The National Telecommunications and Information Administration has taken the first steps in implementing the broadband programs of the Infrastructure Investment and Jobs Act.
The Infrastructure Investment and Jobs Act (IIJA) includes unprecedented investments to build out broadband infrastructure and service across the United States. While the IIJA does not have specific provisions for higher education connectivity, its $65 billion in broadband spending provides some opportunities for the institutional community.Footnote1
President Biden signed the IIJA into law on November 15, 2021, but implementing the programs in the statute has only just begun. The National Telecommunications and Information Administration (NTIA) recently released rules governing broadband programs in the IIJA via three Notice of Funding Opportunities (NOFOs). The details emerging from the agency offer a glimpse into how states and program participants may leverage the investments made under the IIJA to advance broadband connectivity. Unsurprisingly, these details have prompted congressional scrutiny—something that tends to happen when an agency implements federal programs of this scale.
Following is an overview of the NOFOs for three broadband programs included in the IIJA:
- The Broadband Equity, Access, and Deployment (BEAD) Program provides $42.5 billion for states to build broadband infrastructure in unserved and underserved communities. This program includes bringing community anchor institutions (CAIs) to at least a one gigabit-per-second service level.
- The Middle Mile Broadband Infrastructure Grant Program (Middle Mile Grant Program) contains $1 billion for competitive grants for the construction, improvement, or acquisition of middle-mile broadband infrastructure that links last-mile connections to homes, businesses, and organizations, with backbone networks handling the volume of internet traffic.
- The State Digital Equity Planning Grant Program is part of the larger State Digital Equity Capacity Grant Program and includes $60 million to support the development of state equity plans to increase digital inclusion across a state's population. Higher education institutions are among the organizations that are eligible to serve as the "administering entity" for their state. The administering entity will be tasked with developing the plan and coordinating inclusion programs.
Congress specified that states receiving broadband funds under the BEAD program must address three main priorities in the following order:
- Unserved locations: These are defined as locations with no broadband service or service with speeds below 25 megabits-per-second (Mbps) download and 3 Mbps upload.
- Underserved locations: These are defined as locations without broadband service offering speeds of 100 Mbps download and 20 Mbps upload.
- CAIs lacking gigabit connections: Examples include schools, libraries, healthcare facilities, and higher education institutions.
This prioritization means the amount of available funding for higher education institutions that are eligible CAIs will depend on the share of resources remaining after projects for unserved and underserved locations are complete, which will vary by state based on the needs of its population. The NOFO is clear that, as stipulated in the IIJA, states must certify that BEAD program funding has been awarded in a manner that ensures unserved area coverage in totality before prioritizing projects that address underserved locations.Footnote2 However, unserved and underserved locations are referenced in the same breath throughout the document, suggesting that the agency is encouraging states to strive for 100/20 Mbps service across both locations. Doing so could require a more substantial investment in unserved and underserved areas, leaving CAI projects with an even smaller share of funding, if any. For example, the NOFO notes that "the program's principal focus will be on deploying broadband service to unserved locations and underserved locations" and allows states "that demonstrate they will be able to ensure service to all unserved and underserved locations" to use the remaining funds in other ways, such as ensuring gigabit connections to CAIs.Footnote3
The NOFO answers many other questions the NTIA raised in its request for comments earlier this year.Footnote4 It pays particular attention to nontraditional broadband providers, such as municipal or public-sector providers. The NOFO communicates that NTIA will review whether states have adopted policies since the enactment of the IIJA that precludes these providers from the procurement process and directs states with existing laws that exclude public providers from subgrant competition to waive those requirements for the BEAD program. Additionally, states will be required to explain their efforts to ensure the participation of nontraditional broadband providers and the awards they make to traditional providers in instances where one or more nontraditional providers submitted bids. Thirteen Republican senators have since registered concern with NTIA's approach, arguing that the NOFO is inconsistent with IIJA's requirement that the agency award funds in an equitable and nondiscriminatory manner and undermines a fair and competitive procurement process.Footnote5
Also worth noting is the prioritization of projects designed to provide fiber connectivity over other alternatives, along with the requirement that states have plans to address middle-class affordability via subsidies or other strategies. The same group of senators took issue with these aspects of the NOFO. They assert that the fiber preference ignores the technology-neutral approach of the IIJA and that the requirement for "all states to have plans to address middle-class affordability" is an indirect form of rate regulation, which the IIJA prohibits.
States were required to submit their intent to participate in the program in July, and those that receive planning funds must submit a five-year action plan to the NTIA within 270 days of receiving the funds. Total program funding allocations will follow the Federal Communications Commission's release of updated and improved broadband maps, which is expected this fall.
Middle Mile Grant Program NOFO
The NTIA is accepting grant applications for the Middle Mile Grant Program through September 30, 2022, and expects to select recipients by February 16, 2023. The agency will disseminate awards at some point after March 1, 2023.
Worth noting is the requirement in the NOFO that proposals include certification that completed projects will include direct interconnections that facilitate the provision of broadband at no less than a one-gigabit-per-second service level to anchor institutions located within one thousand feet of the middle mile infrastructure. An "anchor institution" is defined for the program as a "school, library, medical or healthcare provider, community college, or other institutions of higher education, or other community support organization or entity."Footnote6 Applicants may seek a waiver for this requirement if meeting it proves to be technically or economically unfeasible.
State Digital Equity Planning Grant NOFO
The NTIA required states to submit initial applications for digital equity planning grant funds by July 12, 2022. It expects to complete its application review and make selections by September 15 and begin awarding funds on September 29.
The NOFO specifies that a state's digital equity plan must include a description of how it intends to accomplish its overall implementation strategy by engaging and partnering with, among other stakeholders, "institutions of higher learning, including but not limited to four-year colleges and universities, community colleges, education and training providers, and educational service agencies."Footnote7 A state must also describe how it plans to coordinate funding received for digital equity with funding it receives through the BEAD program—a detail highlighted in the letter from the group of thirteen senators mentioned above. The lawmakers contend that IIJA does not base participation in one program on the other and have urged the NTIA to clarify that participation in either will not be used to prioritize applications.Footnote8
The bipartisan infrastructure law's broadband investments represent a major milestone for the long-sought national goal of bridging the digital divide in communities across the country. But the work that will determine the reach and longevity of the programs has only just begun. The extent to which these programs can deliver their desired outcomes will hinge on various factors, not the least of which is the future congressional appetite for their continuation. EDUCAUSE will continue to monitor the federal activities driving these programs and will work with its members and partners to identify avenues for the higher education community to advance its connectivity objectives.
- Infrastructure Investment and Jobs Act of 2021, 117–58, 135 Stat. 429 (2021); Jarret Cummings, "Bipartisan Infrastructure Bill Offers Some Opportunities for Higher Ed," EDUCAUSE Review, August 11, 2021. Jump back to footnote 1 in the text.
- "The Eligible Entity may seek proposals to serve unserved locations, underserved locations, and CAIs collectively or separately, so long as the Eligible Entity awards funding in a manner that prioritizes Unserved Service Projects and once it certifies that it will ensure coverage of all unserved locations within the Eligible Entity, prioritizes Underserved Service Projects." National Telecommunications and Information Administration, Notice of Funding Opportunity: Broadband Equity, Access, and Deployment Program (NTIA-BEAD-2022, 11.035), 37. Jump back to footnote 2 in the text.
- NTIA BEAD NOFO, 7. Jump back to footnote 3 in the text.
- NTIA, "Infrastructure Investment and Jobs Act Implementation," Federal Register 87, no. 6 (January 10, 2022), 1122. Jump back to footnote 4 in the text.
- Susan M. Collins et al., Letter to The Honorable Gina M. Raimondo, Secretary of Commerce, August 18, 2022. Jump back to footnote 5 in the text.
- NTIA, Notice of Funding Opportunity: Middle Mile Grant Program (NTIA-MMG-2022, 11.033). Jump back to footnote 6 in the text.
- NTIA, Notice of Funding Opportunity: State Digital Equity Planning Grant Program (NTIA-DE-PLAN-2022, 11.032), 22. Jump back to footnote 7 in the text.
- Collins et al., Letter to The Honorable Gina M. Raimondo. Jump back to footnote 8 in the text.
Kathryn Branson is a Partner at Ulman Public Policy.
© 2022 Kathryn Branson. The text of this work is licensed under a Creative Commons BY-NC-ND 4.0 International License.