reliability certification in 2020.

 

The Rules

As background, the FCC adopted rules in 2013 aimed at improving 911 network reliability. The rules require Covered 911 Service Providers (“Providers”) to take certain measures to provide reliable 911 service. The specific measures adopted by the agency attempt to address three network vulnerabilities identified by the FCC in the aftermath of the derecho storm that knocked out 911 service along the east coast in 2012.

The rules require Providers to promote reliable 911 service with respect to three network elements: circuit auditing, central-office backup power, and diverse network monitoring. Providers must certify annually that they have met the FCC’s safe harbor provisions for each of those elements, have taken reasonable alternative measures in lieu of those safe harbor protections, or that a specific element of the rules does not apply to the Provider’s network. The rules also require Providers to notify public-safety answering points (PSAPs) of any outage that impacts 911 service.

Providers subject to these rules include entities that provide 911, E911, or NG911 capabilities such as call routing, automatic location information (ALI), automatic number identification (ANI), or the functional equivalent of those capabilities, to a PSAP.

The FCC released a Public Notice a few years ago seeking comment on the efficacy of these rules and soliciting input on whether those rules need to be revised, though the rules have yet to be updated as part of this process.

Consent Decrees

Last week, the FCC announced that it had entered into Consent Decrees with eight Providers that had filed 911 reliability certifications in prior years but had neglected to do so in 2019, 2020, or both. A Consent Decree is a voluntary settlement between the Provider and the FCC. 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.

In this instance, the Compliance Plan element of the Consent Decree may prove more onerous than the fine. In general, the Compliance Plans agreed to by these Providers have several burdensome components, including:

  • Compliance Officer – Designate a senior corporate manager to serve as the Compliance Officer.
  • Operating Procedures – Establish operating procedures that all covered employees follow to ensure compliance with the FCC’s 911 rules.
  • Compliance Manual – Develop and distribute a compliance manual to all covered employees.
  • Compliance Training Program – Establish and implement a compliance training program and train all covered employees on the FCC’s 911 rules.
  • Report Noncompliance – Report any noncompliance within 15 days of discovering such noncompliance.
  • Compliance Report – File periodic compliance reports with the FCC providing a detailed description of the steps the company has taken to promote compliance with the FCC’s 911 rules.

Conclusion

It is never good to be in the crosshairs of the FCC’s Enforcement Bureau. And these Consent Decrees are just the most recent example of the Commission’s prioritization of public safety issues.

For more information, please contact Wes Wright (wright@khlaw.com; +1 202.434.4239).

Photo of Wesley K. WrightPhoto of Kathleen Slattery Thompson

Last week, the House Energy & Commerce Committee released its portion of the Budget Reconciliation Act.  This includes a $10 billion appropriation for Next Generation 911 (NG911) grant programs.

A summary of the appropriation is below.

The proposed Section appropriates $10 billion for:

  • Implementing NG911;
  • Operating and maintaining NG911;
  • Training directly related to implementing, maintaining, and operating NG911 (if the cost does not exceed 3% of the total grant award);
  • Planning and implementation activities (if the cost does not exceed 1% of the total grant award); and,
  • Administrative Expenses associated with implementation of this Section (up to 2% of the total amount appropriated).

For an entity to be eligible to participate, it must comply with the following requirements:

  • The entity must not engage in 911 fee diversion (obligations and expenditures must be “acceptable” as determined by FCC Rules and Federal Law);
  • The entity must use funds to support the deployment of NG911 in a manner that ensures reliability, interoperability, and requires the use of commonly accepted standards; and,
  • No later than three years after funds are distributed, the entity must establish or commit to establish a sustainable funding mechanism for NG911 and effective cybersecurity resources.

There are additional requirements for State and Tribal Organizations, including:

  • The entity must designate a point of contact to coordinate the implementation of NG911; and,
  • The entity’s plan for NG911 must meet minimum standards for interoperability, reliability, data processing and storage, and cybersecurity, among other requirements.

In addition to the $10 billion, the proposed Section also appropriates:

  • $80 million to establish the Next Generation 9-1-1 Cybersecurity Center to coordinate with State, local, and regional governments to share cybersecurity information, analyze cybersecurity threats, and share guidelines and best practices for intrusion detection and prevention as it relates to NG911
  • $20 million to establish a 16-member Public Safety Next Generation 9-1-1 Advisory Board to make recommendations to the Assistant Secretary (NTIA) with respect to NG911, including administering the grant program.

Several hurdles remain to be cleared, but this is a positive development for NG911 funding nationwide.  Please contact Wes Wright (wright@khlaw.com; 202.434.4239) or Kathleen Slattery Thompson (slattery@khlaw.com; 202.434.4244) with questions.

Photo of Casey Lide

On Wednesday, July 28, the U.S. Senate voted to move forward on a bipartisan infrastructure bill (the “Infrastructure Investment and Jobs Act”) that includes $65 billion to support broadband deployment and adoption.  While a variety of procedural and political hurdles remain, we are cautiously optimistic about its prospects for enactment.

This blog entry highlights some of the key broadband-related provisions in the bill, derived from a draft copy of the bill that we obtained several days ago.  The bill was publicly released on Sunday, August 1, and is available here.

This summary is based upon legislation that has not yet passed either the Senate or the House. It will almost certainly change prior to adoption, perhaps in significant ways.  Even so, the draft bill provides a clear indication of how this once-in-a-generation investment in broadband infrastructure and adoption could play out.

We intend to provide a much more detailed analysis if and when the bill is enacted, likely over the course of several blog entries. For now, the key aspects of the broadband provisions of the draft bill may be summarized as follows.  (The remainder of this post discusses each in greater detail):

  • “Broadband Equity, Access and Deployment Program” ($42 billion): The centerpiece of the overall broadband investment, this massive program contemplates grants being made to States.  Significant local coordination would be required.  States would use grant funds to competitively award subgrants for qualifying broadband infrastructure, mapping, and adoption projects. It would be administered by NTIA.
  • “Enabling Middle Mile Broadband Infrastructure” ($1 billion): Directs NTIA to make available grants for “construction, improvement or acquisition of middle mile infrastructure.”
  • “Digital Equity Act of 2021” ($1.3 billion): Funds State-level digital equity planning and establishes a competitive digital equity grant program available to a wide range of public-sector and not-for-profit entities.
  • “Broadband Affordability”: The bill includes several initiatives relating to affordable broadband:
    • Extension and modification of the existing Emergency Broadband Benefit program, (including renaming it as the “Affordable Connectivity Program”);
    • Adoption of a “consumer broadband label” requirement, originally put forth by the FCC in 2016;
    • Digital discrimination. The bill would require the FCC to adopt rules within two years to address digital discrimination (i.e., redlining).
  1. BROADBAND EQUITY, ACCESS AND DEPLOYMENT PROGRAM (TITLE I, Section 801102) ($42 billion grant program, NTIA)

The centerpiece of the overall broadband funding initiative, the “Broadband Equity, Access and Deployment Program” tasks NTIA to administer a $40 billion grant program for which “eligible entity” is defined as “a State.”[1]  It directs NTIA to issue a Notice of Funding Opportunity within 180 days after the bill is enacted, establishing a process for States to submit a letter of intent, a single initial proposal, and a single final proposal for funding.

Funding Allocation.  Each State would receive a minimum of $100 million.  The remainder of the $40 billion would be allocated in accordance with a formula that considers the number of unserved and high-cost locations in the State, as compared to other States.  Twenty percent of the allocated amount would be released upon approval of the State’s initial proposal, with the remaining 80 percent released upon approval of the State’s final proposal.  Sec. (e)(3), (4). Funding is available to States for planning and administrative expenses. Sec. (e)(1)(C).

If a State fails to submit an application for funds by the applicable deadline, a political subdivision or consortium of political subdivisions may submit an application in its place.  Sec. (c)(5)(B).

Local Coordination Requirements.  The bill calls for significant local coordination on the part of the State.  A State must submit a “5-year action plan” as part of its initial proposal, which “shall be informed by collaboration with local and regional entities.”  Sec. (e)(1)(D).

An initial proposal must, among other things, “identif[y], and outline[] steps to support, local and regional broadband planning processes or ongoing efforts to deploy broadband or close the digital divide” and “describe[] coordination with local governments, along with local and regional broadband planning processes.”  Sec. (e)(3)(A).  In addition, NTIA “shall establish local coordination requirements for eligible entities to follow, to the greatest extent practicable.”  Sec. (e)(3)(A)(ii).  States must allow an opportunity for political subdivisions to submit plans for consideration by the State, and to comment on the State’s initial and final proposals.  Sec. (e)(4)(A).

In awarding subgrants, States “may not exclude cooperatives, nonprofit organizations, public-private partnerships, private companies, public or private utilities, public utility districts, or local governments from eligibility for such grant funds.”  Sec. (h)(1)(A).

Use of Funds. (Sec. (f)) A State may use grant funds “to competitively award subgrants” for:

  • Unserved service projects and underserved service projects.
    1. An “unserved location” lacks access to reliable broadband service offered with speed of not less than 25Mpbs/3Mbps. “Unserved service projects” are projects serving areas in which not less than 80% of locations are unserved. (a).
    2. An “underserved location” lacks access to reliable broadband service offered with speed of not less than 100Mbps/25Mbps. “Underserved service projects” serve areas in which not less than 80% of locations are underserved. (a).
  • Connecting eligible community anchor institutions. An “eligible” community anchor institution is defined as one that lacks access to gigabit service.   (a)(E).
    1. Notably, the definition of “community anchor institution” includes “public housing organization or community support organization….” (a)(E).  This suggests that support could be available for some urban areas that lack gigabit connectivity.
  • Data collection, broadband mapping, and planning;
  • Installing broadband infrastructure or providing reduced-cost service within a multi-family residential building, with priority given to a building that “has a substantial share” of unserved households or that is in a designated poverty area; and
  • Broadband adoption, including programs to provide affordable devices.

Funding Prioritization.  Subgrant awards are to be funded in accordance with the following prioritization (Sec. (h)(1)):

  • Unserved service projects;
  • Underserved service projects (after the State certifies that it will ensure universal coverage of all unserved locations); and
  • Eligible community anchor institutions (after prioritizing underserved service projects).

As another element of prioritization, a State “shall give priority to projects based on” deployment of a broadband network to persistent poverty counties or high-poverty areas; the speeds of the proposed broadband service; and the expediency of project completion. Sec. (h)(1).

Broadband Service Standards.  A subgrantee for the deployment of a broadband network must provide broadband service at a speed of not less than 100Mbps/20Mbps, with sufficiently low latency “to allow reasonably foreseeable, real-time, interactive applications.”  Sec. (h)(4).

Funded broadband networks must offer at least one low-cost broadband service option for eligible subscribers (as described in Sec. (h)(5)).

The network must be deployed and service commenced no later than four years after the date of the subgrant.  Sec. (h).

Subgrants.  The program authorizes a State to only use grant funds to competitively award subgrants involving a permitted use of the funds (in addition to planning and administrative expenses).  States are directed to ensure that subgrantees have the financial, managerial, technical and operational capability to carry out the activities contemplated in the subgrant.  Sec. (g)(2)(A).  Subgrantees must also comply with various obligations, including quality-of-service and broadband reliability and resilience “best practices,” as defined by NTIA.  Sec. (g).

Matching Requirement.  A State must provide, or must require a subgrantee to provide, a matching contribution equivalent to at least 25 percent of project costs, Sec. (h)(3).  NTIA may waive the matching contribution requirement and the match requirement does not apply in high-cost areas.

In general, the match must be derived from non-Federal funds.  However, the Act specifically provides that matching funds may come from a Federal regional commission or authority, as well as the CARES Act, the Consolidated Appropriations Act of 2021, or the American Rescue Plan Act of 2021, if the funds were for the purpose of deployment of broadband service.  Sec. (h)(3)(B)(iii).

The match “may include in-kind contributions.”  Sec. (h)(3)(B)(ii).

Relation to Other Public Funding. The Act explicitly allows a subgrant to be made to “an entity that has received amounts from the Federal Government or a State or local government for the purpose of expanding access to broadband service.”  Sec. (k).  Grant funds made available to States must “supplement, and not supplant,” amounts that the State would otherwise make available for broadband purposes.  Sec. (l).

Report on Future of Universal Service Fund (Sec. 801104).  Title I of the Act also directs the FCC to commence a proceeding within 30 days, and provide a report within 270 days, evaluating the implications of the Act on how the FCC “should achieve universal service goals for broadband.”  Sec. 004.  Notably, the term “universal service fund” is not used in Section 004 other than in the section title.

  1. ENABLING MIDDLE MILE BROADBAND INFRASTRUCTURE (TITLE IV, Sec. 80401 et seq.) ($1 billion for fiscal years 2022 through 2026, NTIA)

Title IV of the bill would establish a much smaller grant program to support the development of middle-mile infrastructure.  The bill directs NTIA to make grants available “on a technology-neutral, competitive basis to eligible entities for the construction, improvement, or acquisition of middle mile infrastructure.” Sec. (b).

The program has two stated purposes (Sec. (b)):

  • “to encourage expansion of middle mile infrastructure to reduce the cost of connecting unserved and underserved areas to the backbone of the internet (commonly referred to as the ‘last mile’) and
  • “to promote broadband connection resiliency through the creation of alternative network connection paths that can be designed to prevent single points of failure on a broadband network.”

“Middle Mile Infrastructure.”  The term “middle mile infrastructure” (Sec. (a)):

  • “means any broadband infrastructure that does not connect directly to an end-user location, including an anchor institution; and
  • includes –
  • leased dark fiber, interoffice transport, backhaul, carrier-neutral internet exchange facilities, carrier-neutral submarine cable landing stations, undersea cables, transport connectivity to data centers, special access transport, and other similar services; and
  • wired or private wireless infrastructure, including microwave capacity, radio tower access, and other services or infrastructure for a private wireless broadband network, such as towers, fiber, and microwave links.”

Eligible Entities.  For the middle mile grant program, an “eligible entity” includes “a State, political subdivision of a State, Tribal government, technology company, electric utility, utility cooperative, public utility district, telecommunications company, telecommunications cooperative, nonprofit foundation, nonprofit corporation, nonprofit institution, nonprofit association, regional planning counsel [sic], Native entity, or economic development authority”; or a partnership of two or more such entities.  Sec. (a)(4).

Prioritization.  An eligible entity must agree to prioritize (A) “connecting middle mile infrastructure to last mile infrastructure that provide or plan to provide broadband service to households in unserved areas; (B) connecting non-contiguous trust lands, or [sic] (C) the offering of wholesale broadband service at reasonable rates on a carrier neutral basis.” Sec. (e)(1).

Buildout must be completed within five years, although an extension may be available.  Sec. (e)(2).

Interconnection and Nondiscrimination Requirement.  An entity that receives a middle mile grant using fiber optic technology “shall offer interconnection in perpetuity, where technically feasible without exceeding current or reasonably anticipated capacity limitations, on reasonable rates and terms to be negotiated with requesting parties.”  Sec. (e)(3)(D).

Federal Share Limited to 70 Percent.  The amount of a middle mile grant may not exceed 70% of the total project cost.

  1. DIGITAL EQUITY ACT OF 2021 (Title III, Sec. 80301 et seq.)($1.3 billion over five years)

On the adoption side, the legislation includes the “Digital Equity Act of 2021.”  The Digital Equity Act creates a “State Digital Equity Capacity Grant Program” and a “Digital Equity Competitive Grant Program.”

The State Digital Equity Capacity Grant Program authorizes $60 million for planning grants to be made available to States for the development of State Digital Equity Plans, and $650 million over five years for grants to States to support the implementation of State Digital Equity Plans and digital inclusion activities.

The Digital Equity Competitive Grant Program makes available $650 million over five years for grants to a wide variety of public-sector and not-for-profit entities.  Sec. (b).  Funds may be used for a range of digital inclusion and broadband adoption activities.  Sec. (d)(2).

  1. BROADBAND AFFORDABILITY (TITLE V, Sec. 80501 et seq.)

Extension and Modification of Emergency Broadband Benefit (Sec. 80502).  Title V of the bill would indefinitely extend the Emergency Broadband Benefit Program, originally adopted as a COVID-relief measure.  It renames the program the “Affordable Connectivity Program,” and implements a variety of other changes.

Adoption of Consumer Broadband Labels (Sec. 80504).  The legislation would require the display of “consumer broadband labels,” as described by the FCC in April 2016.  Sec. 004.

Digital Discrimination (Sec. 80506) The bill includes a brief provision relating to “digital discrimination” (i.e., “redlining”).  It requires the FCC to adopt rules within two years “to facilitate equal access to broadband internet access service, taking into account the issues of technical and economic feasibility presented by that objective, including (1) preventing digital discrimination of access based on income level, race, ethnicity, color, religion or national origin and (2) identifying necessary steps for the [FCC] to take to eliminate such discrimination.”  Sec. (b).   It also directs the FCC to develop “model policies and best practices” for States and localities to prevent digital discrimination

[1]   The term “State” is defined with reference to 47 U.S.C. 942, which defines “State” as “any State of the United States, the District of Columbia, Puerto Rico, American Samoa, Guam, the United States Virgin Islands, the Northern Mariana Islands, and any other territory or possession of the United States,” but excludes the phrase “any other territory or possession of the United States.”

Photo of Peter L. de la Cruz

We are witnessing a swing in the antitrust pendulum from minimalist to populist poles. This entry briefly highlights the dynamics, potential changes, and, perhaps more importantly from a counseling perspective, what will change and what will remain the same.

At the minimalist antitrust pole, markets are viewed as self-correcting, i.e., no monopolist or manipulator will last for long and, therefore, government intervention should be limited as enforcement is more likely to harm than help markets. At the populist antitrust pole, we find a distrust of concentrated economic power and how it may be wielded.

We can observe a 40-year cycle in the antitrust pendulum’s swing. The late 1970s marks the rise to the “Chicago School” (markets are self-correcting and consumer price is the key factor). Twenty years later, in the 1990s, the pendulum swung toward the center with a more moderate or broader interpretation of consumer welfare. We are now moving toward the populist pole of the antitrust pendulum, that some call the “New Brandeis” or “Neo-Brandeis” movement, which echoes Justice Brandeis’ concern with economic concentration and abuse of market power.

Of course, the pendulum analogy is an oversimplification, but a helpful one in making sense of the changes in antitrust enforcement. As we see the intertwined evolution of consumer preferences and technology (broadly defined to include transportation, logistics, manufacturing, and services), markets and commercial relationships will change. That, in turn, results in varying degrees of societal disruption and shifting economic power.

Federal Legislation: There are several bills in Congress that propose a variety of changes to the antitrust laws, mainly focused on tech giants, including Amazon, Google, etc. The prospects for Federal legislation range from maybe to unlikely, but there is considerable effort afoot with Hill hearings and Committee reports. Proposed remedies range from forced divestitures (remember AT&T and the Baby Bells?) to limits on future acquisitions by dominant firms, etc.

State Legislation: Proposed state legislation is instructive and more likely to be enacted. For example, New York’s “Twenty-First Century Anti-Trust Act” passed the New York Senate on June 7. The bill does not view big business as neutral or benevolent, but rather reflects a concern with unilateral action. Senate Bill 933 adopts an EU antitrust approach that makes “abuse of a dominant position” illegal. Under that approach, there is no need to demonstrate monopoly power, with dominance having a lower burden of proof.

Litigation: In antitrust litigation, it is mistakenly assumed that market power must be proven through an econometric analysis by antitrust economists defining the product or service market and the defendant’s market power as an essential foundation to any claim of injury to competition. But market power may also be demonstrated through evidence showing that a defendant charged supra-competitive prices. This type of evidence is considered direct proof of market power, that is, the ability to raise prices above competitive levels. See FTC v. Indiana Fed’n of Dentists, 476 U.S.447, 460-61 (1986); Rebel Oil Company Inc. v. Atlantic Richfield Company, 51 F.3d 1421 (9th Cir. 1995). But judges, lawyers, and antitrust economists are so anchored to the economic analysis approach that the ‘mere’ proof of anticompetitive power is often deemed inadequate to establish an antitrust claim. Similarly, while monopsony (monopoly buyer power) has always been actionable, claims of monopsony are greeted with skepticism. Much of the New York bill reflects an effort to correct the gap between existing law and how the law is commonly understood and enforced.

Implications: If legislation is enacted, it may encourage government challenges against mergers, acquisitions, and abuse of a company’s dominant position. This, in turn, may create a litigation environment where disgruntled or disadvantage competitors are more likely to challenge the dominant firm’s business practices.

As astute readers have already deduced, these changes in antitrust analysis address how competition laws apply to actions by a single company or mergers among companies. The law regarding anticompetitive joint action, such as price fixing and bid-rigging will remain the same, but the environment surrounding the populist pole of antitrust tends to similarly increase scrutiny of joint action as illegal ‘combinations in restraint of trade.’ See the U.S. Dept. of Justice & Fed. Trade Comm’n, Antitrust Guidelines for Collaborations Among Competitors (April 2000).

Photo of Wesley K. WrightPhoto of Jason P. Chun

At its Open Meeting on April 22, the FCC adopted a Third Notice of Proposed Rulemaking seeking comment on proposed rules changes to 911 outage reporting. The proposed rules aim to help 911 call centers maintain emergency services and inform the public when to use alternatives to calling 911.

Customer Notification

One of the biggest proposed change is an obligation for Covered 911 Service Providers (“C9SP”) to notify “potentially affected customers,” of a 911 outage “as soon as possible, but no later than within 60 minutes of discovering that 911 is unavailable.”  The notice should be posted on the main page of the provider’s website and any Internet- or web-based applications and include: (i) a statement that there is an outage affecting 911 availability; (ii) alternative contact information to reach emergency services at the request of the affected PSAP(s), if such information is available; (iii) the time 911 service became unavailable; (iv) the time the affected service provider estimates that 911 service will become available again; and (v) the locations where customers are—or are expected to be—experiencing 911 unavailability.

The Commission seeks a wide range of input on this requirement, such as whether an outage should include instances where text-to-911 is still available when traditional voice calls are not and whether loss of transmission of ALI or ANI prompts public notification. The FCC proposes these notification requirements take effect by June 1, 2022.

PSAP Notification

The proposed rules would also require C9SPs to maintain up-to-date contact information for 911 outage notifications for each 911 special facility served. This must be updated annually.

The information provided to these contacts would also expand under the proposed rules, though it would be limited to available information. The proposed rule change mentions: (i) the name of the C9SP notifying the PSAP; (ii) the name of the provider(s) experiencing the outage; (iii) the date and time when the incident began; (iv) the types of communications service(s) affected; (v) the geographic area affected by the outage; (vi) expectations for how the outage might affect the 911 special facility (ex: dropped calls, missing metadata); (vii) the expected date and time of restoration; (viii) the best-known cause of the outage; (ix) the name, phone number, and email address at which the C9SP can be reached for follow-up; and (x) a statement as to whether the communication is the initial notification, an update, or the final outage assessment.

The FCC also asks what safeguards should be in place to protect this sensitive information from public disclosure. The FCC proposes that these notification requirements take effect by April 1, 2022.

Reliability Certification Changes

The FCC also proposed some changes to the 911 reliability certification. Specifically, the FCC seeks comment on whether less frequent reliability certifications should be required of C9SPs (ex: requiring C9SPs to submit reliability certifications every other year while requiring C9SPs to submit certifications if they have performed a “material network change”). The Commission also proposes requiring C9SPs that cease being a C9SP to notify the FCC via an affidavit during the time period that the reliability certification portal is open. Finally, the FCC notes that the reliability certification portal is open form July 30 – October 15 and asks if this is an adequate duration for providers.

Photo of Casey Lide

President Biden has now signed the American Rescue Plan Act of 2021 (H.R 1319, “Act”) into law. As many are aware, the $1.9 trillion package includes $7.17 billion for an Emergency Connectivity Fund to enable remote learning, for which the FCC is to issue rules within 60 days of the Act’s enactment. This blog entry describes a few other aspects of the Act that present significant opportunities for broadband service providers and their partners, particularly state and local governments.

Coronavirus State and Local Fiscal Recovery Funds

A major component of the Act overall is the relief funding appropriated to state and local governments.   Subtitle M of the Act creates a “Coronavirus State Fiscal Recovery Fund,” providing for payment of $220 billion to states, territories and Tribal governments, and a “Coronavirus Local Fiscal Recovery Fund,” providing $130 billion to local governments (including “metropolitan cities, non-entitlement units of local government, and counties”).[1]

How those funds are to be allocated among the various states and units of local governments is prescribed in detail in the Act. Importantly, while distributed funds may only be used for certain purposes, this is not a grant program where a state or local government must describe and apply for funds to support a particular project. In general, distribution will be of a prescribed amount, and is essentially automatic.

As compared to local government funding provisions under consideration as part of the CARES Act in 2020, the new Act gives states and local governments significant flexibility in how the Fiscal Recovery Fund monies may be spent. For both states and local governments, the funds can be used for a variety of purposes relating to COVID-19 fiscal recovery, including (to paraphrase): (A) to respond to “negative economic impacts” and to aid impacted industries, (B) to provide premium pay and grants to essential workers, and (C) to address budget shortfalls stemming from the pandemic.[2]

Of most interest for our purposes is subsection (D), which states that the Fiscal Recovery Funds may be used “to make necessary investments in water, sewer, or broadband infrastructure.” The Act does not elaborate further.

In short, states and local governments are about to receive a massive infusion of funding. They may conclude that the development of necessary broadband infrastructure is a worthy use of some of that money, particularly if such infrastructure is necessary to support their other COVID-related programs, and under the Act, they would be permitted to do so.

Two other points are also worth noting. Unlike some of the other new programs under the NTIA and FCC, the funds would not need to be expended until December 31, 2024. The Act also specifically allows the funds to be transferred to a private nonprofit organization, or special-purpose unit of state or local government.[3]

Coronavirus Capital Projects Fund

The Act provides $10 billion to states, territories, and Tribal governments (not 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.”[4] The scope of that appropriation plausibly includes broadband-related projects. The Act directs the Treasury Department to establish a grant process to access the funding within 60 days of enactment.

Economic Development Administration (EDA) Appropriation

Section 6001 of the Act provides $3 billion to the Economic Development Administration within the Department of Commerce. Broadband projects in economically distressed communities are eligible for funding under the Public Works and Economic Adjustment Assistance programs.

Homeowners Assistance Fund

The Act appropriates nearly $10 billion for a “Homeowners Assistance Fund” that states can use for payment assistance for “qualified expenses” of households that need help due to COVID-19, including mortgage payment assistance.[5] The fund can be used for “internet service, including broadband internet access service.”  It is to remain available until September 30, 2025.

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[1] Section 9901.

[2] Section 9001 of the Act, adding Sections 602 and 603 of the Social Security Act (42 U.S.C. §  801 et seq.).

[3] Section 9901 of the Act; Sec. 602(c)(3).

[4] Id.; Sec. 604.

[5] Section 3206.