Last Friday, the National Telecommunications and Information Administration (“NTIA”) took a major step in furtherance of the Biden Administration’s goal of connecting all Americans to broadband by releasing its widely anticipated Notice of Funding Opportunity (“NOFO”) for the landmark $42.5 billion Broadband Equity, Access, and Deployment (“BEAD”) Program, along with NOFOs for two smaller programs. All of these programs were created by the Infrastructure Investment and Jobs Act (“IIJA” or “the Act”) which was signed into law in November 2021. The NOFO marks the beginning of the BEAD Program’s implementation and provides important guidance to states on the process for obtaining funds that they, in turn, will award to service providers and other qualified recipients for building out broadband to unserved and underserved areas.
On timing, the NOFO clarifies that states will be eligible to receive some initial funding in the near-term, and that the bulk of funding will become available after the FCC releases broadband maps identifying broadband access across the country. Commerce Secretary Gina Raimondo and FCC Chairwoman Jessica Rosenworcel have indicated that the FCC expects to release the maps as early as November 2022, meaning that BEAD funds will begin to flow to states and service providers and other qualified recipients in 2023.
On substance, the NOFO expresses a clear preference (but not an absolute requirement) for fiber-to-the-home projects by defining “Priority Broadband Projects” as those “that will provision service via end-to-end fiber-optic facilities.” Further, the NOFO retains the IIJA’s requirement that service providers must offer broadband service at a speed of at least 100 Mbps downstream/20 Mbps upstream and a latency less than or equal to 100 milliseconds. Last, the NOFO defines “eligible subscribers” that will be eligible for a low-cost broadband service option that providers are required to offer as “any household seeking to subscribe to broadband internet access that (1) qualifies for the Affordable Connectivity Program (ACP) or any successor program, or (2) is a member of a household that” was at or below 200 percent of the Federal poverty line or qualifies under a low-income program such as Medicaid.
Despite the NOFO’s guidance in these areas and supply chain concerns raised by broadband providers, the NOFO leaves unanswered the question of whether there will be any waiver of the “Build America, Buy America” requirement that funded broadband networks be deployed using at least 55% domestic materials.
For an expanded discussion of the BEAD Program, please visit our Client Alert here.