On November 15, 2021, the Infrastructure Investment and Jobs Act (“IIJA”) became law, authorizing $65 billion in federal broadband investments with the goal of connecting all Americans to reliable, high speed, and affordable broadband.  The IIJA directed the National Telecommunications and Information Administration (“NTIA”) to oversee the distribution of $48.2 billion in infrastructure grants to states, Tribal governments, and companies through four programs: the Broadband Equity, Access, and Deployment (“BEAD”) Program ($42.45 billion), Tribal Broadband Connectivity Program ($2 billion), Digital Equity Act Programs ($2.75 billion), and Enabling Middle Mile Broadband Infrastructure Program ($1 billion).

NTIA has already held two of its five planned virtual listening sessions designed to solicit information from interested stakeholders, and the third session – billed as a “deep dive” on the $42.5 billion BEAD program – is scheduled for January 26.  NTIA also recently announced a Request for Comment (“RFC”) on the implementation of the following broadband programs of the Infrastructure Investment and Jobs Act (“IIJA”):

  • Broadband Equity, Access, and Deployment Program;
  • State Digital Equity Planning Grant Program; and
  • Enabling Middle Mile Broadband Infrastructure Program.

The RFC seeks comment on how NTIA should generally administer IIJA funds as well as “program design, policy issues, and implementation considerations” of each initiative listed above.  Comments are due by 5 p.m. EST on February 4, 2022.

NTIA has explained that it will use the comments submitted in response to the RFC, along with other sources of public input (such as the virtual listening sessions), to “improve the number and quality of ideas under consideration” as the agency develops the Notice of Funding Opportunity (“NOFO”) that will be issued for each program.  However, it bears emphasis that NTIA’s operational and grant-funding decisions are explicitly excluded from Administrative Procedure Act challenges, so this stakeholder input process is strictly advisory.

The RFC’s 36 questions are divided into four sections: an initial section with questions about general IIJA administration and then one section for each of the IIJA programs listed above.

  • On general IIJA administration issues, NTIA appears to be interested in what methods, data collection processes, and standards NTIA should use to support IIJA’s broader goal of connecting all Americans to broadband. NTIA also requests comment on the structure and format of the state subgrant award process, as well as workforce shortages and supply chain issues and their effect the IIJA’s goal of ensuring broadband infrastructure is made and installed by U.S. workers.
  • The BEAD Program questions focus on technical requirements for project service speeds, security, reliability, and sustainable service, as well as criteria for connecting unserved and underserved communities. NTIA also requests comment from stakeholders on what speeds, throughput, and latencies will be required to connect all Americans over the next five, ten, and twenty years.  Other BEAD Program questions cover the interaction between how to assess “served” areas vis-à-vis unfinished broadband projects, the definitions of “high-cost area” and “eligible subscriber,” and whether NTIA should define a baseline standard so providers are not required to offer disparate plans in each state, and what additional factors NTIA should adopt to drive affordability beyond the low-cost option.
  • Regarding the State Digital Equity Planning Grant Program, the RFC asked about how NTIA should advise states as they produce their plans for the program, particularly how programs can achieve the goals of the IIJA and ensure states consult with historically marginalized communities.

The RFC’s questions on the Enabling Middle Mile Broadband Infrastructure Program center around how NTIA should ensure middle-mile investments are targeted in areas where middle-mile service is non-existent or expensive, as well as prioritization and scalability of projects.

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Photo of Matthew DelNero Matthew DelNero

Matt DelNero works with companies in the telecommunications, technology and media sectors—advising them in policy development, regulatory compliance, and commercial transactions, among other settings.

Photo of Gerard J. Waldron Gerard J. Waldron

Gerry Waldron represents communications, media, and technology clients before the Federal Communications Commission and Congress, and in commercial transactions. Mr. Waldron served as chair of the firm’s Communications and Media Practice Group from 1998 to 2008. Prior to joining Covington, Mr. Waldron served…

Gerry Waldron represents communications, media, and technology clients before the Federal Communications Commission and Congress, and in commercial transactions. Mr. Waldron served as chair of the firm’s Communications and Media Practice Group from 1998 to 2008. Prior to joining Covington, Mr. Waldron served as the senior counsel on the House Subcommittee on Telecommunications. During his work for Congress, he was deeply involved in the drafting of the 1993 Spectrum Auction legislation, the 1992 Cable Act, the Telephone Consumer Protection Act (TCPA), CALEA, and key provisions that became part of the 1996 Telecommunications Act.

Mr. Waldron’s practice includes working closely on strategic and regulatory issues with leading IT companies, high-quality content providers in the broadcasting and sports industries, telephone and cable companies on FCC proceedings, spectrum entrepreneurs, purchasers of telecommunications services, and companies across an array of industries facing privacy, TCPA and online content, gaming, and online gambling and sports betting-related issues.

Mr. Waldron has testified on communications and Internet issues before the FCC, U.S. House of Representatives Energy & Commerce Committee, the House Judiciary Committee, the Maryland Public Utility Commission, and the Nevada Gaming Commission.

Trevor Bernardo

Trevor Bernardo is an associate in Covington’s Washington, DC office. As a member of the Communications and Media Industry Group and Public Policy Group, Trevor represents and advises clients pursuing public policy strategies and conducting commercial transactions involving entities regulated by the Federal…

Trevor Bernardo is an associate in Covington’s Washington, DC office. As a member of the Communications and Media Industry Group and Public Policy Group, Trevor represents and advises clients pursuing public policy strategies and conducting commercial transactions involving entities regulated by the Federal Communications Commission and state public utility commissions. He also maintains an active pro bono practice. Before joining Covington, Trevor worked on various state and federal campaigns across the country.