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The Broadband DATA Act, RDOF, BEAD, The Long Slog Toward Broadband Access

By Marc McCarty

Happy New Year!

As 2022 begins, it seemed an appropriate time to take stock of progress we’ve made in funding broadband access. This blog checks in on some federal government programs that have gotten quite a few headlines over the past year or two, to see how implementation is going.

The Broadband DATA Act

The Broadband Deployment Accuracy and Technological Availability Act (thankfully shortened to the “Broadband DATA Act”), doesn’t directly provide any money to build broadband infrastructure, but implementing it may be the key to actually spending the billions of dollars already appropriated by Congress for broadband buildout, and that’s part of the reason why the results to date have been a little disheartening.

The Broadband DATA Act became law March 23, 2020. One of its primary objectives is to once and for all identify – with a high degree of confidence – all areas in the United States where a broadband connection can be installed (a “Serviceable Location”).  Serviceable locations include those in urban as well as rural areas, and arguably should include businesses and institutions, as well as residences. A key provision of the Broadband DATA Act requires the FCC to define what a “Serviceable Location” is and to produce a “data set” that would enable folks to accurately locate all of them on a map. This is called the “FABRIC.” Internet providers and the public would then report whether fixed wired or wireless broadband service is (or could be) offered to each of these Serviceable Locations with existing infrastructure.  

Knowing all this is critical of course, because federal funding to assist in building internet infrastructure needs to be targeted to locations that currently do not have service available. Folks just “tuning into” this issue usually are shocked to learn that many billions of federal government dollars have already been directed to build out broadband infrastructure based on maps that everyone acknowledges are not very good. In fact, Missouri was one of two states where this was illustrated in a pilot project commissioned in 2019 by the broadband industry. This project was undertaken to determine the feasibility of creating the FABRIC, and to see how much it differed from the broadband access data that the FCC and others were using to award federal grants and loans.  The results were sobering: In Missouri, 36% of the rural Serviceable Locations identified using the FABRIC were not being reported at all (either as served or unserved) in the existing FCC data.

However, even though the need is obvious, progress in creating the FABRIC has been slow, even as the need for it has become even more critical. After the Act became law, the FCC reported that it could not begin work because it did not have the funds necessary to achieve the objectives of  the Broadband DATA Act. This was finally rectified in December 2020, when an additional $65 million was appropriated to the FCC by Congress.

So, where is the FABRIC? Well, that’s what Indiana Congresswoman Victoria Spartz wondered. So, in late September she sent a letter to FCC Chair Jessica Rosenworcel, asking for a target date for completion of the FABRIC and related objectives of the Broadband DATA Act. It seemed a logical question, as the Commissioner was reported to have testified before Congress in March 2020 that the improved map could be produced in 3-6 months.

Commissioner Rosenworcel responded in early December. She did not provide a date for delivery of the FABRIC but did provide some reasons for delays in 2021. The FCC elected to contract out work to produce the FABRIC to a private company. After a series of false starts, the bid request was finalized in mid-August and the contract to build the FABRIC was awarded in early November. However, before work could start an unsuccessful bidder filed a protest with the General Accounting Office (GAO) and this has delayed any further work until February 2022 while the bidder’s protest is evaluated. Assuming the GAO does confirm the original award, once work commences it will be another four months before a preliminary version of the FABRIC is delivered.

Of course, that’s just the preliminary version of the FABRIC. There are also important policy questions that remain unresolved. For example, should Serviceable Locations identified as part of the FABRIC be limited to residences only, or should some or all all businesses and institutions be included as well. And of course, the preliminary version of the FABRIC will need to be vetted and updated, internet providers will need to report whether they can (or do) offer service at those locations, and this information will need to be verified by the FCC and the public, as required by the Act.

The Rural Digital Opportunity Fund (RDOF) Auction

There are “real world” consequences to delays in implementing the Broadband DATA Act. On December 7, 2020, the FCC announced that $9.2 billion had been awarded on a “preliminary” basis to hundreds of private and public internet service providers to help fund the build out high-speed internet in unserved areas (census blocks) throughout the United States. While the announcement of this award was welcome, in an earlier blog I cautioned not to expect too much too soon because the awards were preliminary, recipients would have to go through a vetting process, and when the grant was finalized they would have six years to satisfy their commitment to build out service in the unserved areas.

However, these observations proved to be far too optimistic. Earlier this month, in response to a written inquiry signed by 19 members of Congress, Commissioner Rosenworcel detailed the challenges that have delayed the FCC in finalizing the awards. At that time, more than a year after the initial announcement, less than 20% of the preliminary award had been finalized and committed.

Because eligibility for grants was based on the FCC’s maps, the Commission determined that over 5000 census blocks that were announced as receiving awards last December needed to be removed because they clearly either had broadband service – or they never should have been included in the first place. Parking lots and international airports were among those receiving preliminary awards of funds in 2020.

While 5,000 census blocks is a big number, there were well over 60,000 census blocks that received an initial award, so there were still plenty of locations remaining. According to the Commissioner, the FCC continues to press on, reviewing details provided by winning bidders, and it will periodically continue to announce more locations and winning bidders that have successfully navigated the review process. Most recently, on December 16th, the FCC announced it would begin to fund an additional $1 billion (over 10 years) of the original $9.2 billion announced last December. That said, it is sobering that distribution of approximately 2/3 of the promised money has yet to begin, particularly in light of the 6-year period the awardees have to complete the required internet service connections.

The IIJA

Of course, by far the most newsworthy new federal funding program this year was the mammoth Infrastructure, Investment and Jobs Act (the IIJA). This law appropriates $42.4 billion to the new Broadband Equity, Access, and Deployment (or “BEAD”) Program. As noted in an earlier Blog, rather than the FCC, the agency primarily responsible for administering the BEAD Program is the National Telecommunication and Information Agency (NTIA). In addition, instead of direct federal grants to internet service providers, the BEAD Program contemplates that each state will establish its own program for broadband deployment, (subject to NTIA’s approval) and that NTIA will allocate each state a share of BEAD Program funds based primarily on how many underserved locations are present within the state as compared to the rest of the country. All this is supposed to commence with the publication of a “Notice of Funding Opportunity (or “NOFO”) to all states by May 14, 2022.

“How will NTIA figure what locations are served and unserved” you ask? Well, that will be based on the FABRIC and full implementation of the Broadband DATA Act. And of course, as noted earlier, delivery of the FABRIC and full implementation of the Broadband DATA Act is in the hands of the FCC.

What Comes Next?

A “slog” is a particularly tiring task that requires a lot of effort. A “long slog” describes situations where that effort is required for an extended time. The events of the last year certainly make it clear that this description is going to be appropriate for the process of getting the promised federal dollars necessary to build and deploy broadband into the hands of states, and ultimately to public and private internet service providers.

To some extent, local government, business, and institutions are at the mercy of the federal agencies charged with implementing the RDOF, the BEAD Program, and many other similar grant and loan fund programs; and those agencies must follow procedures mandated by law to account for the proper expenditure of those funds. However, that doesn’t mean it is appropriate to ignore situations where the bureaucracy appears to have run amok. If nothing else, keeping the lack of progress or inordinately slow progress front and center in the public’s mind may ultimately lead to procedural reforms within these agencies and perhaps within Congress as well.

It also seems apparent that it would be a mistake for state and local governments to wait for the FCC to compete the FABRIC. For one thing, it seems apparent that delivery of the final product will extend well into 2022 (and perhaps beyond). But at a more fundamental level, each state needs independent engineering and technical evidence to verify that the data the FCC and NTIA propose to use to distribute federal grants is accurate and complete. Thankfully, Missouri is moving in that direction, and in November awarded a contract for a detailed assessment of fixed and wireless broadband deployment needs, and estimates of the cost to make fixed wired and wireless broadband service available throughout each county in the state. That work should be completed this spring, well in advance of the completion of even the preliminary FABRIC.

Likewise, state and local governments already have funds available through the American Rescue Plan Act to assess community needs and resources available to improve broadband service, with a view and to beginning the process of deploying broadband in their communities. While there are many priorities that arguably need to be addressed with this money, broadband certainly is one of them, and the Governor’s proposal to commit $400 million of the state’s share of those funds to broadband deployment, should serve as an example for counties and cities as they decide how to spend their American Rescue Plan Act funds.

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