BEAD Under Pressure

The three-year anniversary of the Infrastructure Investment and Jobs Act (IIJA) is fast approaching. Zero households have been connected through the Broadband Equity Access and Deployment (BEAD) program, IIJA’s signature $42.5B broadband program that aims to bring universal internet service to all Americans. While all infrastructure programs take years to implement, BEAD’s pace has led to increased congressional scrutiny of the program, with? questioning of administering agency the National Telecommunications and Information Administration (NTIA) by the House Subcommittee on Communications and Technology scheduled for tomorrow morning.?

Delay? What delay??

Whether or not the BEAD program is off track is a point of contention amongst stakeholders. NTIA posits that they are right on schedule with a program that was always intended to unfold over a 10-year timeline. Former large-scale federal #broadband programs administered by the Federal Communications Commission , including the Connect America Fund (CAF) and Rural Digital Opportunity Fund (RDOF) programs, were on similar decade-long timeframes.?

Supporters of BEAD’s progress also point out that rural electrification (which universal broadband service is often compared to) took 20+ years after passage of legislation to complete. Broadband deployment is infrastructure--it requires community and financial planning, engineering, design, permitting, construction, marketing, installation, and more. This process cannot be completed overnight.?

So why all the fuss about “delays” with BEAD? Let’s look at more recent broadband programs for context. The Coronavirus Relief Fund (CRF), established as part of the 2020 pandemic-response legislation called the CARES Act, provided states with flexible funding to address the impacts of Covid-19. Many states set aside part of their allocation for broadband. Kansas opted to invest $50M towards bridging internet access divides. The caveat was that companies applying for the funds had to agree to complete the projects by the end of 2020…and Kansas didn’t select subgrantees until the fall. (Note: Congress offered a last minute reprieve of this deadline at the 11th hour).?

The company for which I worked was awarded four of those grants in October 2020. In just a few months that winter, we constructed 358 route miles of fiber and 70 wireless towers to connect 13,000 homes and businesses. Through frozen ground. In the snow. Yes, I realize this sounds like your grandparents’ tales of walking to school uphill both ways. It was not an easy feat, but it was lightning fast in terms of how quickly public dollars were translated into public benefit. It turns out that bureaucratic barriers are chaff in the wind during an emergency response.?

Another large tranche of federal funds for broadband expansion followed in March 2021, via the American Rescue Plan’s (ARPA) Capital Projects Fund (CPF). The CPF program, like CRF, offered states flexibility to design programs that would best fit their needs. Kansas was able to secure approval of its plan from U.S. Department of the Treasury (my first victory at KOBD!) in 2022 and run a swift sub-grant process. Providers were given 24 months to complete their projects. By the time APRA celebrates its four year anniversary, CPF will have connected 23,500+ homes with fiber broadband in Kansas--a relatively short time frame for major infrastructure projects. Other states have similar stories about the ability to connect homes quickly with CARES funding and ARPA’s CPF and State and Local Fiscal Recovery Fund programs.?

It is against this backdrop of recent Treasury broadband programs--not the historic FCC programs--that some people are saying, “Why the hell is BEAD taking so long?” Our government has proven that it has the wherewithal to deliver critical services at a faster clip. The American public has grown accustomed to seeing a headline about grant dollars for broadband and observing those grant dollars put to work in their community to address internet service gaps. It will not be easy to convince everyone that we need to return to the days of taking 6-10 years from passage of legislation to connect a home.?

Apples and Oranges

It would, however, be misleading to imply that BEAD is like any other broadband program. It is much more complex. The Treasury programs were designed to empower states to react quickly and nimbly in response to emergency needs. CPF carried more requirements than CRF, but both programs were a cake walk compared to BEAD. Why is this??

As I noted in my last article, Congress dumped a lot into the BEAD legislation. Policy priorities attached to the funding mean entities that take grants will need to abide by certain labor, environmental, and pricing requirements. Tying policy goals to grant money is a powerful incentive and an effective way to create broadscale change (See BABA as a positive example). But it adds to the cost and time of implementing a program.?

Strict financial gating criteria for subgrant eligibility is also a hallmark of BEAD. This may have been Congress’ attempt to craft the program in a way that would avoid the same failures of RDOF and CAFII programs to fully vet grant recipients pre-award, which led to defaults and broken promises to unserved households. Indeed BEAD seems to be a giant pendulum swing in the opposite direction of every potential pitfall that past broadband programs have fallen prey to. It might be politically popular to blame the administering agency, but Congress owns a lot of the responsibility for the program’s challenges because of the way they wrote the law.?

That being said, there is plenty of blame to go around for BEAD delays. It is not the case that NTIA is doing everything in its power to expedite the rollout of BEAD. Let’s examine a few unnecessary hoops that states are asked to jump through that are holding up successful program implementation, and some solutions to get BEAD up and running more quickly.?

A Cure in Search of an Ailment

Those who have submitted a federal grant application may be familiar with the process dubbed “curing.” I described it briefly in my article about the challenge process as the back-and-forth that takes place between federal compliance staff and applicants. Curing is designed to ensure that submitted documents meet statutory requirements.?

Curing is why BEAD Initial Proposals submitted by states last December are still not approved nine months later. It is the single largest holdup of progress. Curing is not a one step process. Instead, there are Dantean levels of curing. It is a nebulous, inefficient, inconsistent process of trial and error that states go through before receiving permission to move forward.?

Circles of curing hell:

Federal Program Officer (FPO) review → Policy team review → Legal review → Asst. Sec. review and signoff → NIST review → Approval to move to next step?

The first two levels are relatively easy to navigate. FPOs and policy staffers offer guidance on how best to reconcile concerns, and states revise documents accordingly. But the process goes to hell during legal review. The Office of Chief Counsel (OCC) is small and thus siloed from earlier curing rounds. There aren’t enough attorneys to advise at every step, so new issues are often raised in legal review that were not flagged earlier, and the entire process begins anew.

When states get curing feedback, they are given a deadline to respond--usually less than a week. The response back from NTIA is not subject to deadlines and could take several weeks. They are, after all, reviewing 56 states and territories. Multiple rounds of curing=months of delays. Important to note is that states receive curing on everything submitted to the NTIA, not just applications. Semi-annual reports, budget modifications, plans, etc. are all at some stage of curing at any given time. It is relentless.?

Curing is not all bad. Each state has a different capacity to carry out these programs. Without feedback from the NTIA, compliance with the law would be difficult. The issue is when curing becomes superfluous and involves revisions that offer no discernible impact on the success of the program. For instance, I was forced to cure the same sentence in requirement 17 of KS’ Initial Proposal three times over the course of four months due to OCC requests. Nothing about that four month delay did anything to further the goal of universal broadband service. It was a drain on limited staff and consultant resources to address the arrangement of a few words.

I am not trying to demonize the attorneys. I do not believe that they intentionally erect unnecessary bureaucratic barriers. It is more likely that they are trying to ensure BEAD doesn’t fall prey to the same failures of RDOF and CAF. Their role is to mitigate risk, and their default mode is cautious. But BEAD will never be a perfect program. It can’t do any good if it never gets off the ground.

Where’s the Process?

The second largest stumbling block to getting BEAD launched is unclear approval processes. The processes that move states further along the funding path aren't built in time for states that move quickly. States that deploy the program at a quicker pace than they receive guidance are left waiting. We haven’t tried a program like this before as a country. NTIA is building the processes for the BEAD program as they execute it.?

Challenge process approval is one example of this. LA and KS submitted their results in February. Both states were included in a group of approvals in July--several months later--because the validation process was not completed when early states were ready for review. (Note: KS’ approval was later rescinded and they are still awaiting approval to move forward).?

Another example is the Final Proposal process. LA became the first state to receive Initial Proposal approval in December last year, setting off a 365 day shot clock for submission of their Final Proposal. Final Proposals must undergo a 30 day public comment period before submission, meaning LA needs to post their plan by early November to meet the deadline. But NTIA has yet to provide Final Proposal guidance.! It's T-60 day folks! ?

Everything is Politics

The last thing I’ll mention that is stymying BEAD progress is policy disagreements. I’m not going to harp on this because many articles have touched on the low cost dispute and it’s likely the main focus of tomorrow’s hearing. But I will mention that the low cost broadband service requirement is still holding up approval of some states’ Initial Proposals. They will continue to languish in curing purgatory until policy differences are resolved.?

Solutions

Enough armchair quarterbacking. Let’s talk solutions!?

Solution #1: Trust the states

Let’s dispel the myth that BEAD is a state-driven program. It is not. States were required to submit a plan to get to universal broadband access. States then drafted plans with input from thousands of their residents. NTIA responded with direction for how the states must conduct their plans. NTIA could try simply putting more faith in the states to execute on the program.?

The whole “laboratories of democracy" concept worked splendidly with CPF and resulted in Treasury ushering $10B out the door quickly for broadband expansion projects. States already have joint responsibility for BEAD compliance. Let’s also give them joint authority by taking a lighter-handed approach to curing.?

Solution #2: Progress should trump process

States that move quickly should not be penalized by having to wait for processes that aren’t yet hashed out. They should be rewarded with the ability to move forward to the next step. This goes along with solution #1. Will there be hiccups with this approach? Absolutely. But there will inevitably be failures along the way regardless of how tight the processes are.?

Solution #3: Let go of policies that lack clear congressional intent

Stop trying to make fetch happen. If a requirement is not in IIJA, NTIA should not require it. The administration may have valiant policy goals they would like to advance by tying them to BEAD awards (I agree with these goals!) But they likely won’t win those battles long term if they aren’t supported by the legislation. It is more important to get homes connected than to check off a slate of policies that makes the program overly political. Don't lose sight of the main mission. Minimize lawsuits and speed things up by sticking to the law.?

Solution #4: Change the law

Congress always has the option to change BEAD requirements if they truly deem them too cumbersome to execute. Despite the implication of #3 above, most of BEAD’s heavier lifts aren’t being inserted by the administering agency--they were included by Congress itself. But criticism of the administration makes for great political posturing during an election year.?

Bottom Line

BEAD is a noble program. It has the potential to transform households and communities. But it has to get off the ground first. There will never be a less expensive time to build a broadband network than today. The cost of debt, materials, and labor is not going down. Let's get the money flowing as soon as we can. Although the program is complicated, there are steps we can take now to accelerate its progress and make good on its mission of #internetforall.?