United States: Funding For Broadband Infrastructure Projects: What's Next

Broadband maps and the promise of a boom in broadband infrastructure projects remain a focus of federal, state, and local leaders. Recently, the Federal Communications Commission (FCC) published an updated version of the National Broadband Map, which identifies all locations in the United States where broadband service is or could be available and what broadband service, if any, is available in each of these locations.

What does this mean? The National Broadband Map is the foundation of the Broadband Equity, Access, and Deployment (BEAD) Program created in the Infrastructure Investment and Jobs Act of 2021 (IIJA). Congress allocated more than $42 billion to the BEAD Program with the mandate to deploy broadband service to all unserved and underserved locations in the US. Because the IIJA directs the National Telecommunications and Information Administration (NTIA) to allocate funds based on the National Broadband Map, the FCC's findings will shape how much funding each state (including the territories) will receive under the BEAD Program and how states can award funds for specific broadband projects.

As we explain below, the FCC's publication of the updated version of the National Broadband Plan signals the beginning of an aggressive timeline for funds disbursement and a shift in activity from NTIA and the FCC to the states.

Background

The BEAD Program focuses on funding for last-mile broadband infrastructure projects (i.e., projects that build and upgrade the network infrastructure necessary to deliver service to end users). The program directs funds to projects that provide broadband service to community anchor institutions (e.g., hospitals, libraries, public safety entities) or locations qualifying as unserved (i.e., do not have at least 25/3 Mpbs internet service available) or as underserved (i.e., do not have at least 100/20 Mbps internet service available).

The BEAD Program allocates funds to states, which must develop competitive bidding processes to award funds for specific projects. In contrast with FCC programs such as the Rural Development Opportunity Fund, NTIA does not select specific projects or subgrantees. The states identify their policy priorities and needs in a Five-Year Action Plan, develop competitive selection procedures (which require NTIA's prior approval), and select proposals that comply with the BEAD Programs rules, which NTIA must then approve. NTIA had not allocated funds to states as it waited for the FCC to publish its updated version of the National Broadband Map. With that task completed, NTIA is expected to announce funds allocations to each state by June 26, 2023, an event that would kickstart activity at the state level.

THE NATIONAL BROADBAND MAP

The National Broadband Map includes two critical datasets for the BEAD Program: (1) the specific locations in the United States that have or should have access to broadband service and (2) the type of service (including speeds) currently available in each location. The FCC published the first draft in November 2022, kicking off a lengthy challenge process that allowed stakeholders to dispute or supplement the data. The FCC reportedly processed more than four million challenges and met with representatives of each state at least once. The updated version of the National Broadband Map the FCC published on May 30 shows more than 113 million broadband serviceable locations in the US, of which 8.3 million lack access to high-speed broadband service.

The next step in the BEAD Program timeline is NTIA's announcement of how much funds each state will be allocated. While each state (and Puerto Rico) is guaranteed a minimum allocation of $100 million, they could receive additional funding based on (1) the number of unserved locations in the state as a percentage of unserved locations nationwide and (2) the number of high-cost unserved locations in the state as a percentage of nationwide high-cost unserved locations. NTIA will make these determinations based on the updated version of the National Broadband Maps. NTIA is expected to announce state allocations by June 26, 2023.

NTIA's expected announcement of funds allocations will then shift attention (and the burden) to the states.

• States have 180 days from the notice of funds allocation to submit their Initial Proposals. The proposals must, among other things, describe the competitive process the state will use to select subgrantees, be published for public comments, and incorporate feedback from local stakeholders.

• States then must conduct a challenge process after submitting their Initial Proposals to NTIA but before awarding any funds to subgrantees. The challenge process must allow local government units, nonprofit organizations, and broadband service providers to dispute the state's classification of locations or community anchor institutions as eligible. That includes challenges to whether specific locations are unserved or underserved. NTIA has published proposed guidance indicating it expects states to conclude their challenge processes in 90 days, and it will not allow new locations to be added or removed from the National Broadband Map.

• States will not receive their initial funding—and cannot initiate their competitive selection processes—until NTIA approves the Initial Proposal and they complete their challenge process.

LOOKING AHEAD

• The publication of the updated National Broadband Map is not the end of the process of revising and updating its data. While NTIA will allocate funds based on the version of the Map as of June 30, 2023, NTIA announced it will continue to update the National Broadband Plan as part of what it called an "iterative process." States also are expected to develop their own maps and propose NTIA changes to the locations qualifying as unserved or underserved. That process will be further supplemented by each state's challenge process. These revisions will not impact funds allocations to states and territories. However, this iterative process will impact which locations in each state and territory should qualify for the allocated funding—and that process plainly will be ongoing.

• There are rumblings of frustration among some states with the current challenge process before the FCC and the impact on funds allocations. Michigan, for instance, lost 18% of the unserved locations identified in the first draft of the National Broadband Map. Other states, such as Georgia, have created their own broadband availability map, the data of which continues to be a source of contention in the FCC's mapping results. NTIA's warning that the number of unserved locations on the map may not correlate directly to how much BEAD money a state will receive has only added to the uncertainty. Although neither the IIJA nor the rules adopted by NTIA provide procedures for states to impugn the allocation determinations, it is too early to close the door on that possibility.

• As mentioned earlier, the published update to the National Broadband Map and the NTIA's expected announcements of funds allocations will shift attention to the states. In the next several months, states will be finalizing their Five-Year Action Plans, identifying their policy priorities related to broadband, designing their competitive selection processes to award funds under the BEAD Program, and conducting their own challenges to the classification of locations.

Our posts to follow will identify broadband funding as the process continues. If you are interested in accessing the BEAD Program, now is the time to engage with the state leadership where you are interested in participating.

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