WASHINGTON, August 25, 2022 – A group of 13 Republicans on Tuesday released a letter critical of the National Telecommunications and Information Administration’s rules implementing the broadband infrastructure program and urging the agency to revise them.
Spearheaded by Sens. Susan Collins, R-Maine, and Rob Portman, R-Ohio, the all-Republican group crafted a detailed, six-page letter arguing that the agency’s rule “undermines or conflicts with congressional intent and the plain language of the” Infrastructure Investment and Jobs Act, and that “certain provision go beyond the authority granted to NTIA.”
The senators focus on the choice of technology for broadband deployment, labor and employment laws, and apparent requirements to interconnect to middle-mile infrastructure deployments.
The first of letter’s seven points dwells at length on an issue that the Republicans refer to as “rate regulation,” and argues that the agency “appears to open the door to rate regulation by imposing” a suggested $30 price point for low-income broadband.
Others letter signatories included Mississippi’s Roger Wicker, ranking member of the Senate Commerce Committee, plus Mitt Romney of Utah and Kevin Cramer of North Dakota.
The letter to Commerce Secretary Gina Raimondo was dated August 18, but apparently released on Monday or Tuesday, with Cramer and Romney releasing statements and copies of the letter on Monday and Tuesday.
Challenging the rules
In challenging elements of the regulations, the senators criticized the Notice of Funding Opportunity released by NTIA on May 13. The Commerce Department agency has been given responsibility for the lion’s share of the $65 billion for broadband under the IIJA. Indeed, $42.5 billion of funding flows through the Broadband, Equity, Access, and Deployment program.
On broadband pricing, the GOP group points out that IIJA prohibits NTIA from using BEAD funds to interfere with broadband pricing. Nonetheless, say the senators, the NOFO imposes “indirect forms[s] of rate regulation,” including suggested state-level price caps, a ban on data usage–based pricing options, a mandate that states include a “middle-class affordability plan,” and a requirement that “providers receiving [BEAD] funds…offer low-cost, high-speed plans to all middle-class households using a BEAD-funded network.”
NTIA Administrator Alan Davidson dismissed claims of rate regulation, at a Senate Oversight Committee hearing in June: “We have looked at different ways to make sure that we are promoting affordability while still giving states the flexibility to approach it in the ways that are appropriate for their state.”
The group of 13 criticizes the NOFO’s definition of “priority project” to include only fiber-optic technologies. “The IIJA states that any provider that can reliably provide 100 [Megabits per second (Mbps) * 20 Mbps] is qualified to participate,” the senators write.
Fiber isn’t the only form of broadband technology. Other technologies, including fixed wireless, cable, and satellite, have their advocates, and representatives of non-fiber technologies are advocating against the way that the NOFO shifts the broadband landscape going forward.
Special preferences for municipalities, coops and non-profits?
The senators also criticize the NOFO for encouraging “non-traditional broadband providers” including municipalities, cooperatives, non-profits, Tribal governments and utilities. States may pass over the best available provider and instead choose a subpar, “non-traditional” option, they say.
The senators argue that a state’s participation in a Digital Equity Program should not be characterized as “essential.” In other words, a state should be able to participate in the BEAD program, or the Digital Equity Program, without having to participate in both. The senators ask to clarify that states will not be considering unfavorably for not join ing the Digital Equity Programs.
The senators acknowledge that many of the NOFO’s labor provisions are in accordance with federal labor law and IIJA, but say that NTIA oversteps its bounds. “Many of the specific workforce-related obligations set out in the NOFO erect considerable roadblocks to ensuring swift deployment of broadband access to all Americans. For example, the NOFO authorizes states to prefer or even mandate a provider’s use of a ‘directly employed workforce,’ as opposed to using contractors and subcontractors.”
The letter cites an acute, “widely-reported” worker shortage in the broadband industry, and state that the NTIA’s “extraneous” workforce regulations may worsen the existing crisis and prevent the timely deployment of broadband. The absence of workers is a widely discussed topic among industry experts.
Interconnection requests and multiple layers of bureaucratic review
Additionally, the senators state that the NTIA rules require that participating service providers “accommodate requests for interconnection outside of the planned deployment of [middle mile projects in unserved and underserved locations],” and write that this requirement has “no basis in law.” They also write that such diversions would also be redundant, given that Congress already allocated funds directly towards remedying interconnection gaps.
The senators finally criticize the agency for “unnecessary burdens in the NTIA review process,” and say that this process is “likely to mire State broadband offices in excessive bureaucracy and delay connecting unserved and underserved Americans.” As an example, they criticized “the planning sections on climate resiliency and system hardening for the useful life” of a broadband project “contain multiple layers of research, reporting and justification.”
