The Internet is essential for access to economic opportunity, education, health care, justice, and so much more. Unfortunately, there are millions of people around the country who still don’t have the access, digital skills, or devices needed to use it.
In 2021, the Bipartisan Infrastructure Law provided $65 billion in funding to connect everyone in America to affordable, reliable, high-speed Internet service.
The Department of Commerce’s National Telecommunications and Information Administration (NTIA) is charged with administering the largest of these new programs—the Broadband Equity, Access, and Deployment (BEAD) grant program. The BEAD program provides $42.45 billion to expand high-speed Internet access by funding planning, infrastructure deployment, and adoption programs in all 50 states, Washington D.C., Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, and the Commonwealth of the Northern Mariana Islands. NTIA is implementing the BEAD program, but the states and territories will play the central role. They have considerable flexibility to determine the best way to connect every home and small business within their borders.
Across the country, states and territories are already actively engaged in this effort. In 2022, each of them received planning funds to, among other things, create or strengthen a broadband office to do this work. In June 2023, NTIA determined each state and territory’s allocation of the remaining BEAD funding. And as of December 2023, each state and territory submitted to NTIA their Initial Proposal for how they plan to use those funds to meet BEAD program requirements. These Initial Proposals detail how states will identify unserved and underserved locations and community anchor institutions, how they will conduct subgrantee processes to fund broadband infrastructure deployments, and, where funds remain, how they will advance other non-deployment goals like workforce development and digital equity programs. Progress by each state and territory on their BEAD initial proposals is monitored by the NTIA here.
Connecting the country to high-speed Internet is an all-hands on deck moment. This includes Attorney General Offices and other legal support functions for broadband offices across the country. Collaboration will be essential to the program’s success, including along at least two key lines.
First, we can work together to ensure that states and territories design strong and legally sustainable BEAD programs. This starts with the implementation of their broadband map challenge processes – which determine the unserved and underserved locations and Community Anchor Institutions, like schools and libraries, that are eligible for BEAD funding. These processes must be transparent, evidence-based, and consistent to ensure funds go where they are most needed. Next is the subgrantee selection process, which must be open, competitive, and fair to maximize participation where possible and ensure all potential providers have an equal opportunity to be awarded funds to deploy. Advising state and territory broadband offices on how to build and run competitive and fair processes is critical to the BEAD programs success.
Colorado has been a leader in broadband grant programs since 2015, starting with its High-Cost Support Mechanism (HCSM) broadband grant program administered by the Colorado Broadband Office (CBO).
With support from the Assistant Attorney General – Broadband, the CBO regularly updates and publishes a detailed map indicating all Broadband Serviceable Locations (BSLs), including the status of “served,” “unserved,” or “underserved.” Internet Service Providers (ISPs), municipalities, and tribes are then given the opportunity to “challenge” the status of each location to make corrections, and provide supporting documentation. This challenge process ensures BEAD grant funds are only expended on unserved and underserved locations. The challenge evidence is reviewed in a fair, reasonable, and consistent manner to give the challengers and the public confidence in the process.
Similarly, the actual grantee selection process must set forth clear, objective, scoring criteria for potential grantees. Much of the BEAD application scoring criteria is set forth in the BEAD Notice of Funding Opportunity (NOFO), but states are given some flexibility to address unique criteria the state deems important. The Colorado BEAD scoring criteria includes a low-income broadband tier offering, and sets forth the subscriber qualifications for such broadband tier. Overall, legal guidance is provided to the CBO at every step in order to ensure a fair, reasonable, and nondiscriminatory grant evaluation process.
Second, NTIA and AG offices can work together to ensure BEAD program integrity and protect taxpayer funds. Waste, fraud, and abuse are always a risk—and that is especially true here, given the size and scope of this program. States and territories should incorporate subgrantee accountability requirements and safeguards, such as certification and reporting requirements, robust monitoring practices, and claw-back provisions requiring return of unearned or improperly-obtained funds. Beyond that, the NTIA, the Department of Commerce Office of Inspector General, and AG offices need to establish open lines of communication now so that—when necessary—enforcement against bad actors is coordinated, swift, and effective across state and federal authorities.
Colorado has a multilayer approach to tackling waste, fraud and abuse.
- Pre-application qualification of applicants. Applicants must have the financial, managerial, and operational wherewithal to complete the proposed broadband project. We also check state, federal, and FCC databases for any prior violations, defaults, and good standing.
- Grant Agreements. A good grant agreement is essential to be able to enforce performance under the agreement. Strict state rights to terminate, claw back of grants funds, and performance bonds are essential, yet flexibility to extend performance periods and accommodate unforeseen circumstances are also important. Colorado’s Capital Projects Funds Grant Agreement template is located here.
- Fraud Reporting. All CBO grant programs include a fraud reporting link to enable the public, grantees, or government employees to easily report fraud. If fraud is reported, the AG office will work with the CBO, the Consumer Fraud division, or other state or federal agencies to investigate the claim.
- Monitoring, Reporting, and Compliance. Colorado provides required training and short videos on each key element of federal compliance. For monitoring, Colorado employs an outside contractor to perform on-site inspections, audits, and reporting.
- Enforcement. Of course, the Colorado AG Office stands ready to enforce any grant agreement, or clawback grant awards, should such action be necessary.
NTIA is eager to collaborate with NAAG and with Attorney General Offices to ensure the BEAD program is successful and sustainable. Each state and territory has a state point of contact and an NTIA federal program officer (FPO) dedicated to working on this program. Contact information for each state can be found here. A good working relationship between the NTIA FPO and the AG or Broadband Office legal support person is essential to the success of the program.
NTIA has developed other resources and technical assistance for BEAD program design, which can be found here. Importantly, NTIA is putting in place an innovative risk/monitoring framework that states and territories can leverage to ensure grantees are complying with program requirements, deploying networks on time, and delivering service to meet their commitments. We will talk about this—and more—in a webinar on July 24. Please join us and feel free to reach out in the meantime if you have questions.
